TIOL-DDT 2515
12 01 2015
Monday

AN assessee called Narayana Coaching Centre, a proprietary concern was taken over by Narayana Learning Pvt Ltd. The Service Tax authorities issued a Show Cause Notice to Narayana Learning Pvt Ltd for the service rendered by Narayana Coaching Centre. The demand was confirmed on Narayana Coaching Centre and not Narayana Learning Pvt Ltd.

The CESTAT observed, "it appears that no show-cause notice was issued to the present appellant; the show-cause notice is a foundation of the adjudication and without service of show-cause notice defence is denied. That makes adjudication fatal. The appellant not having been brought home to the charge following the ratio laid down by Hon'ble Supreme Court in the judgment in the case of Commissioner of C. Ex., Bangalore vs. Brindavan Beverages (P) Ltd.- 2007-TIOL-118-SC-CX the demand of Rs. 2,23,16,485/- for the year 2010-11 does not sustain. Appellant succeeds on this count."

A demand of Rs. 2.23 crores goes out of the window because they did not know as to who should be put on notice. [2013-TIOL-1984-CESTAT-BANG]

Revenue cannot keep quiet when such huge demands are lost on such technical grounds. They rushed to the High Court with an appeal. The High Court observed, " The learned Tribunal found that no show cause has been issued to the assessee. In that view of the matter, we are unable to interfere with this fact-finding. When the show cause notice was not issued to the assessee, the proceedings in connection therewith is a nullity and the adjudication thereof is also non est." 2014-TIOL-2445-HC-AP-ST

They did not exactly rush to the Supreme Court, but filed an SLP with the usual delay.

The Supreme Court magnanimously condoned the delay - but dismissed the petition on 7th January 2015 [2015-TIOL-03-SC-ST]

Revenue must be aware of the story of a battle being lost because a nail was lost.

Howzat! BCCI loses 20 crore Service Tax case in Supreme Court

BOARD of Control for Cricket in India (BCCI). BCCI entered into contracts with Taj TV Ltd., Dubai/Mauritius & TWI Ltd. of UK, Nimbus Sports, Singapore to produce audio-visual coverage of the cricket match for broadcast.

Commissioner confirmed a total service tax demand of Rs. 20,70,22,328/- along with interest thereon and imposed penalties under Sections 76, 77 and 78 of the Finance Act, 1994. Aggrieved of the same, the BCCI appealed to the CESTAT.

The Tribunal [2014-TIOL-1774-CESTAT-MUM] held:

1. Activities undertaken by the non-resident service providers squarely falls within the definition of "programme" as defined in s.65(86a) and the service providers are 'programme producers' as defined in s.65(86b) - BCCI, as a recipient, is liable to pay ST u/s 66A of the FA, 1994.

2. BCCI liable to penalty under sections 76, 77 and 78 of the Finance Act, 1994.

3. BCCI has suppressed material facts from the department and hence, extended period of time has rightly been invoked for confirmation of service tax demand.

BCCI appealed to the Supreme Court but with no success.

The Supreme Court observed, "we see no infirmity in the order passed by the Tribunal and there is no reason to interfere in these matters"

And the appeals were dismissed.

See: 2015-TIOL-04-SC-ST

Lahiri Committee in TIOL House

NETIZENS are aware that the Government had appointed a High Level Committee under the Chairmanship of Dr. Ashok Lahiri, former Chief Economic Advisor to ascertain where clarity in tax laws is required and to recommend measures to the Government in this regard.

The Committee with Dr.Lahiri and other Members, Mr.Sidhartha Pradhan, former Member of Income Tax Settlement Commission, Mr.Gautam Ray, former Chief Commissioner in CBEC along with Mr. B K Sinha, CIT in CBDT visited TIOL House on Saturday to get the views from the TIOL family. The response from our Netizens to send suggestions for the Committee was humungous.

The Committee evinced keen interest in knowing the views of our Netizens and the TIOL team explained the issues precisely. TIOL was represented by its entire Edit Team and it was an exhilarating experience for us.

