TaxTMI Updates e-Newsletter
Jul 23,2018

Taxable supply - zero rated supply - export of services - place of supply - admissibility of input tax credit - jurisdiction of Advance Ruling Authority

Taxable supply - admissibility of input tax credit - Taxability of the services provided by Esprit India to its associate concern in Hong Kong (EDCFE) under the GST regime. - HELD THAT: - The Authority examined the services enumerated by the applicant against the Explanatory Notes to the Scheme of Classification of Services and Notification No. 11/2017-Central Tax (Rate). It identified the nature of each service (market research, trademark protection/support, vendor identification, inspection/quality control, logistics and related management services), mapped them to the appropriate SAC codes and applied the relevant entries in the Notification to conclude that these services qualify as taxable services. The Authority therefore held that the services are taxable and chargeable to GST under forward charge at the rates indicated in the Notification. [Paras 6, 9]

The services rendered by Esprit India to EDCFE are taxable supplies and chargeable to GST under forward charge.

Export of services - zero rated supply - place of supply - jurisdiction of Advance Ruling Authority - Whether the services qualify as export of services and hence as zero-rated supplies. - HELD THAT: - The statutory definition of 'export of services' under the IGST Act makes 'place of supply' a determinative element. Determination of whether the place of supply is outside India is therefore essential to decide export/zero-rating. Section 97(2) (as explained by the Authority) limits the matters which the Advance Ruling Authority may decide and does not empower it to determine questions that require examination of the place of supply. Consequently, the Authority found that it lacks jurisdiction to decide whether the services constitute export of services/zero-rated supply because that question necessarily entails determination of the place of supply. [Paras 7, 9]

Authority lacks jurisdiction to rule on whether the services are export of services/zero-rated supplies; the question cannot be decided by the AAR.

Admissibility of input tax credit - zero rated supply - jurisdiction of Advance Ruling Authority - Whether Esprit India is eligible to claim refund of GST paid on inputs and input services in relation to the services provided to EDCFE. - HELD THAT: - Eligibility for refund in respect of supplies treated as zero-rated is governed by the conditions for export of services and the refund provisions of the CGST Act (including Section 54) and the IGST Act. Because the question of export/zero-rating could not be decided by the Authority for want of jurisdiction (as it depends on place of supply), the corollary issue of refund eligibility, which is contingent upon export/zero-rate treatment, likewise falls outside the Authority's jurisdiction and cannot be ruled upon by the AAR. The competent officer under the CGST/HGST Act and rules is the proper authority to examine such refund claims. [Paras 8, 9]

Authority cannot rule on refund eligibility of GST on inputs/input services for want of jurisdiction; such claims are to be examined by the proper officer under the CGST/HGST Act.

Final Conclusion: The Authority ruled that the services provided by Esprit India to its Hong Kong associate are taxable supplies chargeable to GST under forward charge. Questions whether those services qualify as export of services/zero-rated supplies and whether Esprit India is entitled to refund of GST on inputs/input services could not be decided by the Advance Ruling Authority for want of jurisdiction, as they require determination of the place of supply and therefore must be determined by the appropriate authority under the GST law.

Unit container - GST levy on frozen meat put up in unit containers - exemption under integrated tax notifications for goods not put up in unit containers

Unit container - GST levy on frozen meat put up in unit containers - Whether whole sheep/goat carcasses frozen and packed in primary LDPE bags (no weight indicated) and thereafter placed in secondary HDPE bags bearing varying manually marked total weights qualify as being put up in a unit container. - HELD THAT: - The explanation to the relevant notification defines unit container as a package designed to hold a pre-determined quantity or number which is indicated on such package. The applicant's primary LDPE bags are not sealed and contain no indicated weight; secondary HDPE bags contain varying actual total weights marked manually and do not hold standardized pre-determined quantities. Reliance on tribunal decisions that distinguish between standardized packages and non-uniform packaging supports the conclusion that packaging which does not hold a uniform pre-determined quantity and lacks indication of such quantity cannot be treated as a unit container. Applying this principle to the facts, the packaging described does not meet the definition of unit container and therefore does not attract the classification as goods put up in unit containers for the purpose of the notified GST entries.

Whole sheep/goat carcasses packed as described do not qualify as put up in a unit container.

Unit container - GST levy on frozen meat put up in unit containers - Whether whole frozen poultry (whole chickens) packed in primary LDPE bags (no weight indicated) and thereafter placed in secondary HDPE bags containing 20-25 primary packs with varying manually marked total weights qualify as being put up in a unit container. - HELD THAT: - The statutory explanation requires that a unit container be designed to hold a pre-determined quantity or number and that such quantity be indicated on the package. The applicant's practice of placing non-sealed primary LDPE bags without indicated weight into secondary HDPE bags which do not contain a fixed number of primary packs and show varying total weights does not amount to packaging standardized to a predetermined indicated quantity. Precedents cited distinguish standardized, pre-printed quantity packaging (which may be unit containers) from non-standardized manual packings. On the facts, the poultry packaging lacks the features of a unit container and therefore cannot be classified as goods put up in unit containers for GST purposes.

Whole frozen chickens packed as described do not qualify as put up in a unit container.

Exemption under integrated tax notifications for goods not put up in unit containers - GST levy on frozen meat put up in unit containers - Consequent classification and applicability of notified exemption or rate where the packaging is not a unit container for the relevant tax periods. - HELD THAT: - A conjoint reading of the relevant integrated tax notifications shows that goods of tariff headings 0204 and 0207 are subject to tax only if frozen and put up in unit containers (within the earlier notification regime) and, from the later notification, additionally require fulfillment of brand-related conditions to attract the specified concessional rate. Since the applicant's mutton and poultry packings do not qualify as unit containers, they do not fall within the notified entries that impose tax on goods 'put up in unit containers' for the period W.e.f. 1st July, 2017 to 14th November, 2017, and likewise are outside the charged categories under the notifications effective W.e.f. from 15th November, 2017 onwards. Accordingly, the products as packed by the applicant fall within the exemption entries referenced in the notifications for the respective periods.

The products as packed by the applicant are not liable under the notified entries for goods put up in unit containers and thus fall under the exemption entries for the stated tax periods.

Final Conclusion: The Authority rules that the applicant's described packing of frozen sheep/goat carcasses and whole chickens does not constitute packing in a unit container; consequently, for the periods W.e.f. 1st July, 2017 to 14th November, 2017 and W.e.f. from 15th November, 2017 onwards, such products as packed do not fall within the notified taxable entries for goods 'put up in unit containers' and are covered by the exemption entries specified in the respective integrated tax notifications.

Classification of goods under ITC HS - Distinction between mounted and not mounted friction material - Parts and accessories of motor vehicles (HSN 8708) - Brakes and servo brakes; parts thereof (HSN 87083000) - Applicability of GST rate notifications to motor vehicle parts

Distinction between mounted and not mounted friction material - Classification of goods under ITC HS - Brakes and servo brakes; parts thereof (HSN 87083000) - Brake Pads manufactured by the applicant (friction material mounted on a metal back plate) are classifiable under HSN 87083000 and not under HSN 6813. - HELD THAT: - The heading for ITC HS 6813 expressly covers 'Friction Material And Articles Thereof ... Not Mounted, For Brakes' and therefore excludes frictional materials that are mounted. The applicant manufactures brake pads by pasting (mounting) frictional material on a metal back plate; consequently the product does not fall within the scope of HSN 6813. Heading 8708 covers 'Parts and accessories of motor vehicles' and HSN 87083000 specifically covers 'Brakes and servo brakes; parts thereof.' Given that the applicant's mounted brake pads are parts for motor vehicles, the Authority held they are classifiable under HSN 87083000.

Brake Pads produced by mounting friction material on a metal plate are not covered by HSN 6813 and are classifiable under HSN 87083000.

Parts and accessories of motor vehicles (HSN 8708) - Applicability of GST rate notifications to motor vehicle parts - The correct GST rate on the applicant's brake pads depends on their classification as parts of motor vehicles of headings 8701-8705 (other than specified tractor parts) and the applicable notifications. - HELD THAT: - Having held the brake pads to be parts of motor vehicles under HSN 87083000, the Authority applied the rate notifications in force. Notification No. 1/2017 Central Tax (Rate) dated 28.06.2017 and the corresponding State notification prescribe tax rates for parts of motor vehicles classifiable under heading 8708. Accordingly, brake pads that are parts and accessories of motor vehicles of headings 8701-8705 (other than specified parts of tractors) attract the higher rate set out in those notifications, while brake pads for use as brake assembly and parts thereof for tractors are subject to the lower rate specified for such tractor parts.

Brake pads classifiable as parts and accessories of motor vehicles of headings 8701-8705 (other than specified tractor parts) attract the rate prescribed for HSN 8708 by the notifications; brake pads for tractors attract the rate specified for tractor parts.

Final Conclusion: The Authority ruled that the applicant's brake pads, being friction material mounted on a metal plate, are classifiable under HSN 87083000; pursuant to the relevant notifications, such brake pads when used as parts/accessories of motor vehicles of headings 8701-8705 (other than specified tractor parts) attract the higher GST rate prescribed for HSN 8708, whereas brake pads for tractors attract the lower rate applicable to tractor brake assemblies/parts.

Supply of food as supply of services - Composition levy for supplies under paragraph 6(b) of Schedule II

Supply of food as supply of services - Take-away food counter - Composition levy - Supply of manufactured food items through a take-away counter without any sitting facility falls within paragraph 6(b) of Schedule II and is to be treated as a supply of services, not as manufacture of goods for composition purposes. - HELD THAT: - The Authority held that, by virtue of section 7(1)(d) read with paragraph 6(b) of Schedule II, supply of food or other article for human consumption for consideration is treated as a supply of services. The statutory treatment does not depend on the existence of sitting or dining facilities. Since the applicant's activity consisted of supply of prepared food for human consumption, it was covered by paragraph 6(b), and consequently, for composition levy, the applicable rate was that prescribed for persons making such supplies under section 10(1)(b). [Paras 9]

The applicant's take-away food business was ruled to be a supply of services, and if composition scheme is opted, tax is payable at 2.5 per cent under the CGST Act and 2.5 per cent under the U.P. SGST Act, aggregating to 5 per cent.

Final Conclusion: The Authority answered the reference by holding that supply of prepared food through a counter on take-away basis, even without seating facility, is a supply of services under paragraph 6(b) of Schedule II. Accordingly, under the composition scheme, the applicable rate is 5 per cent in aggregate.

Writ of mandamus - reopening of online portal - manual acceptance of statutory applications - due verification of claimed credits - right to claim transitional credit

Writ of mandamus - reopening of online portal - manual acceptance of statutory applications - right to claim transitional credit - due verification of claimed credits - Direction to respondents to reopen the GST TRAN-1 portal or, failing that, to entertain and decide the petitioner's GST TRAN-1 application manually after verification and to permit electronic payment/use of credits. - HELD THAT: - The petitioner sought issuance of a writ of mandamus directing respondent No.2 to make recommendations to the State Government to extend the time for filing GST TRAN-1, alleging that on the last date the electronic system did not respond and thereby prevented filing. The Court directed respondents to reopen the portal within two weeks; if they fail to do so, they must entertain the petitioner's GST TRAN-1 manually and pass orders after due verification of the claimed credits. The respondents are also to ensure that the petitioner is permitted to pay its taxes through the regular electronic system so that any credit allowed may be used. The order contemplates verification of claimed transitional credit before acceptance and determination of tax consequences.

Respondents directed to reopen the portal within two weeks or alternatively to accept and decide the petitioner's GST TRAN-1 manually after due verification, and to allow electronic payment/use of any credit; respondents to file counter affidavit within a month.

Final Conclusion: The writ petition was disposed by directing the GST portal to be reopened within two weeks or, if not reopened, to permit manual filing and consideration of the petitioner's GST TRAN-1 with due verification; respondents to file a counter affidavit within one month and the matter was listed for further consideration.

Interim relief in tax seizure - release of seized goods on bank guarantee - penalty under Section 129(3) of the U.P. GST Act, 2017 - appeal under Section 107(1) of the U.P. GST Act, 2017 - constitution of appellate tribunal under GST - responsibility of Union for constituting appellate tribunal

Interim relief in tax seizure - release of seized goods on bank guarantee - Grant of interim protection and release of seized goods and vehicle on furnishing of bank guarantee. - HELD THAT: - After hearing counsel and perusal of records, the Court granted interim protection by directing release of the seized goods and the vehicle forthwith on the petitioner furnishing a bank guarantee for the amount indicated by the Court. The order furnishes interim relief while leaving the substantive challenge to the penalty order and appeal process open for adjudication.

