Whether a person who is not actual service provider, but discharges the Service tax liability on the Taxable Services, under Section 68(2) of the Finance Act, 1994, as a deemed service provider, is entitled to avail the Cenvat Credit on inputs/inputs services/Capital Goods for payment of GTA Services tax, even if he is not using such inputs/input services/capital goods for providing taxable services? Counsel for the revenue fairly states that the matter is covered against the revenue by order of this Court dated 6.5.2010 in CEA No.99 of 2008 CCE v. M/s Nahar Industrial Enterprises Ltd . etc . Appeal Dismissed
Even higher liability of the assessee had to be treated to be in issue before the Commissioner (Appeals). Thus, exercise of revisional jurisdiction under Section 84(4) of the Finance Act, 1994 when appeal had been preferred was not permissible. The view taken by the Tribunal is consistent with above statutory provision.
CIT v Grewal Brothers – No doubt the firm and the partners may be separate entities for income tax and it may be permissible for a firm to give a contract to its partners and deduct tax from the payment made as per s 194C, but it has to be determined in the facts and circumstances of each case whether there was any separate subcontract or the firm merely acted as an agent as pleaded in the present case. The case of the assessee is that it was the partners who were executing the transportation contract by using their trucks and the payment from the companies was routed through the firm as an agent. The CIT(A) and the Tribunal accepted this plea on facts. Once this plea was upheld, it cannot be held that there was a separate contract between the firm and the partners in which case the firm was required to deduct tax from the payment made to its partners under s 194C.
M/s Jai Ganesh Processors Vs. CCE, C, Chandigarh (High Court of Punjab and Haryana at Chandigarh) – Even though the Hon’ble Supreme Court held that the assessee would not get benefit of exemption if duty had not been paid on inputs, the assessee held a bonafide view about interpretation of the notification. Thus, it may not be a case of deliberate evasion of duty. While the Tribunal rightly rejected the claim of the assessee that exemption was applicable, the setting aside of penalty cannot be held to be illegal. Levy of penalty is not automatic merely because an exemption was wrongly availed, even when plea of the assessee is found to be erroneous.
The argument that if income is assessed by estimation on GP rate, no other disallowance can be made is not of universal application. If expenditure which is legally not permissible has been taken into account that can certainly be disallowed even where income is estimated. Though the provisions of block assessment are special, the argument that they are a complete Code and the other provisions cannot apply is not acceptable. Section 40A(3) of the Income tax Act applies to block proceedings
CIT vs. Swaraj Mazda Ltd (P&H High Court)- Learned counsel for the revenue has not been able to dispute the fact that there is no challenge to the finding that certificate issued to the assessee under Section 195(2) was never cancelled and in absence thereof, the assessee could not be treated as assessee in default. In view of the said unchallenged finding, the order of the Tribunal has to be sustained. Once it is so, we are of the view that the questions referred need not be gone into.
Recently, the High Court of Punjab and Haryana (the High Court) in the case of CIT v. Rockman Cycle Industries Private Limited [201 1-TIOL-88-HC-P&H-IT-LB] held that if the taxpayers used certain devices to conceal true nature of the transaction, it was the duty of the taxing authority to unravel the device and determine its true character.
Mayfair Resorts Vs. CCEC, Ludhiana – The assessee is registered with the Service Tax Department under the category ‘Mandap Keeper’. During audit for the period of 2004-05, it was noticed by the Department that the assessee surrendered Rs.35 lacs to the Income Tax Department as additional taxable income on the said amount being found cash at the premises of the assessee and the assessee being unable to explain the source of income. According to the department, since only business of the assessee was providing service of ‘Mandap Keeper’, the amount represented proceeds of services provided by the assessee. Accordingly, amount was treated as subject to service tax vide order-in-original dated 28.1.2009. On appeal, the said order was set aside on the ground that without making any enquiry and in absence of any statutory presumption, the department could not treat the amount as representing proceeds of services provided by the assessee. The view taken by the Tribunal to this effect in Kipps Education Centre Bathinda Vs. CCE Chandigarh 2009(13) STR 422 was followed. The said order has been affirmed by the Tribunal.
The Commissioner of Income Tax (CIT) Versus M/s Mukta Metal Works – Whether the Tribunal is right in holding at page 68 of the order that the office note dated 21.05.2001 which was appended to 158BC order dated 21.5.2001 and is part of the said order, does not constitute a satisfaction note within the parameter of Section 158 BD of the Income Tax Act, 1961 in respect of the person who has borrowed money through the assessee broker who is the searched person for the purpose of order U/s 158 BC of the Income Tax Act, 1961.
Commissioner Of Central Excise (CCE) vs M/S Patran Pipes (P) Ltd. – There is concurrent finding of fact recorded by the Commissioner and the Tribunal that there was nothing to show that the amount of cash seized represented clandestine sale of excisable goods.