Let us hope the Committee will be able to solve some of the problems and reduce the agony of the taxpayers.

TIOL is grateful to the Netizens for the huge response. Now send in your suggestions for the BUDGET 2015.

SEZ - Bifurcation of non-processing area - SEZ Rules amended

GOVERNMENT has amended the SEZ Rules to insert a new Rule 11A:

Bifurcation of non-processing area: The non-processing area can be bifurcated into two parts, namely:-

1. Where the social or commercial infrastructure and other facilities are permitted to be used by both the Special Economic Zone and Domestic Tariff Area entities: No exemptions, concessions or drawback shall be admissible for creation of such infra structure. The Customs duty, Central Excise duty, Service Tax, and such other Central levies and tax benefits already availed for creation of such infrastructure shall be refunded by the Developer in full, without interest. However, in cases of short payment of the amount refundable to the Government on account of dual use permission, interest will have to be paid at the rate of fifteen per cent per annum from the day the said amount becomes payable to the date of actual payment.

2. Where the social or commercial infrastructure and other facilities are permitted to be used only by Special Economic Zone entities:  This portion shall be bonded and physically segregated from the Domestic Tariff Area, non-processing area, specified at (1) above and the processing area of the Special Economic Zone. The infrastructure, as may be approved by the Board, for this part of non processing area shall be eligible for exemptions, concessions and drawback.

The Department of Commerce has provided certain norms with respect to are as to be earmarked for residential, commercial and other social facilities:

The area restrictions for duty paid dual use non processing area in the Special Economic Zones shall be:

(i) Housing - not more than twenty five per cent of non-processing area;

(ii) Commercial- not more than ten per cent of non-processing area;

(iii) Open area and circulation area-not less than forty five per cent of non processing area;

(iv) Social and institutional infrastructure including schools, colleges, sociocultural centres, training institutes, banks, post office, etc., in the remaining area.

Ministry of Commerce Notification., Dated: January 02, 2015 

FTP - Export Obligation Period reduced for Natural Rubber

DGFT has reduced the Export Obligation Period to six months from the date of clearance of each consignment by customs authority, wherever Natural Rubber is allowed as an input under Advance Authorisation / DFIA Schemes.

DGFT Public Notice No. 81/(RE-2013)/2009-2014,. Dated: January 09, 2015  

GST - Easier to do Business in India - World Bank President

SPEAKING at the "Vibrant Gujarat" conference, World Bank President Jim Yong Kim said,

I 've been very encouraged by the recent proposal of a Constitution Amendment bill for a Goods & Services Tax (GST), which offers an opportunity to make it substantially easier to do business in India. A GST will create one common market and substantial savings for companies on logistics, especially if its structure is uniform.

We project that India will be a bright spot in an otherwise mediocre global economic outlook. According to our projections, its economy is expected to grow 6.4 percent this year and even faster in 2016. In addition, Prime Minister Modi and his government are quickly putting in place the building blocks for even more rapid growth, streamlining the national regulatory structure, using public funds more efficiently, and promoting social inclusion.  

Air Travel by Babus - Dept of Expenditure frowns on ignorance of Revenue Officers

DEPARTMENT of Expenditure has noted that officers of field formations under Department of Revenue continue to claim ignorance of the air travel guidelines with regard to prescribed procedure for purchase of air tickets from authorized travel agents in respect of air journey performed by them. Department of Expenditure has sought clarification as to how Department of Revenue proposes to ensure that the air travel guidelines are complied with strictly in all its field formations so as to eliminate cases requiring relaxation of air travel guidelines due to ignorance of the instructions.

Department of Expenditure wants publicity to be given to air travel guidelines issued by Department of Expenditure from time to time in respective field formations of CBDT and CBEC.

CBDT F.NO.A-27017/01/2015-Ad.VI (A),. Dated: January 09, 2015

Promoted Officers in CBEC to continue working in the Board

FIVE Additional Commissioner level officers in the CBEC office who have been promoted as Commissioners are asked to continue with their present posts (perhaps in addition to their posts as Commissioners.)