Seized goods and vehicle to be released on furnishing of a bank guarantee of Rs. 5,00000/-.

Appeal under Section 107(1) of the U.P. GST Act, 2017 - penalty under Section 129(3) of the U.P. GST Act, 2017 - Petition challenges the penalty order passed under Section 129(3) and its confirmation by the first appellate authority under the statutory appeal provision. - HELD THAT: - The Court noted that the petitioner has assailed the seizure and penalty proceedings initiated under Section 129(3) and the dismissal of the appeal before the Additional Commissioner under Section 107(1). The order records these contentions as the subject-matter of the writ petition and proceeds to grant interim relief without deciding the merits of the penalty or the appeal outcome.

The challenge to the penalty and its confirmation is admitted for consideration in the writ petition; interim relief granted without adjudication on merits.

Constitution of appellate tribunal under GST - responsibility of Union for constituting appellate tribunal - Requirement that the appellate Tribunal under the GST framework be constituted and the allocation of responsibility for its constitution to the Union government. - HELD THAT: - The Court observed that provisions dealing with constitution and procedure of the appellate Tribunal exist in the statute but no Tribunal has yet been constituted. Learned Standing Counsel conceded that constitution of the appellate Tribunal is for the GST Council/Union to effectuate. The Court therefore directed steps to be taken for explaining non-establishment and progression towards constitution, while not deciding the substantive legal effect of the absence of the Tribunal.

Directed that the Union be impleaded as respondent and that the Principal Secretary file an affidavit detailing non-establishment of the Tribunal and steps taken.

Procedural directions for impleadment and affidavits - Procedural directions concerning parties, service, and filing of affidavits and pleadings in relation to the writ petition. - HELD THAT: - The Court directed the petitioner to add the Union of India as respondent No. 5 in the memo of appeal and to serve a copy of the petition and this order on the Senior Standing Counsel for the Union. The Principal Secretary (Tax and Institutional Registration) was directed to file a personal affidavit detailing reasons for non-establishment of the Tribunal and steps taken. The Standing Counsel was granted two weeks to file counter affidavits on the Tribunal constitution and on the revision petition contents, and the petitioner one week thereafter to file a rejoinder. The matter was listed for the specified date.

Union to be impleaded and served; Principal Secretary to file personal affidavit; two weeks for respondents' counter and one week for rejoinder; matter listed on 2nd August, 2018.

Final Conclusion: Interim protection granted by ordering release of seized goods and vehicle on bank guarantee; Union of India to be impleaded and served; Principal Secretary to file a personal affidavit regarding non-establishment of the GST appellate Tribunal; respondents given two weeks to file counter affidavits and petitioner one week for rejoinder; matter listed for further hearing.

Summary order. [Delay condoned; Special Leave Petition dismissed]

Interference with impugned order - dismissal of special leave petition - condonation of delay

Condonation of delay - Condonation of delay in filing the special leave petitions was allowed. - HELD THAT: - The Court considered the application for condonation and, after hearing, recorded satisfaction with the explanation for delay and directed that the delay be condoned. No separate or extended reasoning was provided; the order records grant of condonation as a preliminary step to adjudication on merits.

Delay in filing is condoned.

Interference with impugned order - dismissal of special leave petition - Whether the impugned order(s) called for interference under the Court's special leave jurisdiction. - HELD THAT: - The Court examined the contentions and the impugned order(s) and found no ground warranting interference. There is no recording of any favourable legal principle or factual error that would justify exercising the Court's discretionary jurisdiction to admit the special leave petitions. Accordingly, the petitions were considered on merits and rejected.

No interference is warranted; the special leave petitions are dismissed.

Final Conclusion: The applications for condonation of delay were allowed and, on merits, the special leave petitions were dismissed for lack of any ground to interfere with the impugned order(s); pending applications, if any, are disposed of.

Summary order. The Special Leave Petition is dismissed; delay condoned; pending applications, if any, stand disposed of.

Summary order. The special leave petition is dismissed on the ground of inordinate delay of 86 days in filing, which was not satisfactorily explained.

Release of seizure proceeds - interest on refund of seized proceeds - liability to pay warehouse charges - bank guarantee to secure tax liability - effect of Income Tax Settlement Commission order on interest claims - mandamus for release of funds

Release of seizure proceeds - interest on refund of seized proceeds - effect of Income Tax Settlement Commission order on interest claims - Petitioner entitled to release of Rs. 6,24,260 lying with the Income Tax authority with interest at 12% per annum from 24th February, 2015 until actual payment. - HELD THAT: - The Settlement Commission finally fixed the tax liabilities and, on 25th February, 2015, passed an order which settled the amounts due and waived interest under one provision. The Court held that because the petitioner persisted with the matter until the Settlement Commission's final order, it cannot claim interest from the earlier date of auction or seizure. Applying the Settlement Commission's finality, the Court awarded interest at 12% per annum from 24th February, 2015 (the date proximate to the Settlement Commission's order) until actual payment and directed release of the sum held by the Income Tax authority. The direction to pay interest and release the amount was made with a compliance timeline of four weeks from production of a certified copy of the order. [Paras 11, 12]

Direct release of Rs. 6,24,260 with interest at 12% p.a. from 24th February, 2015 until payment; compliance within four weeks on production of certified copy.

Liability to pay warehouse charges - bank guarantee to secure tax liability - Claim for refund/compensation of warehouse charges paid by the Department rejected. - HELD THAT: - The petitioner was directed by the assessing authority to furnish a bank guarantee for an amount sufficient to secure the tax liability. The petitioner furnished a smaller guarantee than directed, and consequently 1200 bags of seized sugar remained in warehouse custody and were ultimately auctioned. The Court found that the Department's payment of warehouse charges arose because the petitioner did not comply with the bank guarantee direction; therefore the Department was not at fault and the petitioner is not entitled to recover the warehouse charges from the Department. [Paras 10]

Petitioner's claim for refund/compensation of warehouse charges paid by the Department is rejected.

Final Conclusion: Writ petition partly allowed: the respondent-authority is directed to release Rs. 6,24,260 with interest at 12% per annum from 24th February, 2015 until actual payment within four weeks on production of certified copy; claim for warehouse charges is rejected.

Suo motu power of revision under Section 263 - erroneous and prejudicial to the interest of Revenue - requirement of material on record for exercise of revisionary power - unexplained cash credit under Section 68

Suo motu power of revision under Section 263 - requirement of material on record for exercise of revisionary power - Whether the Commissioner was justified in invoking revisionary jurisdiction under Section 263 on the record before him. - HELD THAT: - The Court reaffirmed that exercise of suo motu revision under Section 263 requires the Commissioner to form an opinion, on materials available on the record of the proceeding, that the assessment order is both erroneous and prejudicial to the interests of Revenue. That power is not arbitrary or unbounded and must be exercised only when the two statutory conditions are satisfied on the basis of record material. In the present case the Assessing Officer had examined books, called for explanations and documents, and had recorded satisfaction in the assessment order. The material on record did not support the formation of a contrary opinion by the Commissioner that the assessment was erroneous and prejudicial. Consequently the Commissioner lacked sufficient material to validly exercise revisional jurisdiction under Section 263. [Paras 5, 9, 10]

Revision under Section 263 could not be validly exercised as the requisite opinion was not supported by material on record.

Unexplained cash credit under Section 68 - erroneous and prejudicial to the interest of Revenue - Whether the additions treated as unexplained cash credits were justified and whether the Tribunal was right in deleting those additions. - HELD THAT: - The Tribunal found, on scrutiny of the assessment record and accounting entries, that the assessee had furnished explanations, bank reconciliations and supporting documents showing that certain cheques were not encashed and that corresponding entries had been reversed; similarly, explanations were given for loans from family members with supporting cheques and reconciliation. The High Court agreed that there was no illegality in the accounting treatment and that the Assessing Officer had accepted the explanations on record. In view of the material produced and examined by the A.O., the additions treated as unexplained cash credits were not sustainable and the Tribunal rightly deleted them. [Paras 6, 7, 9]

Additions as unexplained cash credits were deleted; the Tribunal's deletion is affirmed.

Final Conclusion: The appeal is dismissed; the Tribunal's order upholding deletion of the additions and holding that the Commissioner lacked justification to exercise revisionary jurisdiction under Section 263 is affirmed.

Condonation of delay in filing revision - scope of powers in revision under Section 264 of the Income-tax Act - restoration of revision for adjudication on merits - principles of natural justice - maintainability of claim not made in the return

Condonation of delay in filing revision - restoration of revision for adjudication on merits - Whether the Principal Commissioner misdirected himself in adjudicating the merits of the Revision Application after rejecting the application for condonation of delay, and whether the delay should be condoned with restoration of the Revision Application. - HELD THAT: - The Court held that the jurisdiction to examine the merits of a Revision Application arises only after the condonation of delay; therefore the Principal Commissioner erred in proceeding to consider and decide the merits after rejecting the condonation application. On the facts, the petitioner filed the Revision Application within a month of the assessing officer's order rejecting the claim for the subsequent year, and the petitioner's explanation that the claim was pursued only after that order constituted a reasonable cause for delay. In these circumstances the High Court condoned the delay, set aside the impugned order and directed restoration of the Revision Application to the Principal Commissioner for fresh disposal on merits after affording opportunity in accordance with the principles of natural justice. [Paras 4, 5, 6, 11]

Impugned order set aside; delay condoned and the Revision Application dated 22nd April, 2016 restored to the Principal Commissioner for fresh disposal on merits after hearing the parties.

Scope of powers in revision under Section 264 of the Income-tax Act - maintainability of claim not made in the return - principles of natural justice - Whether restoration of the Revision Application would be futile because the claimed deduction was not made in the original or revised return for Assessment Year 2012-13, and whether the Principal Commissioner should decide maintainability and merits afresh. - HELD THAT: - The High Court declined to accept the Revenue's submission that restoration would be futile. The Court refrained from expressing any view on the merits or on the question whether a claim not made in the return can be entertained in revision, noting conflicting authorities and that such issues require adjudication by the competent authority. Accordingly the matter was remitted to the Principal Commissioner to consider maintainability and merits afresh, after hearing the parties and applying applicable legal precedents, without the High Court expressing any opinion on substantive questions. [Paras 7, 8, 9, 10, 11]

Restoration ordered for fresh adjudication; questions as to maintainability of a claim not made in the return and merits left open for decision by the Principal Commissioner after hearing the parties.

Final Conclusion: The High Court set aside the Principal Commissioner's order dated 23rd March, 2018, condoned the delay in filing the Revision Application, and restored the Revision Application to the Principal Commissioner for fresh disposal on merits after affording the parties an opportunity in accordance with the principles of natural justice; questions of maintainability and substantive merits were left to be decided by the Principal Commissioner.

Deduction under Section 80IA(4) - character of receipt - income from business versus income from house property - approval by designated authority for industrial park - finality of Commissioner of Income Tax (Appeals) decision - tribunal remand not permissible on issue already decided - effect of a subsequent Supreme Court variation under Section 262

Tribunal remand not permissible on issue already decided - finality of Commissioner of Income Tax (Appeals) decision - Whether the Tribunal was justified in remanding the matter to examine the character of the receipt when the Commissioner of Income Tax (Appeals) had finally held the assessee eligible for deduction under Section 80IA(4)(iii) and the Revenue had not challenged that relief before the Tribunal. - HELD THAT: - The High Court held that where the Commissioner of Income Tax (Appeals) had determined that the assessee complied with the eligibility requirements for deduction under Section 80IA(4)(iii) and the Revenue had not contested that relief before the Tribunal, a further remand by the Tribunal to inquire into the character of the receipt was academic and unjustified. The court observed that the head under which income is assessed does not affect entitlement to the exemption once eligibility under Section 80IA(4)(iii) is accepted, and therefore no useful purpose would be served by re-opening an issue which had reached finality before the CIT(A). The Tribunal's order of remand was set aside for being unnecessary and beyond scope where no grievance on the deduction was pursued by Revenue. [Paras 6, 7, 8]

Tribunal's remand was improper and set aside; no further enquiry into character of receipt was required where CIT(A)'s decision on 80IA eligibility was not challenged.

Deduction under Section 80IA(4) - approval by designated authority for industrial park - income from business versus income from house property - Whether the assessee was entitled to claim deduction under Section 80IA(4)(iii) and whether the income from the industrial park is assessable as income from business. - HELD THAT: - Applying the Division Bench's earlier reasoning in the assessee's own case for earlier assessment years, the court noted that the assessee had obtained approval from the competent authority for setting up an industrial park under the notified scheme and that the activities fall within development, operation and maintenance of an industrial park. The CIT(A) had held the unit eligible for deduction under Section 80IA(4)(iii) and had also held that the lease rental was income from business. The High Court endorsed that position, observing that entitlement to deduction under Section 80IA is determined by eligibility criteria and is not defeated by the head under which the income is assessed; accordingly the assessee is entitled to the deduction and the income is assessable as business income. [Paras 6]

Assessee entitled to deduction under Section 80IA(4)(iii) and the income from the industrial park is assessable as income from business.

