2012-TIOL-236-HC-DEL-IT
CIT, New Delhi Vs Kamdhenu Steel & Alloys Ltd (Dated : December 23, 2011)
Income tax – Sections 68, 69, 148 – Whether when by providing adequate material prima facie the assessee discharged the burden of proving the identity of shareholders, genuineness of the transaction and creditworthiness of the shareholders, Revenue is supposed to make thorough probe of nature of the transaction before it could nail the assessee and fasten it with a liability u/s 68 and 69 of the Act – Whether when the AO issues notice u/s 148 mechanically on the information supplied by the DIT (Inv.) without applying his own mind and even did not care for the apparent mistake in the details on the basis of which notice is issued, the notice is rightly quashed. - Revenue's appeal dismissed:DELHI HIGH COURT
2012-TIOL-174-ITAT-LKW
M/s Blue Star Limited Vs DCIT, Lucknow (Dated : February 8, 2012)
Income Tax - Sections 194C, 194J, 201(1), 201(1A) - Whether when the scope of work executed by the sub-contractors has not been examined, an order passed to treat the payment made u/s 194J and not 194C as applied by the assessee can still be sustained. - Case remanded : LUCKNOW ITAT
SERVICE TAX SECTION
2012-TIOL-393-CESTAT-DEL
M/s APK Identification Vs CCE, Noida (Dated : February 2, 2012)
Service Tax - Refund - Service Tax paid by Service Provider - Delay in refund claim - Power to condone - Applicability of notification - Notification No. 09/09 dt. 03-03-09 provides that the Deputy Commissioner has power to condone the delay. The delay involved is only 17 days and when a public authority is given any power, he is expected to exercise it unless there is a reason for not exercising such power. No reason has been recorded in the impugned order. Further, the time limit under Notification No.17/11-ST dated 1.3.11 is applicable to the claims filed before that date and pending on that date. The adjudicating authority should consider the claim as per the proviso of Notification 17/2011-ST dated 1.3.11 which was in force on the date when the order is issued. The claims are not time barred and the matter is remanded to the adjudicating authority to decide the case afresh, on the merits of the claim. (Para 4) - Matter remanded: DELHI CESTAT
CENTRAL EXCISE SECTION
2012-TIOL-394-CESTAT-BANG
CCE, Belgaum Vs M/s Hindustan Engineers (Dated : September 16, 2011)
Central Excise – Eligibility of CENVAT Credit on MS flats and MS angles used for manufacturing material handling equipments such as moulding tracks and bucket elevators – Essential facts pleaded before the adjudicating authority at variance with pleadings made in the reply to SCN – Respondent-assessee filed a declaration as to how flats and angles were used along with photographs in support of such declaration – Respondent-assessee not opposed to Proper Officer of Central Excise visiting their factory and inspecting material handling equipments to have been fabricated/manufactured out of MS Flats and MS Angles in question – Matter remanded to original authority to consider these materials in de novo proceedings – Based on alternative plea of respondent, if respondent found eligible for CENVAT Credit on MS flats and MS angles as inputs, they should be given that benefit in as much as department not opposed to such observations made by adjudicating authority in favour of respondent – Original dispute as to whether flats and angles could be considered as parts/components of capital goods for availing CENVAT credit still open for fresh adjudication – In case they are found to be ineligible as capital goods, alternative claim for availing credit on the same items as inputs to be considered – Impugned order set aside and matter remanded for de novo adjudication – Rule 2(a) read with Rule 2(k) of CENVAT Credit Rules, 2004 - Appeal allowed by way of remand : BANGALORE CESTAT
CIT, New Delhi Vs Kamdhenu Steel & Alloys Ltd (Dated : December 23, 2011)
Income tax – Sections 68, 69, 148 – Whether when by providing adequate material prima facie the assessee discharged the burden of proving the identity of shareholders, genuineness of the transaction and creditworthiness of the shareholders, Revenue is supposed to make thorough probe of nature of the transaction before it could nail the assessee and fasten it with a liability u/s 68 and 69 of the Act – Whether when the AO issues notice u/s 148 mechanically on the information supplied by the DIT (Inv.) without applying his own mind and even did not care for the apparent mistake in the details on the basis of which notice is issued, the notice is rightly quashed. - Revenue's appeal dismissed:DELHI HIGH COURT
2012-TIOL-174-ITAT-LKW
M/s Blue Star Limited Vs DCIT, Lucknow (Dated : February 8, 2012)
Income Tax - Sections 194C, 194J, 201(1), 201(1A) - Whether when the scope of work executed by the sub-contractors has not been examined, an order passed to treat the payment made u/s 194J and not 194C as applied by the assessee can still be sustained. - Case remanded : LUCKNOW ITAT
SERVICE TAX SECTION
2012-TIOL-393-CESTAT-DEL
M/s APK Identification Vs CCE, Noida (Dated : February 2, 2012)
Service Tax - Refund - Service Tax paid by Service Provider - Delay in refund claim - Power to condone - Applicability of notification - Notification No. 09/09 dt. 03-03-09 provides that the Deputy Commissioner has power to condone the delay. The delay involved is only 17 days and when a public authority is given any power, he is expected to exercise it unless there is a reason for not exercising such power. No reason has been recorded in the impugned order. Further, the time limit under Notification No.17/11-ST dated 1.3.11 is applicable to the claims filed before that date and pending on that date. The adjudicating authority should consider the claim as per the proviso of Notification 17/2011-ST dated 1.3.11 which was in force on the date when the order is issued. The claims are not time barred and the matter is remanded to the adjudicating authority to decide the case afresh, on the merits of the claim. (Para 4) - Matter remanded: DELHI CESTAT
CENTRAL EXCISE SECTION
2012-TIOL-394-CESTAT-BANG
CCE, Belgaum Vs M/s Hindustan Engineers (Dated : September 16, 2011)
Central Excise – Eligibility of CENVAT Credit on MS flats and MS angles used for manufacturing material handling equipments such as moulding tracks and bucket elevators – Essential facts pleaded before the adjudicating authority at variance with pleadings made in the reply to SCN – Respondent-assessee filed a declaration as to how flats and angles were used along with photographs in support of such declaration – Respondent-assessee not opposed to Proper Officer of Central Excise visiting their factory and inspecting material handling equipments to have been fabricated/manufactured out of MS Flats and MS Angles in question – Matter remanded to original authority to consider these materials in de novo proceedings – Based on alternative plea of respondent, if respondent found eligible for CENVAT Credit on MS flats and MS angles as inputs, they should be given that benefit in as much as department not opposed to such observations made by adjudicating authority in favour of respondent – Original dispute as to whether flats and angles could be considered as parts/components of capital goods for availing CENVAT credit still open for fresh adjudication – In case they are found to be ineligible as capital goods, alternative claim for availing credit on the same items as inputs to be considered – Impugned order set aside and matter remanded for de novo adjudication – Rule 2(a) read with Rule 2(k) of CENVAT Credit Rules, 2004 - Appeal allowed by way of remand : BANGALORE CESTAT
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