The following Commissioners will continue in the Board till March 2015 - maybe for the Budget.

CBEC Office Order No. 5/2015, Dated: January 09, 2015

Commissioner on Leave since 2003

THE latest Civil List released by the CBEC on 9.1.2015 states that Ms Meenu G Krishnan, Commissioner is on leave since 31.7.2003 that is for more than 11 years. Can a Government servant be on leave for more than a decade and still can the Government claim that he/she is a Government Servant?

She is not the only officer on long leave and not traceable. While she is shown to be on leave from 2003, there are several others who are shown as on unauthorised leave. Is Ms Meenu Krishnan on authorised leave for the last 11 years?

Please also see Missing IRS Officers - Board wants details in DDT 2386 01.07.2014 

Jurisprudentiol-Tuesday's cases

Service Tax

Donations not liable to Service Tax - Time bar u/s 11B of CEA, 1944 will apply only if demand has been made/paid as duty under the law - since no demand made and tax was not payable in law, refund not time barred: CESTAT

THE appellant is a Charitable Trust. It has two halls which are given on hire for various functions. They also received donations from caterers and decorators for permitting them to use their halls. They were asked to pay Service Tax by the Superintendent on the donations received by them. As regards hire charges for the halls, they were paying Service Tax under the category of Mandap keeper.

After a few rounds of litigation up to the High Court, it was held that donations received by appellant from caterers are not leviable to Service Tax.

Income Tax

Whether, for purpose of TDS u/s 194A, decision of Special Court would prevail over ITAT order - YES: High Court

THE assessee company entered into an agreement with Fairgrowth Financial Services Ltd. (FFSL), as per which loan of different amounts were sanctioned by the FFSL in favour of assessee and the same were accepted. The said loan was against the pledge of 3,28,000 shares of United Phosphorous Ltd. As per the terms of the agreement, assessees had to repay 20% within 60 days and balance 80% within 180 days. The assesees handed over 3,28,000 shares of UPL together with duly executed transfer form to FFSL since as per the agreement the assessees had to repay 20% amount within 60 days. In the meantime FFSL illegally sold 2,28,000 shares to Syndicate Bank and sub-pledged 1,00,000 shares to NHB. In the month of June, 1992, the Government promulgated Special Court ordinance, 1992. On 2nd July, 1992, custodian appointed for FFSL. On 10.08.1992, the Syndicate Bank purchased 2,28,000/- shares and presented before UPL for registering the transfer. On 13.08.1992 UPL received intimation of sub-pledge of 1,00,000 shares with NHB. On 14.08.1992, the assessee filed Misc. Petition No.10 of 1992 against the Custodian, FFSL, Syndicate Bank, NHB and UPL. On 18.08.1992, the Ordinance was replaced by the Special Court Act, 1992. In some of the matters, the Special Court held that provisions of TDS did not apply to "payments made pursuant to Orders and Directions of Court" and directed the party to recover on its own TDS paid from Income Tax department and not to deduct TDS.

The issue before the Bench is - Whether, for purpose of TDS u/s 194A, decision of Special Court would prevail over ITAT order. YES is the answer.

Central Excise

Brand name 'Ribbons & Balloons' belonged to M/s. Bharat Cafe Pvt. Ltd. - Fact that M/s. Bharat Cafe Pvt. Ltd were not manufacturer or trader or seller of the said goods at the relevant time is of no consequence - benefit of SSI exemption not available to appellant: CESTAT

THE appellant was manufacturing cakes/pastries/biscuits/cookies/chocolates and selling these products through their franchisees. All the products were being sold under the brand name "Ribbons & Balloons". Most of the products carried the brand name and in some of the products when the goods are dispatched to the franchisees, the same are in bulk pack, the franchisees are selling the same with the above mentioned brand name. Further, the franchisees have exclusive outlets and they indicate " Ribbons and Balloons" as their name.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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