Effect of a subsequent Supreme Court variation under Section 262 - Whether pendency of an appeal to the Supreme Court against the Division Bench's earlier decision prevents the High Court from following that Division Bench decision in the present appeal. - HELD THAT: - The court observed that Section 262 of the Income Tax Act provides the mechanism for giving effect to any variation or reversal by the Supreme Court and therefore the pendency of the Division Bench's decision before the Supreme Court does not preclude the High Court from applying the Division Bench precedent in a subsequent case. Consequently, the fact that the earlier Division Bench judgment was under challenge in the Supreme Court was not an impediment to following that decision in the instant appeal. [Paras 8, 9]

Pendency of the earlier Division Bench judgment in the Supreme Court does not prevent the High Court from applying that precedent; the appeal proceeds accordingly.

Final Conclusion: Following the Division Bench precedent in the assessee's own case, the Tribunal's remand was set aside; the assessee is entitled to deduction under Section 80IA(4)(iii) and the income is assessable as business income; the pending challenge to the earlier Division Bench decision in the Supreme Court did not prevent application of that precedent, and the tax appeal is dismissed.

True and full disclosure - settlement application - existence of AOP - revision of disclosures - limited judicial review - perversity, malafide or breach of natural justice - separate settlement proceedings for each assessment year

True and full disclosure - existence of AOP - settlement application - revision of disclosures - Whether the Settlement Commission was justified in rejecting the petitioner's application for settlement for A.Y. 1991-92 to 1994-95 on the ground of failure to make true and full disclosures and on findings that the alleged AOP did not exist and that the petitioner repeatedly revised disclosures. - HELD THAT: - The Court upheld the Settlement Commission's factual findings that (i) there was no documentary evidence to support the petitioner's claim of an AOP and the references during search were unsupported, and (ii) the petitioner repeatedly revised and altered his disclosures and offers during the settlement proceedings, including significant changes prompted by departmental objections. These findings were treated as primary findings of fact which do not invite interference absent perversity, malafide or breach of natural justice. The Court applied the principle that full and true disclosure at the outset is a precondition for settlement proceedings and noted binding authority emphasising that post-application revisions of undisclosed income indicate the initial disclosure was not true; permitting such revisions would amount to permitting a fresh application. Considering the interconnectedness of the AOP issue and the revised disclosures across the block assessment years, the Court concluded the Settlement Commission legitimately found lack of true and full disclosure affecting the settlement for the years in question. [Paras 7, 8, 9, 10, 11]

The Settlement Commission's rejection of the settlement application for A.Y. 1991-92 to 1994-95 on grounds of non-existence of the alleged AOP and repeated revision of disclosures was sustained; no interference was warranted.

Separate settlement proceedings for each assessment year - settlement application - Whether the petitioner's reliance on the principle that settlement applications are separate and distinct for each assessment year required acceptance in the present block assessment context. - HELD THAT: - The Court distinguished precedents holding that settlement for each year is separate where those cases did not involve block assessment proceedings. It observed that in the present case the Settlement Commission's finding of lack of true and full disclosure and the petitioner's flip flop in disclosures had co-relation across the block years, and therefore the principle of separate-year dissection did not mandate allowing settlement for some years while rejecting others. The Court therefore rejected the petitioner's submission that settlement should have proceeded for A.Y. 1993-94 and 1994-95 notwithstanding findings affecting earlier years. [Paras 12]

The contention that settlement proceedings must be treated as separate year-wise, so as to sustain settlement for some years despite rejection for others, was rejected on the facts of the block assessment; the Ashish Prafulbhai Patel decision was distinguished.

Final Conclusion: The petition is dismissed; the High Court declined to interfere with the Settlement Commission's order rejecting the settlement application for A.Y. 1991-92 to 1994-95, upholding the Commission's factual findings of lack of true and full disclosure and repeated revision of disclosures, and distinguishing the separate-year settlement principle in the context of block assessment.

Concealment of particulars of income - furnishing inaccurate particulars of income - notice under section 274 read with section 271(1)(c) - penalty under section 271(1)(c) - change of opinion - bonafide claim and penalty - principles of natural justice

Notice under section 274 read with section 271(1)(c) - concealment of particulars of income - furnishing inaccurate particulars of income - principles of natural justice - Validity of the show-cause notice initiating penalty proceedings when it does not specify whether proceedings are for concealment or for furnishing inaccurate particulars. - HELD THAT: - The Assessing Officer's notice invoked both limbs of section 271(1)(c) without specifying which limb was the basis for initiation of penalty proceedings. The Tribunal held that a notice which fails to identify the specific ground (concealment or furnishing inaccurate particulars) offends the statutory requirement and principles of natural justice because the assessee must be given a clear opportunity to meet the precise case sought to be made against it. Reliance on Karnataka High Court and Supreme Court precedents established that initiation and imposition of penalty must be congruent: proceedings framed on one ground cannot lawfully result in penalty on another. The Tribunal concluded that the ambiguous/vague notice demonstrated non-application of mind and rendered the penalty unsustainable. [Paras 10, 11, 12, 13]

The notice was legally defective for failing to specify the limb of section 271(1)(c), and the penalty based on that notice is not sustainable.

Penalty under section 271(1)(c) - change of opinion - bonafide claim and penalty - Sustainability of penalty where additions/disallowances result from change of opinion or where the assessee advanced a bonafide claim. - HELD THAT: - The Tribunal recorded that the assessment additions and disallowances were made on the basis of a change of opinion and that no incriminating material was found in the search proceedings; the original assessment under section 143(3) had accepted the audited books. Where additions arise from a change of opinion, penalty under section 271(1)(c) is not attracted. Further, a mere unsuccessful or incorrect claim, made bona fide in the return, does not constitute furnishing inaccurate particulars of income; absent a finding that particulars in the return were incorrect or false, penalty cannot be imposed. The Tribunal also noted that co-ordinate decisions had deleted or remanded similar additions for other years, reinforcing that penalty could not be sustained on these grounds. [Paras 5, 14, 15, 16]

Penalties premised on additions/disallowances that are mere changes of opinion, or on bona fide claims, are not sustainable; the penalty is quashed.

Final Conclusion: The penalty under section 271(1)(c) for AY 2008-09 is quashed: the show-cause notice was defective for not specifying the limb of clause (c), and the additions/disallowances relied upon were either change of opinion or arose from bona fide claims, therefore penalty could not be sustained.

Addition on account of car parking space - acceptance of diary entries as evidence - addition for undisclosed/ additional sale consideration (on money) - burden to dislodge statements recorded during survey - computation of cost of acquisition of capital asset - allowability of incidental expenses towards cost of acquisition

Addition on account of car parking space - acceptance of diary entries as evidence - burden to dislodge statements recorded during survey - Deletion of additions made in respect of car parking space sales beyond those specifically supported by the assessee's diary and statement. - HELD THAT: - The assessee's survey statement and the yellow diary recorded specific entries identifying collection of car parking charges in respect of six flats and described collection from twenty flats generally. The Tribunal found that the Assessing Officer did not produce cogent evidence to dislodge the diary entries or the specific statement identifying the six buyers. In the absence of substantial evidence to prove sale of car parking spaces to more persons than those shown in the diary and in the assessee's specific reply, it was impermissible to make additions beyond the amounts supported by the diary and the specific admissions. Accordingly, additions in excess of the car parking space sales proven for the six flats were deleted. [Paras 7]

Grounds 2 to 2.5 for all three assessment years allowed to the extent that additions in excess of car parking space sales shown for six flats are deleted.

Addition for undisclosed/ additional sale consideration (on money) - burden to dislodge statements recorded during survey - Deletion of additions made on account of alleged receipt of additional sale consideration where no evidence was found to support receipt except confession in respect of specified flats. - HELD THAT: - For assessment years 2009-10 and 2010-11 the assessee had admitted receipt of additional consideration in respect of certain specified buyers, and for the remaining buyers the purchasers' statements recorded denied any on money. The Assessing Officer and the Commissioner (Appeals) failed to produce any evidence during survey to show receipt of additional consideration beyond what the assessee admitted. Revenue did not dislodge the purchasers' denials. In these circumstances, the adhoc additions made by the Assessing Officer and confirmed by the CIT(A) lacked evidentiary foundation and were liable to be deleted. [Paras 11]

Grounds 3 to 3.5 for 2009-10 and Grounds 3 to 3.4 for 2010-11 allowed; additions on account of alleged additional sale consideration deleted.

Computation of cost of acquisition of capital asset - allowability of incidental expenses towards cost of acquisition - cash payments and source not explained - Determination of allowable cost of acquisition of 2.38 acres of land and direction on which incidental expenses are to be included. - HELD THAT: - The agreement of sale executed on 24.01.2007, accepted by Revenue, fixed the rate per cent and showed payments aggregating to Rs. 9,32,80,000 made between January and August 2007. The Tribunal held that cost of acquisition for lands purchased in earlier assessment years cannot be disturbed for the later years and that the basic purchase consideration as evidenced by the agreement is indisputable. The Tribunal allowed documentary expenses substantiated by cheque and bank charges supported by evidence as part of the cost, but disallowed amounts (vehicle maintenance, rent, levelling and compound wall, telephone, vehicle insurance) which were not shown to be intrinsically connected to acquisition. Consequently the Assessing Officer was directed to adopt the revised cost of acquisition comprising the agreed purchase price plus accepted commission, stamp duty, registration fee, documentary writing fee and bank charges. [Paras 14]

Grounds relating to cost of acquisition for all three assessment years partly allowed; Assessing Officer directed to compute cost of acquisition at the revised total including specified incidental charges and excluding items not shown to be linked to acquisition.

Final Conclusion: All appeals for assessment years 2009-10, 2010-11 and 2011-12 are partly allowed: additions relating to car parking space sales (beyond amounts evidenced in the diary) and additions for alleged additional sale consideration are deleted; cost of acquisition of the land is to be recomputed accepting the agreed purchase consideration and specified incidental expenses while excluding items not shown to be connected with acquisition.

Exemption under section 54 of the Income-tax Act - self financing scheme to be treated as construction for section 54/54F - taxability in the year of receipt where investment is subsequently refunded - section 153(6) and Explanation 2 - assessments consequential to or to give effect to an order

Exemption under section 54 of the Income-tax Act - self financing scheme to be treated as construction for section 54/54F - Entitlement to exemption under section 54 in assessment year 2009-10 where assessee booked a flat under a self finance scheme but the builder later failed to construct and refunded the amount. - HELD THAT: - The Tribunal held that booking a flat under a self finance scheme where payments were made by account payee cheque and receipts were issued brings the transaction within the ambit of the Board's circulars treating such bookings as construction for the purposes of sections 54/54F; accordingly, on acquisition in the relevant year the assessee prima facie fulfilled conditions for exemption. However, a subsequent change in circumstance - viz., non construction by the builder and return of the money - disentitled the assessee from claiming the exemption for that earlier year. The Tribunal therefore excluded the long term capital gain from assessment year 2009 10. [Paras 6, 8]

Long term capital gain excluded from assessment year 2009-10 as exemption under section 54 stood defeated by subsequent refund of payments to the assessee.

Taxability in the year of receipt where investment is subsequently refunded - section 153(6) and Explanation 2 - assessments consequential to or to give effect to an order - Year in which the long term capital gain is to be taxed and correctness of the AO's computation. - HELD THAT: - Applying section 153(6) and Explanation 2, the Tribunal directed that the long term capital gain be taxed in assessment year 2011 12 when the builder returned the money to the assessee. The Tribunal rejected the assessee's lower computation of capital gains, finding no substantiation for the inclusion of a sum claimed in the cost of acquisition; the AO's computation of the long term capital gain was upheld. [Paras 7]

Long term capital gain to be assessed in assessment year 2011-12; AO's computation affirmed and the assessee's claimed inclusion in cost of acquisition disallowed for lack of substantiation.

Final Conclusion: Appeal partly allowed: exemption under section 54 not available for AY 2009-10 due to subsequent refund; the long term capital gain shall be assessed in AY 2011-12 and the AO's computation of the capital gain is upheld.

