"01 February 2013" Archive

If penalty is imposed u/s. 78, Tribunal cannot seek pre-deposit of penalty u/s. 76, as both cannot be levied simultaneously

Ronak Travels Thro Proprietor Anas Patel Vs Union of India (Gujarat High Court)

In the opinion of this court, having regard to the provisions of section 78 of the Act and more particularly the first and the fifth proviso thereto as referred to hereinabove, the Tribunal was not justified in directing the petitioner to deposit the entire amount of penalties in addition to the service tax and interest. In the light of t...

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Clearing & forwarding operations are necessary for classification under C&F agent services

Commissioner of Central Excise & Customs Vs Trade Tek Corpn. (Gujarat High Court)

Section 65(105)(j) makes services rendered to a client by a C & F Agent in relation to clearing and forwarding agent in any manner a taxable service. Term 'Clearing and Forwarding Agent' is defined under section 65(25) to mean any person who is engaged in providing any service either directly or indirectly connected with clearing and forw...

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Actual transport must for classification as courier agency

Commissioner of Central Excise & Customs Vs Patel Vishnubhai Kantilal & Co. (Gujarat High Court)

On a plain  reading of Clause (33) of Section 65 of the Act, it is apparent that the same envisages actual transportation of time-sensitive documents, goods or articles by a person, who utilises the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles. In the facts of the present c...

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Rule 6 not applies to waste like bagasse, press mud, etc. which are not a manufactured product

Balrampur Chini Mills Ltd. Vs Union of India (Allahabad High Court)

The Hon'ble Apex Court while dismissing the Civil Appeal No.2791 of 2005 preferred by the department vide judgment and order dated 21.7.2010, upheld the findings recorded by the Tribunal that reversal of 8% under 57 CC is not applicable as 'Bagassee' is not a final product, but it is a waste. It is worthwhile to mention here that in the j...

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In case of reassessment AO is bound to give reasons and dispose of assessee’s objection by passing speaking order

Alappat Jewels Vs Assistant Commissioner of Income-tax (Kerala High Court)

The Apex Court had in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19 had held that the proper course for the assessee, when he received the notice under section 148 was to seek reasons, if he so desired, for the notices. The Assessing Officer was bound to give reasons. On receipt of the reasons, the assessee was entitled to file o...

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Profit arising to mediator from Purchase & sale of land to be taxed in his hands

Commissioner of Income-tax, Central Circle Vs Krishnappa (Karnataka High Court)

From statement of one of assessees, it is clear that in respect of 39.19 acres of land, the transaction is complete and the assessees have received full consideration from 'N' as per the MOU. Hence, the transaction in respect of 39.19 acres is completed and each of the assessees have got the income of Rs. 25,07,508 in the said transaction...

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TDS U/s. 194C not applicable on machine hiring without manpower

Assistant Commissioner of Income-tax, Circle 5(1) Vs Kiran Constructions (ITAT Hyderabad)

In the instant case, the assessee was not under an obligation to carry out the work as it was not under the control of the lender and the possession of the machinery temporarily was passed to the assessee after entering into agreement with the lender. Therefore, in the present case, taking of the machinery and equipment on hire would not ...

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Winding up petition could not be entertained if supporting of money due not attached

Besto Clutches & Spares Vs Cauvery Software (Karnatak High Court)

Though Division Bench has specifically made an observation to provide an opportunity to the parties to lead evidence, that has not been complied by the parties. More particularly the petitioner in proving his claims and virtually the claim is made only on the basis of the typed script and no original material is produced and the parties a...

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Fabric design constitutes Fees for Technical Services if design made available for manufacturing garments

Sintex Industries Ltd. Vs Assistant Director of International Tax (ITAT Ahmedabad)

Now, we examine the MOU between India and US. As per this MOU, regarding para 4(b) of Article 12 of India US DTAA, it was provided that there will be no FTS if technology is not made available to the person acquiring the services. It was also specified that technology will be considered "made available" when the person acquiring the servi...

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CIT review u/s. 263 not justified If AO exercises due diligence in accepting assessee’s claim

Sudhir Kumar Agarwal Vs Commissioner of Income-tax-II, Agra (ITAT Agra)

On perusal of the A.O.'s order and material on record, we find that the CIT invoked section 263 of the Act because the CIT did not feel satisfy with the conclusion made by the A.O not on account of that the order of the A.O. was erroneous. The CIT invoked section 263 of the Act simply on account that the A.O. did not carry out the investi...

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