Jurisprudentiol - Monday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise

CENVAT Credit - Commercial complex is constructed within the factory premises as per layout submitted to the department while taking registration - Prima facie appellant entitled for service tax paid on construction of commercial complex - Pre-deposit waived and stay granted: CESTAT

INPUT Service credit has been denied on the premise that the service of Construction of Commercial complex is outside the factory premises. On perusal of the record, it is the contention of the applicant that this commercial complex is constructed within the factory premises as per layout submitted with the department for granting excise registration. If that be the situation, the applicants are entitled for input service credit. Therefore, prima facie applicant has made out a case for 100% waiver of pre-deposit.

Income Tax

Whether when a part of residential property owned by company is occupied by Director of company and rest by shareholders, such rental income is to be treated as business income in first case and rental income in second - YES: ITAT

THE issues before the Bench are - Whether when a part of the residential property owned by the company is occupied by the Directors of the company and the rest by the shareholders, such rental income is to be treated as business income in the first case and rental income in the second; Whether when the rent is given at a lower rate to the shareholder of the company, the AO is justified to consider the market value as the rental income and Whether when the main business of the assessee is not lending in an organized manner and assessee has not filed any appeal in the preceding year treating the income as income from other source, it cannot be treated as business income. And the verdict partly goes in favour of the assessee.

Service Tax

Promotion of brand or promotion of branded goods - Matter referred to Third Member due to difference of opinion - ROM by applicant on the ground that M(J) had not given his findings on the issue of export of service and limitation, therefore, there is a mistake apparent on the records - since M(J) has given his findings on merit, therefore, he is not required to give findings on other issues - ROM dismissed: CESTAT

THERE was an order passed on 20.06.2012 wherein the Member (J) has given his findings on merit that the applicant is not liable to pay service tax under the Business Auxiliary Service as alleged, therefore, he has not gone into other issues raised by the learned Counsel for the applicant. On the other hand, the Member (Technical) while having a difference of opinion with the Member (Judicial) had considered other aspects also. As Member (Judicial) had given his findings on merit, it is not required to give finding on other issues by the Member (J).

See our columns Monday for the judgements