Reopening of assessment under Section 147/148 - change of opinion - formation of opinion by Assessing Officer - tangible material - allowability of loss on sale of stores (revenue v. capital)

Reopening of assessment under Section 147/148 - change of opinion - formation of opinion by Assessing Officer - tangible material - Validity of reassessment proceedings initiated by issuance of notice under Section 148/147 in respect of claim of loss on sale of stores - HELD THAT: - The Tribunal held that the Assessing Officer had, during the original scrutiny assessment, raised specific queries regarding the allowability of the claimed loss on sale of stores and the assessee had replied. On these facts, the Assessing Officer had examined the claim and therefore had formed an opinion about its deductibility. No new material was brought to light after the original assessment. Relying on the ratio of the jurisdictional High Court in Gujarat Power Corpn. Ltd., the Tribunal reasoned that where an Assessing Officer has examined a claim and, despite doubts, does not make an addition in the final assessment, reopening the assessment later on the same material amounts to a mere change of opinion which is impermissible. The Tribunal observed that after the amendments effective April 1, 1989, reopening within four years is permissible only if it is not based on mere change of opinion and there must be some tangible material to form belief that income has escaped assessment; here no such new tangible material existed independent of the original record. Consequently, the reassessment was held to be founded on a prohibited change of opinion and therefore void. [Paras 6]

Reopening of assessment quashed and reassessment proceedings set aside.

Final Conclusion: The appeal is allowed; the impugned reassessment proceedings for AY 2007-08 are quashed as being a mere change of opinion and therefore impermissible.

Reasonable cause - immunity from penalty - application of section 273B - penalty under section 272A(2)(k) - delay in filing TDS returns and non-payment of TDS

Reasonable cause - application of section 273B - penalty under section 272A(2)(k) - Assessee's plea that severe financial crisis amounted to reasonable cause under section 273B, thereby entitling it to immunity from penalty under section 272A(2)(k) for assessment year 2008-09. - HELD THAT: - The Tribunal noted the assessee's submission that delay in depositing TDS and filing quarterly statements was caused by a severe financial crisis. Though the CIT(A) upheld the penalty on the additional ground that TDS was not deposited in time, the Tribunal held that severe financial crisis qualified as a 'reasonable cause' within the meaning of section 273B. On that basis the Tribunal concluded that the assessee was entitled to immunity from levy of penalty under section 272A(2)(k) and directed deletion of the penalty imposed for AY 2008-09. [Paras 5, 6]

Penalty sustained by authorities for AY 2008-09 set aside; penalty deleted on the ground of reasonable cause under section 273B.

Reasonable cause - application of section 273B - penalty under section 272A(2)(k) - Assessee's plea that severe financial crisis amounted to reasonable cause under section 273B, thereby entitling it to immunity from penalty under section 272A(2)(k) for assessment year 2009-10. - HELD THAT: - Applying the same reasoning as in the other appeal, the Tribunal accepted the assessee's explanation of severe financial crisis as constituting reasonable cause under section 273B. Despite the CIT(A)'s emphasis on non-deposit of TDS, the Tribunal found that the reasonable cause defence barred imposition of penalty under section 272A(2)(k) for AY 2009-10 and directed the assessing officer to delete the penalty. [Paras 5, 6]

Penalty sustained by authorities for AY 2009-10 set aside; penalty deleted on the ground of reasonable cause under section 273B.

Final Conclusion: Both appeals allowed; penalties imposed under section 272A(2)(k) for assessment years 2008-09 and 2009-10 deleted as the assessee's financial crisis was held to constitute reasonable cause under section 273B, entitling it to immunity from penalty.

Penalty under section 271D - Provisions of section 269SS and cash acceptance restriction - Reasonable cause under section 273B - Bona fide transaction not sufficient for relief - Loans/deposits from directors within ambit of section 269SS

Penalty under section 271D - Provisions of section 269SS and cash acceptance restriction - Reasonable cause under section 273B - Bona fide transaction not sufficient for relief - Whether penalty under section 271D could be sustained for cash loans received from a director when the assessee relied on the bonafides of the transactions and alleged business exigency invoking section 273B - HELD THAT: - The assessee received two cash loans of Rs.1 lakh each from a director during the year and did not substantiate urgent business necessity before the AO; the CIT(A) and Tribunal applied the principle in Kum. A.B. Shanthi that relief under section 273B requires not only a genuine transaction but also proof of bona fide reasons for being unable to obtain the loan or deposit by account-payee cheque or bank draft. The Tribunal noted the assessee expanded its explanation only at appellate stages and produced no contemporaneous documentary evidence (for example, import/shipment documents or bank shortfall) to show urgency or inability to use banking instruments. Ledger entries did not demonstrate a running/current account to treat the receipts as regular current-account transactions. The Tribunal held that, on the facts, the payments were not urgently required on the dates cash was accepted (shipment dates post-dated the cash receipts) and the assessee failed to show insufficient funds or other reasonable cause to explain non-compliance with section 269SS. In view of these findings and the settled law that bonafides alone are insufficient, the exemption under section 273B was not available and penalty under section 271D was rightly confirmed. [Paras 18, 20, 21, 22, 23]

Penalty under section 271D confirmed as the assessee failed to establish reasonable cause under section 273B for accepting cash loans in contravention of section 269SS.

Final Conclusion: Appeal dismissed; penalty imposed under section 271D upheld for Assessment Year 2008-09 as the assessee failed to prove the requisite reasonable cause under section 273B for accepting cash loans in breach of section 269SS.

Confiscation under Section 111(o) of the Customs Act, 1962 - registration requirement under the Insecticides Act, 1968 and restrictions under the Insecticides Rules, 1971 - imports restricted to specified source and designated port - inapplicability of permissive import exemption for one insecticide to a different insecticide - penalty limit under Section 112(a) of the Customs Act, 1962 - re-export as an alternative to redemption subject to redemption fine

Confiscation under Section 111(o) of the Customs Act, 1962 - registration requirement under the Insecticides Act, 1968 and restrictions under the Insecticides Rules, 1971 - imports restricted to specified source and designated port - Imported Chlorpropham is liable for confiscation for contravention of the conditions of import under the Insecticides Act and Rules. - HELD THAT: - The Tribunal found on the facts that the appellant's registration was not valid at the time of import, the consignment originated from a source in China rather than the specified source in the United Kingdom, and the import was effected through ICD Pithampur which is not a designated port for clearance of the pesticide in question. These omissions amounted to import in contravention of the conditions prescribed under the Insecticides Act and the Rules. In view of those established contraventions, the imported goods fall within the scope of confiscation envisaged by Section 111(o) of the Customs Act, 1962. [Paras 10]

Confiscation of the imported Chlorpropham upheld.

Inapplicability of permissive import exemption for one insecticide to a different insecticide - The Tribunal's earlier observation in a case concerning boric acid cannot be extended to Chlorpropham; exemption for indigenous manufacture in one insecticide case does not automatically apply to a different insecticide. - HELD THAT: - The appellant relied on a prior Tribunal decision to contend that restrictions under the Insecticides Act do not apply where the import is for manufacture/export rather than for use in India. The Tribunal examined that authority and observed that its reasoning related to boric acid and was delivered in a different factual and regulatory context. Because insecticides differ in properties and the relevant permissions and conditions are insecticide-specific, the earlier observation could not be generalized to Chlorpropham. The facts of the present case therefore remain distinct and do not attract the exemption urged by the appellant. [Paras 12]

Reliance on the earlier decision rejected; exemption not available to the appellant for Chlorpropham.

Penalty limit under Section 112(a) of the Customs Act, 1962 - The penalty imposed under Section 112(a) exceeded the statutory maximum and was accordingly reduced. - HELD THAT: - Section 112(a) permits imposition of penalty for improper importation up to the value of the goods or Rs. 5,000 whichever is greater. The value as per the bill of entry was less than the penalty imposed by the lower authority. Having regard to the statutory ceiling, the Tribunal held the penalty to be excessive and reduced it to an amount within permissible limits after considering the circumstances of the case. [Paras 13, 14]

Penalty reduced to an amount within the statutory limit (penalty reduced from the figure imposed by the lower authority to Rs. 15 Lakh).

Re-export as an alternative to redemption subject to redemption fine - Redemption of the seized goods is not to be ordinarily permitted, but the lower authority may consider an application for re-export on payment of a redemption fine. - HELD THAT: - Considering the nature of the goods and the contraventions established, the Tribunal opined that redemption should not be allowed as a general rule. However, it directed that the lower authority may, if an application is filed by the appellant, consider permitting re-export of the goods upon payment of a specified redemption fine. This leaves a limited discretionary remedy open while upholding the order of confiscation. [Paras 11]

Redemption refused in principle; lower authority may consider re-export upon payment of redemption fine.

Final Conclusion: The appeal is partly allowed: the Tribunal upheld confiscation of the imported Chlorpropham for contravention of import conditions under the Insecticides Act and Rules, rejected the appellant's reliance on earlier authority as inapplicable, reduced the penalty to an amount within the statutory limit, and left open the limited option of re-export subject to a redemption fine to be considered by the lower authority.

Transaction value - Customs Valuation Rules - sequential application - computed value (Rule 8) - value enhancement on suspicion insufficient - burden of proof on Revenue to reject invoice

Transaction value - Customs Valuation Rules - sequential application - computed value (Rule 8) - value enhancement on suspicion insufficient - burden of proof on Revenue to reject invoice - Whether the Department was justified in rejecting the declared transaction value and enhancing assessable value by applying Rule 8 based on tariff value of brass scrap with a 30% loading without first exhausting prior valuation rules or producing positive evidence. - HELD THAT: - The Tribunal held that the imported goods were cleared on the basis of invoices reflecting transaction value and, as per settled law, such transaction value must be accepted unless the Department cogently rejects it. The Revenue relied on the fact that the declared value was lower than the tariff value of brass scrap and proceeded directly to determine value by the computed value method under Rule 8, applying a 30% addition. The Tribunal found this approach impermissible because the Customs Valuation Rules are to be applied sequentially (Rule 3 and then Rules 4-9), and the Department failed to first seek contemporaneous import prices of identical or similar goods or other positive evidence to displace the invoice value. Mere suspicion arising from the declared value being lower than raw-material tariff value was held insufficient to deny the transaction value. Reliance on earlier appellate and tribunal precedents supporting adoption of transaction value in absence of evidence was noted. Consequently, the enhancement based on presumptive value addition and reference to tariff scrap value was set aside and the transaction value adopted. [Paras 6, 7, 9, 10, 11]

Enhancement of assessable value by applying Rule 8 on the basis of tariff value of brass scrap with 30% loading without exhausting earlier valuation rules or producing positive evidence is set aside; the declared transaction value is to be adopted.

Final Conclusion: The appeal is allowed; the impugned enhancement of assessable value is set aside and the transaction value declared in the invoices is accepted, with consequential relief to the appellant.

Fixation of brand rate for drawback - drawback on supply to Special Economic Zone - drawback for electrical energy and clean energy cess - treatment of goods shown as NIL in drawback schedule - binding nature of departmental circulars - eligibility for drawback where payment in Indian Rupees

Fixation of brand rate for drawback - drawback for electrical energy and clean energy cess - treatment of goods shown as NIL in drawback schedule - Brand rate fixation for electrical energy and clean energy cess exported to SEZ is permissible. - HELD THAT: - The Tribunal found that the Commissioner's order did not record a clear acceptance or rejection of the brand rate applications and observed that the Commissioner must decide the matter in conformity with the binding force of departmental circulars and relevant judicial precedent. Applying those authorities, the Tribunal held that fixation of a brand rate for electrical energy (including clean energy cess) exported to an SEZ is permissible notwithstanding that the All Industry Rate in the drawback schedule is shown as NIL, and directed that the issue be treated accordingly. [Paras 6, 7, 8]

Allowed - fixation of brand rate for electrical energy and clean energy cess exported to SEZ is permissible.

Binding nature of departmental circulars - eligibility for drawback where payment in Indian Rupees - drawback on supply to Special Economic Zone - Matter remanded to the Commissioner to pass an appropriate order fixing the brand rate after considering circulars and precedent, and relevant SEZ rules on payment in Indian Rupees. - HELD THAT: - The Tribunal directed that the Commissioner should pass a reasoned order on the brand rate fixation, taking into account the Supreme Court's pronouncements on the binding effect of departmental circulars, the department's circulars allowing fixation where schedule rate is NIL, the decision relied upon concerning electrical energy, and the SEZ rules permitting draw back where payment is made in Indian Rupees. The Tribunal did not itself quantify or fix the brand rate but remitted the matter for fresh adjudication in light of these principles. [Paras 7, 9]

Remitted - Commissioner to pass an appropriate order fixing brand rate within three months.

