TaxTMI 
TaxTMI 
TaxTMI 
2010 (9) TMI 871
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.... (Tribunal)], proposing to raise following substantial questions of law :- A. Whether the learned Tribunal is justified in rejecting the appellant's contention that the appellant is not a 'commercial concern' and therefore does not fall within the scope of the definition of the term 'security agency' as defined in Section 65(40) of the Finance Act, 1994? B. Whether the test laid down and applied by the learned Tribunal for rejecting the appellant's contention that the appellant is not a commercial concern is in the teeth of the Hon'ble Supreme Court Constitution Bench judgment reported as (1980) 121 ITR 1? C. Whether Section 15(2) of the PESCO Act is a charter ....
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....ns has changed from time to time) of the Finance Act, 1994 ("the Act") and is taxable under Section 66. Security Agency Service became taxable w.e.f. 16-10-1998. The appellant applied for registration under the Act and was issued the registration certificate on 7-12-1998. Inspite of registration, the appellant neither paid service tax nor filed return. Notice dated 29-7-1999 was issued requiring it to file the return and after correspondence, it was clarified that even if the appellant did not have profit motive and was not 'commercial concern', it was liable to pay Service tax. Finally, vide letter dated 8-8-2003, the appellant was asked to pay service tax for the period from October 1998 to March 2003 with interest. The appellant paid the....
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.... prepares annual profit and loss account and balance sheet. It is expected to generate resources to sustain itself and not fall into insolvency. It is free to deploy its funds in carrying out its functions which included marketing, processing, supply and storage of agricultural produce, small scale industry, building, construction, transport and other business, trade or activity, as approved by the Government and it can invest the surplus funds generated in Government securities or in such other manner as it may decide. The appellant corporation therefore functions like a commercial concern. xx xx xx xxx xxxx Tribunal in the case of New Industrial Security v. C.C.E. reported in 2006 (3) S.T.R. 197 and Panther Detective v. C.C.E. reported ....
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.... if condition laid down therein was fulfilled. Prior to 10-9-2004, proviso to Section 73 did not require existence of fraud, collusion or willful misstatement or suppression of facts and only requirement was that escapement should be by reason of omission or failure on the part of the assessee to make return or disclose material facts. Since the impugned order in original in the present case was dated 29-11-2004, the amended provision was applicable and in absence of finding of the requisite mens rea, as per amended provision invocation of extended limitation was without jurisdiction. 5. We are unable to accept these submissions. As regards absence of profit motive, we find that the charging provision under Section 68 of the Act provi....
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....utes it is used in the sense of an occupation, or profession which occupies the time, attention and labour of a person, normally with the object of making profit. To regard an activity as business there must be a course of dealings, either actually continued or contemplated to be continued with a profit motive, and not for sport or pleasure." 8. In State of T.N. v. Board of Trustees of the Port of Madras, (1999) 4 SCC 630, it was held that whether profit motive was essential ingredient in a particular taxing statute depended upon the legislative intent as expressed in the statutory scheme. 9. In Sai Publication Fund, as per statutory scheme under Bombay Sales Tax Act, 1959, the definition of dealer under Section 2(11) required p....