Final Conclusion: The appeal is allowed by way of remand: the Tribunal held that brand rate fixation for electrical energy (including clean energy cess) exported to SEZ is permissible and directed the Commissioner to pass a reasoned order fixing the brand rate within three months, having regard to departmental circulars, relevant precedent and SEZ rules.

Prematurity of show-cause notice pending decision by the Development Commissioner - non-fulfillment of net foreign exchange (NFE) obligation under Letter of Permission (LOP) - modification and cancellation of LOP and computation of NFE till date of cancellation - requirement of Development Commissioner settlement before Customs confirms demand - application of Export-Import Policy compliance in adjudication of Customs demand

Prematurity of show-cause notice pending decision by the Development Commissioner - requirement of Development Commissioner settlement before Customs confirms demand - Whether the show-cause notice and resultant demand could be sustained when the Development Commissioner, FSEZ, had not adjudicated the question of compliance with the LOP/EXIM Policy. - HELD THAT: - The Tribunal held that the adjudication by Customs was premature because the Development Commissioner, FSEZ, had not settled the question of conformity with the LOP and EXIM Policy. The Tribunal relied on the clarifications in the CBEC Circulars (No.21/95-Cus dated 10.03.1995 and No.122/95-Cus dated 28.11.1995) which require that cases of alleged violation by 100% EOU/EPZ be first resolved by the Development Commissioner and only thereafter Customs should confirm any demand. No communication was placed on record to show that the Development Commissioner had adjudicated or raised a demand in respect of the appellant; consequently the adjudicating authority correctly found the show-cause notice to be premature and dropped the demand. The Tribunal declined the Revenue's contention that the order was issued merely to protect Against a CERA audit objection in the absence of evidence that the Development Commissioner had decided otherwise. [Paras 5]

Impugned order dropping the demand is upheld and the Revenue's appeal is dismissed.

Final Conclusion: The Tribunal dismissed the Revenue's appeal, holding that Customs could not confirm the demand before the Development Commissioner, FSEZ, had adjudicated the alleged contravention of the LOP/EXIM Policy, and observed that no communication from the Development Commissioner raising such a demand was on record.

Confiscation for mis-declaration - redemption fine in lieu of confiscation - amendment of Bill of Entry under Section 149 of the Customs Act, 1962 - penalty for mis-declaration - penalty under Section 112(a) of the Customs Act, 1962 - duty exemption certificate and its effect on liability - unsustainable demand of duty under Section 28 of the Customs Act, 1962

Amendment of Bill of Entry under Section 149 of the Customs Act, 1962 - confiscation for mis-declaration - redemption fine in lieu of confiscation - Validity of confiscation and redemption fine where the Bill of Entry was amended under Section 149 - HELD THAT: - The Tribunal noted that the Adjudicating Authority had allowed amendment of the Bill of Entry under Section 149 and that the importation stood supported by a valid duty exemption certificate and subsequent compliance with post-importation conditions. In view of the amendment of the Bill of Entry, the Tribunal held that confiscation of the goods and imposition of a redemption fine in lieu of confiscation were not justified. The Court accordingly set aside the redemption fine and found no justification for confiscation once amendment was permitted. [Paras 8]

Confiscation and redemption fine set aside in view of amendment of the Bill of Entry under Section 149.

Penalty for mis-declaration - penalty under Section 112(a) of the Customs Act, 1962 - Whether penalty for mis-declaration was justified and its appropriate quantum - HELD THAT: - The Tribunal accepted that there was mis-declaration in the Bills of Entry and that this warranted imposition of a penalty. However, the Tribunal found the quantum of penalty imposed by the Adjudicating Authority to be excessive. Applying its discretion, the Tribunal reduced the penalty to a lesser amount while upholding the liability to pay a penalty for the mis-declaration. [Paras 8]

Penalty upheld as warranted for mis-declaration but reduced to Rs. 1 Lakh.

Duty exemption certificate and its effect on liability - unsustainable demand of duty under Section 28 of the Customs Act, 1962 - Sustainability of demand of duty under Section 28 in respect of the Bill of Entry dated 14.08.2007 - HELD THAT: - The Adjudicating Authority had found, and the Tribunal noted, that the importer was in possession of a valid duty exemption certificate issued by the competent authority at the time of clearance and that post-importation conditions were fulfilled. The demand of duty under Section 28 was held to be hypothetical because, on the admitted facts, no duty was leviable on the goods owing to the valid duty exemption certificate; consequently the demand (and related interest) was not sustainable. [Paras 6]

Demand of duty under Section 28 in respect of the Bill of Entry dated 14.08.2007 held not sustainable and thus not maintainable.

Final Conclusion: Appeal disposed of in part: confiscation and redemption fine set aside in view of amendment of the Bill of Entry; penalty for mis-declaration sustained but reduced to Rs. 1 Lakh; demand of duty under Section 28 in relation to the relevant Bill of Entry held unsustainable.

Transaction value - comparability of goods for customs valuation - use of London Metal Exchange (LME) prices as basis for valuation - contemporaneous imports as corroborative evidence - purity/content adjustment in valuation - rejection of transaction value

Transaction value - comparability of goods for customs valuation - purity/content adjustment in valuation - Whether the transaction value declared by the importer could be rejected on the basis of LME prices when the imported zinc's metal content/purity was materially lower than the purity underlying the LME quotations. - HELD THAT: - The Tribunal found that the imported zinc plates had metal content/purity between 87.2% and 88.3%, whereas LME quotations related to zinc of 99.9% purity. The adjudicating authority's reliance on LME prices to discard the declared transaction value was held to be inappropriate because the LME price was not comparable with the impugned goods. The Tribunal applied the principle that market or benchmark prices are only usable for valuation if the goods are comparable or appropriate adjustments (for quality/purity) are demonstrably made; absent such comparability or adjustment, rejection of the importer's transaction value is unsustainable.

The rejection of the declared transaction value on the ground of LME prices was set aside because the LME price (99.9% purity) was not comparable with the imported zinc (about 87-88% purity).

Use of London Metal Exchange (LME) prices as basis for valuation - contemporaneous imports as corroborative evidence - rejection of transaction value - Whether LME Bulletin or LME prices can be used as the sole basis to enhance or replace declared transaction value in absence of corroborative evidence of contemporaneous imports. - HELD THAT: - Relying on precedent, the Tribunal observed that LME Bulletin prices cannot be accepted as the sole basis for enhancing declared value where there is no corroborative evidence of contemporaneous imports at those prices. The decision referenced authorities holding that theoretical or benchmark prices must be supported by evidence of actual or contemporaneous import transactions to justify rejection of the transaction value. In the absence of such corroboration here, the Tribunal held that the Revenue could not sustain enhancement based solely on LME quotations.

LME prices cannot be the sole basis for rejecting or enhancing the declared transaction value in the absence of corroborative evidence of contemporaneous imports; accordingly the enhancement was not sustained.

Final Conclusion: The impugned orders rejecting the declared transaction value and enhancing the assessment based on LME prices are set aside; the appeals are allowed and the declared transaction value is restored because the LME quotations were not comparable with the imported zinc and lacked corroborative contemporaneous-import evidence.

Admissibility of application under Section 10 of the Insolvency and Bankruptcy Code - Corporate applicant eligibility and disqualification under Section 11 - Compliance with Form 6 and statutory requirements for initiating CIRP - Special resolution of shareholders as requirement for filing under Section 10 - Proof of default and minimum threshold of default - Objections of creditors: suppression of facts and invocation of SARFAESI proceedings - Mandatory admission where application is complete under Section 10(4)(a) - Commencement of Corporate Insolvency Resolution Process and appointment of Interim Resolution Professional - Moratorium under Section 14 and its scope

Admissibility of application under Section 10 of the Insolvency and Bankruptcy Code - Compliance with Form 6 and statutory requirements for initiating CIRP - Proof of default and minimum threshold of default - Corporate applicant eligibility and disqualification under Section 11 - Special resolution of shareholders as requirement for filing under Section 10 - Application by the corporate debtor under Section 10 is admissible as complete and the corporate applicant is eligible to file for initiation of CIRP. - HELD THAT: - The Tribunal found that the corporate applicant (through an authorised director) filed Form 6 with the particulars required by Section 10 read with Rule 7, including audited financial statements, provisional financials, list of creditors, books of account showing default, and proposal of an Interim Resolution Professional. The material on record established that default had occurred and exceeded the statutory minimum threshold. The applicant averred non ineligibility under Section 11 and produced shareholder consent; in view of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 the shareholders' consent requirement was met. Having regard to the completeness of the application and absence of disqualification, the Tribunal held that the statutory conditions for admission under Section 10(4)(a) were satisfied. [Paras 20, 21, 22, 23, 24]

The application under Section 10 is admitted as complete and the corporate applicant is not ineligible to maintain the petition.

Objections of creditors: suppression of facts and invocation of SARFAESI proceedings - Mandatory admission where application is complete under Section 10(4)(a) - Objections by financial creditors alleging suppression of facts and existence of SARFAESI proceedings do not preclude admission where the Section 10 application is otherwise complete. - HELD THAT: - The Tribunal examined replies of financial creditors, including allegations of unexplained diminution in inventory and that the applicant had not come with clean hands. The corporate debtor was afforded opportunity to explain the inventory discrepancy, and the Tribunal observed that if unlawful diversion is established later, appropriate remedies under the Code and other laws are available. Reliance on NCLAT precedents, which disallow rejection of Section 10 applications for facts beyond Form 6 requirements or unrelated matters, supported the view that mere allegations of non disclosure do not justify rejection where statutory requirements are met. Further, the pendency of SARFAESI proceedings does not bar initiation of CIRP due to the overriding effect of Section 238 of the Code. [Paras 28, 29, 30, 31, 32]

The objections raised by financial creditors are not a ground to refuse admission of the Section 10 application.

Commencement of Corporate Insolvency Resolution Process and appointment of Interim Resolution Professional - Moratorium under Section 14 and its scope - On admission, CIRP commences from the date of the order; an Interim Resolution Professional is appointed and moratorium under Section 14 is declared with the specified prohibitions and limited exceptions. - HELD THAT: - Having admitted the application, the Tribunal declared that the Corporate Insolvency Resolution Process commences from the date of the order. The proposed insolvency professional was appointed as Interim Resolution Professional after verifying registration and absence of disciplinary proceedings. The Tribunal directed immediate public announcement by the IRP and imposed moratorium in terms of Section 14(1)(a) (d), clarifying that the moratorium does not apply to transactions or supplies as may be notified by the Central Government and, as per the 2018 Ordinance, does not apply to a surety in a contract of guarantee. Duties and powers of the IRP under the Code, Rules and Regulations were reiterated, and personnel and management were directed to extend cooperation. [Paras 37, 38, 39, 40, 41]

CIRP commences with immediate appointment of the named Interim Resolution Professional; public announcement and moratorium are ordered in accordance with the Code.

Final Conclusion: The Tribunal admitted the Section 10 application filed by the corporate debtor as complete, held that default and statutory prerequisites (including shareholders' approval) were established, rejected creditors' objections to admission, appointed the proposed Interim Resolution Professional, directed public announcement and declared moratorium under the Code; CIRP commences from the date of the order.

Payment under protest - limitation under Section 11B - unjust enrichment - principle of mutuality - service tax on services rendered to members - ultra vires levy

Payment under protest - limitation under Section 11B - service tax on services rendered to members - Whether the service tax payments made by the appellant were payments "under protest" so as to render the refund claim within limitation under Section 11B. - HELD THAT: - The appellant's letter dated 13/07/2010 constituted a clear protest: it asserted the view, supported by judicial decisions, that service tax was not leviable on services provided to club members and requested discontinuation of payment or a personal hearing. The Jurisdictional Assistant Commissioner directed continuation of payment, and the appellant thereafter paid tax under compulsion. Reliance on precedents establishes that words "under protest" are not necessary where conduct and communications show payments were not voluntary but made under pressure from the Department. The Tribunal therefore held that the payments were made "under protest" and that the limitation bar under Section 11B did not apply to the refund claim which was accordingly filed within time. [Paras 5, 6, 7, 8]

Payments were held to have been made "under protest"; the refund claim is within limitation and not barred by Section 11B.

Unjust enrichment - principle of mutuality - service tax on services rendered to members - ultra vires levy - Whether the refund is barred by the principle of unjust enrichment when club services were taxed and subsequently claimed back by the club. - HELD THAT: - The Tribunal examined authorities holding that where a club provides services to its members there is no transaction between two distinct persons; the principle of mutuality applies and the members and the club are not separate parties for this purpose. Where services to members are not services to a separate legal recipient, the foundational requirement for unjust enrichment - that the claimant collected tax from another distinct person and retained it - is absent. The Tribunal applied the reasoning in relevant High Court and Tribunal decisions (including the Karnavati Club precedent) and concluded that unjust enrichment does not apply to services rendered to members; consequently the appellant satisfied the test against unjust enrichment. [Paras 9, 10, 11, 12]

The principle of unjust enrichment does not preclude refund where club services were to members and mutuality applies; the appellant cleared the hurdle of unjust enrichment.

Final Conclusion: The impugned order is set aside; the appellant's refund claim for the period 01/08/2010 to 31/12/2013 is held within limitation (payments treated as made "under protest") and not barred by unjust enrichment, and the appeal is allowed with consequential relief.

Restoration of writ petition - dismissal for want of prosecution - non-appearance due to unavoidable travel delay - interest of justice

Restoration of writ petition - dismissal for want of prosecution - interest of justice - Application for restoration of W.P. No.385/2018 dismissed for want of prosecution was allowed. - HELD THAT: - The Court examined the factual premise that the applicant's non-appearance on the date of dismissal was due to the train arriving late at Indore and accepted the supporting affidavit of the applicant's counsel. Applying the principle that matters dismissed for non-prosecution may be restored in the interest of justice where non-appearance is shown to be due to an unavoidable cause, the Court granted restoration. The Court's decision rested on the explanation supported by affidavit and the overarching criterion of the interest of justice, rather than on any broader adjudication of the petition's merits.

W.P. No.385/2018 dismissed on 13/04/2018 for want of prosecution is restored to its original number and the miscellaneous petition is allowed.

Final Conclusion: On the applicant's established explanation of non-appearance due to train delay, supported by affidavit, the High Court restored W.P. No.385/2018 in the interest of justice and allowed the restoration application.

Grant of bail - prima facie satisfaction of the charge - reasonable apprehension of tampering with witnesses - conditions of bail - deposit as condition for release - verification of sureties - no expression on merits

Grant of bail - prima facie satisfaction of the charge - reasonable apprehension of tampering with witnesses - conditions of bail - deposit as condition for release - verification of sureties - Whether the applicant Satyendra Singh Tomar should be released on bail in Case Crime No. 1 of 2018 under Section 89(1)(2) of the Finance Act, 1994. - HELD THAT: - The Court, while recording a prima facie satisfaction in support of the charge and noting the gravity of the accusation, the severity of punishment and a reasonable apprehension of tampering with witnesses, nevertheless found the applicant entitled to bail. The order expressly refrained from expressing any opinion on the merits of the case. Bail is granted subject to furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court. As an additional condition linked to release, the applicant's company is directed to deposit a further sum of Rs. 1,00,00,000 with the concerned department within three months from the date of release. Standard protective conditions-continued attendance and cooperation at trial, prohibition against tampering with witnesses, and prohibition against indulging in illegal activities-are imposed. The authorities are directed to verify the identity, status and residence proof of the sureties before acceptance. The trial court is empowered to cancel bail in case of breach of any condition.

Applicant released on bail on furnishing a personal bond with two sureties each in the like amount, subject to the specified deposit by the company within three months and the enumerated conditions; verification of sureties mandated; breach to attract cancellation of bail.

Final Conclusion: Bail granted to the applicant in Case Crime No. 1 of 2018 under specified conditions including bond with two sureties, deposit by the company within three months, cooperation in trial, prohibition on tampering and illegal activity, and verification of sureties; no opinion expressed on merits.

Stock broker services - recovery as reimbursement not forming part of taxable consideration - cost sharing arrangement versus service provider-service receiver relationship - Business Support Services - Management, Maintenance and Repair Service (MMRS) vis-a -vis Information Technology Software Service - Online Information and Database Access or Retrieval Service - sub-contractor receipts remitted to main contractor - double levy - Registrar to an Issue / Share Transfer Agent - reimbursement of expenses - Banking and Other Financial Services - charges collected and passed to depository - reimbursement of expenses already taxed in hands of principal - cenvat credit - entitlement where input service relates to electronic access to stock exchange - denial of cenvat for non-payment of output service tax

Stock broker services - recovery as reimbursement not forming part of taxable consideration - Service tax demand on transaction charges, account opening charges, LD charges, SEBI fees and similar recoveries collected by the stock broker and remitted to authorities - HELD THAT: - Following the Tribunal's decision in LSE Securities Ltd. the receipts characterised by the appellant as recoveries to be paid to statutory authorities or exchanges were held not to be commission or brokerage. The Revenue failed to establish that such receipts had the character of commission or brokerage forming part of gross value of taxable service. Consequently those recoveries, being pass through payments, do not attract service tax as part of stock broker services.

Demand under stock broker services (including transaction charges and related recoveries) set aside.

Business Support Services - cost sharing arrangement versus service provider-service receiver relationship - Levy of service tax on charges recovered from sub brokers for Virtual Private Network (VPN) connectivity under Business Support Services - HELD THAT: - The appellant established that the VPN was a common infrastructure used by appellant and sub brokers and that amounts recovered were merely shares of cost. There was no service provider-service receiver relationship and the activity did not fall within the services listed under the relevant definition. The arrangement was therefore a cost sharing and not a taxable support service.

Demand under Business Support Services in respect of VPN cost sharing set aside.

Management, Maintenance and Repair Service (MMRS) vis-a -vis Information Technology Software Service - Demand under MMRS for consideration received for development/maintenance of software prior to separate IT software service classification - HELD THAT: - The Tribunal observed that activities of development, adaptation, upgradation and maintenance of software fall within the definition of Information Technology Software Service and not within MMRS for the relevant period. As a separate category for IT software service existed w.e.f. 16.05.2008, the software development/maintenance activity cannot be made taxable as MMRS for the prior period, and earlier Tribunal precedents support this interpretation.

Demand confirmed under MMRS in respect of software development/maintenance set aside.

Online Information and Database Access or Retrieval Service - sub contractor receipts remitted to main contractor - double levy - Service tax on amounts received by appellant under agreement with NSDL for facilitation centre where NSDL has already discharged service tax - HELD THAT: - Applying the principle in S. V. Engineering Constructions and other consistent decisions, where the main contractor/principal has discharged service tax on the total value (including amounts received by the subcontractor/agent) the revenue cannot require the sub contractor/agent to pay service tax again on the same receipts. The certificate from NSDL and precedent establish that tax liability of the activity had been discharged by NSDL.

Demand under Online Information and Database Access or Retrieval Service in respect of NSDL facilitation centre receipts set aside.

Reimbursement of expenses already taxed in hands of principal - Online Information and Database Access or Retrieval Service - Levy of service tax on reimbursements claimed from NSDL - HELD THAT: - Since NSDL discharged service tax on the activity and authoritative precedent (including the Supreme Court in Intercontinental Consultants and Tribunal decisions) hold that reimbursements already taxed in the hands of the principal are not chargeable again in the hands of the agent, the levy on reimbursements was not sustainable.

Demand on reimbursements from NSDL under Online Information and Database Access or Retrieval Service set aside.

Registrar to an Issue / Share Transfer Agent - reimbursement of expenses - Service tax on reimbursement of expenses (postage, stationery etc.) received by appellant as RTA/registrar - HELD THAT: - The appellant raised separate invoices for actual expenses without any markup and these were reimbursements. In light of the Supreme Court's decision in Intercontinental Consultants and relevant principles, such actual reimbursements do not form part of taxable value and cannot be subjected to service tax.

Service tax demand on reimbursements in capacity as Registrar/RTA set aside.

Banking and Other Financial Services - charges collected and passed to depository - Levy of service tax on DEMAT and related charges collected by appellant and paid to NSDL/depository - HELD THAT: - Following Tribunal precedent (including LSE Securities and Indes Securities), charges collected by the appellant and remitted to the depository under statutory authority are pass through and not taxable as Banking and Other Financial Services in the hands of the collector. The appellant acted as a collection agent and did not earn those charges as consideration for its own services.

Demand under Banking and Other Financial Services on such pass through charges set aside.

National Skill Registry / reimbursements - reimbursement of expenses already taxed in hands of principal - Service tax on amounts recovered for National Skill Registry and related reimbursements remitted to NSDL - HELD THAT: - Given that NSDL had discharged service tax on such amounts and applying the principle that tax paid by the principal precludes a second levy on the agent for the same receipts (as in S. V. Engineering Constructions), the demand in the hands of the appellant is unsustainable.

Demand on National Skill Registry receipts and reimbursements set aside.

Cenvat credit - entitlement where input service relates to electronic access to stock exchange - denial of cenvat for non-payment of output service tax - Denial of cenvat credit on service tax paid on VPN rent, warehouse rent and digitization charges - HELD THAT: - VPN rent was used to establish electronic on line connection necessary for trading on stock exchanges and thus the input service is directly related to the appellant's output stock broking service; denial of credit was thus unjustified. Credit on warehouse rent was denied only because service tax on storage had allegedly not been paid, but storage tax was admitted and paid by the appellant, removing any basis for denial. Digitization credit was similarly disallowed only for non payment of output tax which has been paid; therefore cenvat credits cannot be denied.

Denial of cenvat credit on VPN, warehouse rent and digitization charges set aside; credits allowed.

Final Conclusion: The impugned Order in Original is set aside in substantial part; the appeal is allowed and service tax demands and concomitant denial of cenvat credit, as detailed above, are quashed with consequential reliefs as applicable.

Taxable value of services - non-monetary consideration - MRP as cum-tax value - service tax valuation rules - retrospective application of valuation amendment - extended period of limitation for suppression - penalty and interest for suppression

Taxable value of services - non-monetary consideration - MRP as cum-tax value - Whether free SIM cards given to distributors attract service tax and if their value for taxation is to be determined on the basis of printed MRP. - HELD THAT: - The Tribunal recorded that it was admitted the SIM cards given free to distributors bore printed MRP and were ultimately sold by distributors to subscribers at that printed price; on activation the subscribers become recipients of telecommunication services from the appellant. Applying the settled position that the entire value of SIM-related supply falls within service tax valuation, the Tribunal held that the printed MRP, inclusive of price, must be taken as the cum-tax value for computing taxable value under the statute. The Tribunal therefore sustained the demand on the basis that the true value of the service provided (even when the physical SIM was initially supplied free to distributor) is reflected in the MRP charged downstream to subscribers. [Paras 5, 11]

Demand for service tax on SIM cards given free to distributors was upheld by treating printed MRP as the cum-tax value.

Service tax valuation rules - retrospective application of valuation amendment - Whether the explanation inserted to Rule 5(1) of the Determination of Value Rules (March 2011) could be given retrospective effect and whether reliance on that explanation was justified. - HELD THAT: - The Tribunal examined the explanatory insertion to Rule 5(1) and found the explanation and the principal provision to be functionally disjoint, observing difficulty in treating the explanation as merely clarificatory and applicable retrospectively. The Tribunal noted precedents where similar explanatory insertions were held to introduce substantive change and be prospective, and further observed authorities holding Rule 5(1) ultra vires in part. Despite concluding that the adjudicating authority had wrongly relied on the retrospective effect of the explanation, the Tribunal determined that the outcome on valuation (taking MRP as cum-tax value) was supportable on other statutory reasoning and therefore sustained the demand while rejecting retrospective reliance on the explanation. [Paras 8, 9, 10, 11]

Explanation to Rule 5(1) cannot be given retrospective effect; reliance on that explanation was incorrect, but the demand stands on statutory valuation treating MRP as cum-tax value.

Extended period of limitation for suppression - penalty and interest for suppression - Whether the extended period of limitation and imposition of interest and penalties were justified on the ground of suppression of facts by the appellant. - HELD THAT: - The Tribunal accepted the adjudicating authority's finding that the appellant, though registered and aware of service tax provisions, did not disclose the taxable value of SIM cards supplied free to distributors in its returns nor sought clarification, which amounted to a positive act constituting suppression. On that basis the Tribunal found no infirmity in invoking the extended period of limitation and in levying interest and penalties. The Tribunal therefore dismissed the contention that the show cause notice was time-barred. [Paras 12]

Extended limitation, interest and penalties were properly invoked and sustained on the finding of suppression.

Final Conclusion: The appeal is dismissed; the service tax demand, interest and penalties for the period April 2007 to March 2012 are upheld, with the Tribunal observing that the retrospective reliance on the Rule 5(1) explanation was incorrect but the demand is supportable on statutory valuation principles treating MRP as the cum-tax value.

Limitation period for service tax demand - Extended period for tax recovery and requirement of suppression/mis-statement - Taxability of commercial coaching or training services - Binding effect of Larger Bench decisions - Benefit of cum-duty/cum-tax in quantification of duty

Limitation period for service tax demand - Extended period for tax recovery and requirement of suppression/mis-statement - Demand raised beyond the normal period of limitation is barred. - HELD THAT: - The Tribunal held that during the relevant period the prevailing decisions were in favour of the appellant and only later was the earlier view reversed by the Supreme Court and the Larger Bench. In those circumstances the appellant could not be treated as having suppressed facts or made a mis-statement so as to attract the extended period for recovery; consequently the demand portion falling beyond the normal limitation period cannot be sustained. [Paras 5, 6]

Demand beyond the normal period is barred by limitation.

Extended period for tax recovery and requirement of suppression/mis-statement - Penalty imposed under the Finance Act, 1994 is not sustainable for the period barred by limitation and is set aside. - HELD THAT: - For the same reasons that the extended period could not be invoked (absence of suppression or mis-statement due to bona fide reliance on existing decisions), the Tribunal found the penalty unsustainable and directed that it be set aside. [Paras 6, 9]

Penalty set aside.

Binding effect of Larger Bench decisions - Remaining demand within the normal period to be re-quantified and adjudicated afresh by the original authority. - HELD THAT: - While the Tribunal was bound by the Larger Bench decision holding such services taxable and therefore declined to reopen the merit question, it observed that part of the demand fell within the normal limitation period. The matter was remitted to the Original Adjudicating Authority for re-quantification of the demand limited to the period within limitation. [Paras 8, 9]

Matter remanded for re-quantification of demand within the limitation period.

Benefit of cum-duty/cum-tax in quantification of duty - Revenue's appeal against extension of benefit of cum-duty to the appellant is rejected. - HELD THAT: - The Tribunal applied established precedents that while calculating duty demand the benefit of cum-duty must be extended to the assessee. On that basis the Revenue's contention that cum-tax benefit should be withheld because the appellant had not paid tax on the full value recovered was found to lack merit. [Paras 10]

Revenue's appeal rejected; benefit of cum-duty upheld.

Final Conclusion: Part of the demand (beyond the normal limitation period) and associated penalties are set aside; the remainder, within the limitation period, is remanded to the Original Adjudicating Authority for re-quantification. Revenue's appeal against grant of cum-duty benefit is dismissed.

Residential Complex Construction Services - Inclusion of consideration for parking space in taxable value - Longer period of limitation / extended time bar requires positive evidence of concealment or mala fide - Board Circular clarifying that peripheral activities by builders are not necessarily taxable

Residential Complex Construction Services - Inclusion of consideration for parking space in taxable value - Consideration received for sale of parking space forms part of the value of services taxable as Residential Complex Construction Services. - HELD THAT: - The definition of "Residential Complex" in Section 59(91a) expressly includes facilities or services such as parking space within Serial No.(iii). Given this specific inclusion, the amount charged by the appellant from buyers for parking space is a part and parcel of the services falling under the category of "Residential Complex Construction Services" and must be included in the excisable value of the taxable service. The later introduction of a separate "Preferential Location" category which excludes parking place does not detract from the earlier specific inclusion of parking space within the definition of "Residential Complex Service"; the exclusion in the new category only shows that parking was not intended to be captured by that separate head, and does not remove it from the earlier defined service. [Paras 7]

Demand insofar as it rests on treating parking consideration as part of Residential Complex Construction Services is legally sustainable.

Longer period of limitation / extended time bar requires positive evidence of concealment or mala fide - Board Circular clarifying that peripheral activities by builders are not necessarily taxable - Invocation of the extended period of limitation was not justified; demand barred by limitation in absence of positive evidence of concealment or mala fide. - HELD THAT: - The show cause notice for July 2010 to June 2012 invoked the longer period of limitation. The Revenue has not produced positive evidence to demonstrate concealment or mala fide on the part of the appellant to justify invoking the extended limitation. The Service Tax regime in the relevant period was nascent and the Board Circular relied upon by the appellant indicated that peripheral activities provided by builders need not be treated as taxable under construction services. Parking being a separate area from flats could have given rise to a bona fide belief that parking charges were not includible. In these circumstances the extended time bar cannot be legitimately invoked and the demand must be set aside on limitation grounds. [Paras 8]

Order of confirmation is set aside on limitation; appeal allowed on this ground.

Final Conclusion: While parking consideration properly falls within the taxable value of Residential Complex Construction Services, the demand for July, 2010 to June, 2012 was raised after invoking the extended period without positive evidence of concealment or mala fide and is therefore set aside; the appeal is allowed on limitation grounds.

Reverse charge mechanism - classification of services (Goods Transport Agency vs Cargo Handling) - taxability of imported services prior to insertion of chargeback provision - interest payable on outstanding service tax - penalty under Section 76 vis-a -vis Section 78 (5th proviso)

Classification of services (Goods Transport Agency vs Cargo Handling) - reverse charge mechanism - Whether shifting/shifting charges constitute Goods Transport Agency (GTA) services subject to reverse charge or are cargo handling services not leviable under reverse charge - HELD THAT: - The Tribunal examined the nature of the shifting activity (lifting from storage in port area and placing into railway wagons) and held that such shifting charges fall within cargo handling services rather than GTA. Cargo handling services are not subject to the reverse charge mechanism

Demand in respect of shifting charges set aside as these are cargo handling services and not GTA services subject to RCM.

Taxability of imported services prior to insertion of chargeback provision - Whether commission paid to overseas agent for arranging sale attracted service tax prior to insertion of Section 66A (18/4/2006) - HELD THAT: - The Tribunal noted the contract signing and negotiation dates (1/4/2006 and 6/4/2006) and applied the settled principle that service tax on services received from abroad could not be charged on the recipient prior to the statutory insertion enabling such levy. As the relevant transactions were completed before 18/4/2006 (the date of insertion of the provision imposing tax on imported taxable services), no service tax was leviable on the overseas commission. The impugned order insofar as it sought to impose tax on these overseas commission payments was therefore set aside.

No service tax payable on commission to foreign agent for transactions completed before 18/4/2006; impugned demand on this ground set aside.

Classification of services (Goods Transport Agency vs owner-operated lorry hire) - reverse charge mechanism - Whether amounts paid to various truck operators/owners (who did not issue consignment notes and where transport was at owners' risk) attract liability as GTA services under reverse charge - HELD THAT: - The Tribunal considered the factual matrix that payments for lorry supply in 2004-05 and 2005-06 were certified by the Chartered Accountant, that consignment notes were not issued and the risk of transportation remained with the goods owner. Citing precedents treating such owner-operated or hired-lorry arrangements as outside the definition of GTA, the Tribunal held these transactions cannot be categorised as GTA services liable under RCM. On that basis the demand made under RCM in respect of those payments was held without merit.

No liability to pay service tax under RCM on amounts paid to truck operators/owners for the identified periods; demand set aside.

Interest payable on outstanding service tax - Whether interest under Section 75 is payable and how it is to be computed - HELD THAT: - The Tribunal observed that interest under Section 75 follows any tax found to be payable after adjudication. Where any tax remains payable after adjustment of amounts already paid, appropriate interest shall be payable in accordance with the statutory provision. This treatment applies to any tax held to be due following the Tribunal's determinations.

Interest under Section 75 is payable on any tax that remains payable after adjustments; departmental appeal dismissed except as to Maintenance & Repair service.

Penalty under Section 76 vis-a -vis Section 78 (5th proviso) - Whether penalty under Section 76 should have been imposed when the adjudicating authority imposed penalty under Section 78 - HELD THAT: - The Tribunal reviewed the adjudicating authority's decision not to levy penalty under Section 76 on the basis that Sections 76 and 78 are mutually exclusive and noted the amendment effected by the 5th proviso to Section 78 (Finance Act, 2008) which has retrospective application to earlier cases. Applying that position, the Tribunal found no infirmity in declining to impose penalty under Section 76 and held that the precedent relied upon by the Department (Krishna Poduval) was not applicable to the facts of the present case.

No fault found in not imposing penalty under Section 76; the adjudicating authority's approach upheld.

Maintenance and repair service - Whether demand under Maintenance and Repair service admitted by appellant should be sustained - HELD THAT: - The Tribunal recorded that the appellant did not contest the demand in respect of Maintenance and Repair services and had agreed to pay the same. The Tribunal therefore left that liability intact and allowed the appellant the time/benefit to discharge it as agreed.

Liability for Maintenance and Repair service sustained as admitted by the appellant.

Final Conclusion: The appellants' appeals are allowed in part: demands in respect of shifting charges (treated as cargo handling), overseas commission predating the statutory chargeback provision, and specified GTA RCM demands are set aside; liability for Maintenance and Repair service remains as admitted; interest under Section 75 is payable on any remaining tax due; no penalty under Section 76 was warranted and the departmental appeal is dismissed except as to the admitted maintenance and repair liability.

Interest on delayed refunds - date of filing of refund claim for computing interest - completeness of refund application (supporting documents) - deemed order of Commissioner (Appeal) under Section 11B(2) - limitation and estoppel from accepting appellate order

Date of filing of refund claim for computing interest - completeness of refund application (supporting documents) - Interest on delayed refunds - Date from which interest under Section 11BB is to be computed is the date on which the refund claim becomes complete by filing all requisite supporting documents, not the date of initial physical submission if documents were lacking. - HELD THAT: - The Tribunal applied the Board's clarification in the Manual of Supplementary Instructions and held that a refund claim filed without requisite supporting documents cannot be treated as a complete claim for the purpose of computing interest under Section 11BB. The Commissioner (Appeal) found that the appellant first produced the invoices and other supporting documents on 15.02.2011, and that in the absence of those documents the refund application could not be considered complete. Accordingly, interest became payable only after expiry of three months from 15.02.2011. The Tribunal followed earlier decisions to the same effect and rejected the appellant's contention that interest should run from the date of initial filing in 2006. [Paras 8, 10, 11]

Interest is payable only after three months from 15.02.2011, the date on which the refund claim was completed by submission of supporting documents.

Deemed order of Commissioner (Appeal) under Section 11B(2) - Interest on delayed refunds - The order passed by the Commissioner (Appeal) is deemed to be an order under Section 11B(2) for the purposes of Section 11BB, and a subsequent re-adjudication by the adjudicating authority to sanction the refund was unnecessary. - HELD THAT: - The Tribunal noted the Explanation to Section 11BB which treats an order of the Commissioner (Appeal) as an order under Section 11B(2). Once the appellate authority allowed and sanctioned the refund on 29.04.2011 after verification of documents, the Assistant Commissioner had no separate role to again undertake adjudication to sanction the same refund. Section 11BB requires computation of interest from the date of filing (completion) of the claim and does not permit counting three months from the date of receipt of the appellate order by the adjudicating authority. [Paras 12]

Commissioner (Appeal)'s order is deemed an order under Section 11B(2); re-adjudication by the Assistant Commissioner was unnecessary and could not alter the interest computation rule.

Limitation and estoppel from accepting appellate order - Revenue cannot, after acting on and implementing the Commissioner (Appeal)'s order allowing the refund, challenge that refund in these proceedings on the ground of limitation. - HELD THAT: - The Tribunal held that the revenue, having not appealed against the Commissioner (Appeal)'s order dated 29.04.2011 and having acted on it by making the refund, cannot subsequently raise limitation as a ground to defeat the refund or to avoid interest. Because the appellate order was not challenged, its consequences must follow and the revenue is precluded from belatedly disputing limitation in the present proceedings. [Paras 13]

Revenue's contention on limitation is not maintainable after it acted on the Commissioner (Appeal)'s order; the appeal by revenue is devoid of merit.

Final Conclusion: Both the appellant's and the revenue's appeals are dismissed; the order of the Commissioner (Appeal) is upheld in toto, interest is payable only after three months from 15.02.2011 (the date on which the refund claim was completed by production of supporting documents), and the cross objections are disposed of accordingly.

Consulting Engineer's service - definition of Consulting Engineer - corporate body exclusion prior to 01.05.2006 - service tax liability for designing, drawing and supervision in turnkey contracts - Board Circular No.49/11/2002-ST

Consulting Engineer's service - definition of Consulting Engineer - corporate body exclusion prior to 01.05.2006 - service tax liability for designing, drawing and supervision in turnkey contracts - Board Circular No.49/11/2002-ST - Whether the activities of the respondent (a government corporate construction corporation) fall within the 'Consulting Engineer' service under Section 65(31) of the Finance Act, 1994 and are liable to service tax - HELD THAT: - The Tribunal examined the statutory definition of 'Consulting Engineer' in Section 65(31) of the Finance Act, 1994, which, as originally enacted, referred to 'any professionally qualified engineer or an engineering firm'. It noted that the expression 'any body corporate' was introduced by amendment only with effect from 01.05.2006. The Tribunal placed reliance on the Board's Circular No.49/11/2002-ST which treats designing and drawing undertaken as part of turnkey construction contracts as services rendered to oneself in the course of construction (and not as a separate consulting engineer service chargeable to service tax). The Tribunal also considered the decision of the Hon'ble Delhi High Court in CCEx. & Service Tax v. Simplex Infrastructure & Foundry Works, which held that prior to 01.05.2006 the definition did not include a private limited company or other body corporate. Applying these authorities and the definition as it stood prior to the 2006 amendment, the Tribunal concluded that the respondent-being a corporate construction entity-cannot be treated as rendering 'Consulting Engineer' services within the meaning of Section 65(31) for the period before the amendment, and therefore is not liable to service tax under that head for the activities in question. [Paras 3, 4, 5]

The Department's appeal is dismissed; the respondent's activities do not constitute 'Consulting Engineer' service under Section 65(31) as it stood prior to 01.05.2006 and are not taxable as such.

Final Conclusion: The appeal filed by the Revenue is dismissed: applying the statutory definition as it stood prior to the 2006 amendment, read with the Board Circular and the Delhi High Court authority, the respondent (a corporate construction entity) does not fall within 'Consulting Engineer' service and is not liable to service tax under that head for the period in question.

Service tax liability - Interest for delayed remittance of collected tax - Reconciliation of accounts - Penalty for delayed payment

Interest for delayed remittance of collected tax - Service tax liability - Whether interest is payable where an assessee collects service tax from subscribers but remits it to the Government after a time gap. - HELD THAT: - The Tribunal noted that MTNL collected service tax from its subscribers and subsequently remitted those amounts to the Government. The adjudicating authority found, on the record, that there was an average delay of about two months between recovery from subscribers and payment to the Government. The Court held that charging interest for the period of delay in remitting the collected tax is fair and reasonable, and upheld the adjudicating authority's exercise of charging interest for the delayed payment. [Paras 3, 4]

Charging of interest for delayed remittance of service tax collected from subscribers is upheld.

Reconciliation of accounts - Service tax liability - Penalty for delayed payment - Whether the residual demand of service tax and penalty (after reconciliation) is sustainable. - HELD THAT: - The adjudicating authority, in de novo proceedings, accepted MTNL's reconciliation to the extent of dropping the bulk of the earlier demand, but upheld a small residual demand. The Tribunal observed that the adjudicating authority correctly appreciated the reconciliation and yet found a remaining service tax liability together with interest and penalty for the period and facts before it. The Tribunal found no reason to interfere with that conclusion and sustained the remaining demand together with interest and penalty. [Paras 1, 4, 5]

The small residual demand of service tax, along with interest and penalty, is upheld.

Final Conclusion: The appeal is dismissed; the adjudicating authority's order is upheld insofar as interest for delayed remittance and the remaining small service tax demand with penalty are sustained, while the larger portion of the original demand had been dropped following reconciliation.

Clearing & Forwarding Agent Services - Inclusion of freight in assessable value - Scope of show cause notice - Finality of unchallenged appellate finding

Clearing & Forwarding Agent Services - Inclusion of freight in assessable value - Scope of show cause notice - Finality of unchallenged appellate finding - Activity undertaken by the respondent does not fall under the category of Clearing & Forwarding Agent Services and the freight recovered is not includible under that service. - HELD THAT: - The show cause notice alleged that freight recovered by the respondent was includible in the services provided under the category of Clearing & Forwarding Agent Services. The respondent contested the classification of its activity as Clearing & Forwarding Agent Services, and the Commissioner (Appeals) found that the respondent's activity does not fall within that category. That finding of the Commissioner (Appeals) was not challenged by the Revenue. Although the Revenue contended before the Tribunal that the question of classification was not the subject-matter of the show cause notice, the record shows the notice did raise the inclusion of freight in the assessable value under Clearing & Forwarding Agent Services and the respondent had defended on the basis that its activity was not such a service. Where the appellate authority's determinative finding on classification remains unchallenged by the Revenue, the Tribunal will uphold that finding and the consequent conclusion that freight is not includible under the said service.

Impugned order holding that the respondent's activity is not Clearing & Forwarding Agent Services and that freight is not includible is upheld; Revenue's appeal dismissed.

Final Conclusion: The appeal by Revenue is dismissed and the order of the Commissioner (Appeals) holding that the respondent's activity does not fall within Clearing & Forwarding Agent Services (with consequent non-inclusion of freight) is affirmed.

Validity of show cause notice - Requirement to specify activity and its classification in a show cause notice - Classification as Repair and Maintenance Service - Confirmation of service tax demand and penalty

Validity of show cause notice - Requirement to specify activity and its classification in a show cause notice - Classification as Repair and Maintenance Service - Show cause notice dated 05.03.2010 is not sustainable for failing to specify the activity undertaken by the appellant or to establish how that activity is classifiable as Repair and Maintenance Service. - HELD THAT: - The Tribunal examined the show cause notice and found it did not identify the activity performed by the appellant nor explain how that activity attracted or was classifiable under Repair and Maintenance Service. Revenue proceeded on a presumption that taxable service had been provided without first deliberating on and recording the factual and classificatory basis for treating the activity as taxable. Those are vital aspects which a show cause notice must disclose to sustain a demand; their absence renders the notice unsustainable. Consequently, the demand confirmed on the basis of that notice cannot stand. [Paras 2]

Show cause notice dated 05.03.2010 is held unsustainable and the confirmation founded on it is set aside.

Confirmation of service tax demand and penalty - Consequential relief and compliance timeline - Impugned Order in Appeal confirming demand and upholding penalty is set aside and the appellant is to be granted consequential relief within 90 days. - HELD THAT: - In view of the infirmity in the show cause notice, the appellate order confirming the demand of service tax and upholding the penalty cannot be sustained. The Tribunal therefore allowed the appeal, set aside the impugned Order in Appeal and directed the revenue to provide consequential relief to the appellant. A specific compliance period of 90 days from receipt of the order was imposed for giving effect to the relief. [Paras 3]

Impugned Order in Appeal is set aside; appeal allowed and revenue directed to grant consequential relief within 90 days.

Final Conclusion: The appeal is allowed: the show cause notice dated 05.03.2010 is held unsustainable for failing to specify the activity and its classificatory basis as Repair and Maintenance Service; the appellate order confirming demand and penalty is set aside and the revenue is directed to give consequential relief within 90 days.

Cenvat credit for Transport of Goods by Road Services - Classification of service tax as Business Auxiliary Services versus Transport of Goods by Road Services - Burden of proof on Revenue to establish nature of services - Limitation - invocation of longer period and requirement of suppression/mala fide - Distinction between suo motu refund and availment of Cenvat credit

Cenvat credit for Transport of Goods by Road Services - Classification of service tax as Business Auxiliary Services versus Transport of Goods by Road Services - Burden of proof on Revenue to establish nature of services - Appellant entitled to Cenvat credit of service tax paid in respect of the amount shown as 'other income' because that income arose from transportation activities and not from Business Auxiliary Services. - HELD THAT: - The Tribunal found that the Service Tax sum paid by the appellant was in respect of amounts shown as 'other income' which, on the appellant's case, represented differential cartage and therefore related to transportation of goods by road - a Cenvatable input service. Revenue failed to produce evidence that the 'other income' arose from services provided under the category of Business Auxiliary Services; mere payment under that head did not prove the nature of the service. In the absence of evidence to substantiate Revenue's classification and having accepted the appellant's explanation that the income was on account of transportation activities, the Tribunal held that the credit taken in respect of those payments was rightly claimable as Cenvat credit. [Paras 5, 6, 9]

Credit availed by the appellant in respect of the service tax paid is allowable as Cenvat credit on the ground that the payments related to Transport of Goods by Road Services and not to Business Auxiliary Services.

Limitation - invocation of longer period and requirement of suppression/mala fide - Demand raised by invoking the longer period of limitation is not sustainable. - HELD THAT: - The Tribunal observed that the appellant had recorded the credit in the Cenvat credit account on 31/10/2007 and that the fact was subsequently detected in audit. The lower authorities' conclusion that the appellant suppressed facts with mala fide intention was not borne out, since the credit entry was reflected in statutory records and discovered on scrutiny. On these facts, invocation of the extended limitation period for raising the demand was held unsustainable and the demand was liable to be set aside on limitation grounds. [Paras 7, 9]

Demand raised by invoking the longer period is set aside as not sustainable for want of suppression or mala fide conduct by the appellant.

Distinction between suo motu refund and availment of Cenvat credit - Suo-motu refund - The Larger Bench decision in BDH Industries concerning suo motu refund does not apply to the present case of availment of Cenvat credit. - HELD THAT: - The Tribunal noted that the cited Larger Bench authority dealt with the propriety of taking suo motu refund without sanction, which is distinguishable from the present facts where the appellant sought to avail Cenvat credit for service tax paid on GTA services (an admitted Cenvatable input). Therefore the ratio in BDH Industries is inapplicable and does not preclude the availment of credit in this case. [Paras 8]

The BDH Industries ratio is not applicable; the appellant's availment of Cenvat credit is not barred on that ground.

Final Conclusion: Impugned order confirming the demand and imposing penalties is set aside; the appeal is allowed and the appellant is granted consequential reliefs including allowance of the Cenvat credit and relief on limitation.

Service Tax Voluntary Compliance Encouragement Scheme, 2013 - VCES certificate (VCES-3) - effect of VCES on pending show cause notices - reverse charge mechanism for GTA and Manpower Supply Agency services - remand for fresh adjudication - extended period of limitation for concealment/suppression

Service Tax Voluntary Compliance Encouragement Scheme, 2013 - VCES certificate (VCES-3) - effect of VCES on pending show cause notices - Whether the assessee was entitled to VCES relief and whether the Commissioner rightly deleted demand to the extent covered by the VCES declaration. - HELD THAT: - The Tribunal upheld the learned Commissioner's conclusion that the assessee had availed VCES and obtained the requisite acknowledgement (VCES-3) from the competent authority and, therefore, the demand in respect of GTA service up to 31/12/2012 was rightly dropped. The Tribunal clarified that the VCES scheme applies only up to 31/12/2012 (and not up to 31/03/2013 as erroneously stated in the impugned order) and that the VCES declaration by the assessee covered GTA services for the period falling within the scheme. No show cause notice under Section 111 of the VCES was shown to have been issued cancelling that relief, and the VCES acknowledgement issued by the designated officer supports the relief granted by the Commissioner. [Paras 5, 6, 9]

Benefit under VCES was correctly allowed by the Commissioner and the demand in respect of GTA service up to 31/12/2012 is deleted; the Tribunal clarifies VCES is applicable only up to 31/12/2012.

Reverse charge mechanism for GTA and Manpower Supply Agency services - remand for fresh adjudication - Determination of tax liability in respect of GTA service, Manpower Recruitment and Supply Agency Service and slaughtering/slaughtering-related charges. - HELD THAT: - The Tribunal found that the common bills raised by service providers included components on which tax had already been discharged and that there were errors in computation inflating the demand. In view of these factual and computation issues, the Tribunal allowed the assessee's appeal by remanding the matter to the adjudicating authority for fresh consideration and directed the authority to hear the assessee on these three services and determine the tax liability in accordance with law. The assessee was directed to seek a hearing and present its replies and documents to the adjudicating authority within the stipulated time. [Paras 7, 10]

Appeal of the assessee allowed by way of remand to the adjudicating authority to re-determine tax liability on GTA service, Manpower Supply Agency Service and slaughtering charges in accordance with law.

Extended period of limitation for concealment/suppression - suppression/ concealment attracting extended period - Whether extended period of limitation is invocable in respect of certain alleged undisclosed services. - HELD THAT: - The Tribunal upheld the finding that extended period of limitation is invocable because the assessee admittedly failed to disclose service tax payable under the head of Manpower Supply Agency Service and also in respect of Renting of Immovable Property Service. These non-disclosures amounted to suppression/ concealment, attracting the extended period for adjudication. [Paras 11]

Extended period of limitation is invocable for the alleged non-disclosure in respect of Manpower Supply Agency Service and Renting of Immovable Property Service.

Final Conclusion: The Commissioner's allowance of VCES relief (deletion of demand up to 31/12/2012) is affirmed; the assessee's appeal is partly allowed by remanding disputed tax liability on GTA, Manpower Supply Agency and slaughtering-related charges to the adjudicating authority for fresh decision; the Revenue's appeal is dismissed; and extended period of limitation is held invocable for non-disclosure relating to Manpower Supply Agency Service and Renting of Immovable Property Service.