1. DCIT vs. JINDAL PHOTO LIMITED, I.T.A. No. 4539/Del./2010, ITAT-DELHI, (BENCH –‘G’)
For making disallowance under Section 14A read with Rule 8D, onus on Revenue to show nexus between expenditure & tax-free income
Held_that_the
assessment order does not evince any such satisfaction of the AO
regarding the correctness of the claim of the assessee. As such, Rule
8D of the Rules was not appropriately applied by the AO. It has not
been done by the AO that any expenditure had been incurred by the
assessee for earning its dividend income. Merely, an ad hoc
disallowance was made. The onus was on the AO to establish any such
expenditure.
(Please click here for judgment)
2. [Contribution by CA. Amarpal and contributor is available at email-id : amar.p.ca1@gmail.com ]
Deliberate misdeclaration is compulsory for invoking section 78 of Finance Act, 1994
Ess Ess Engineering Vs. CCE, Chandigarh [2011] 30 STT 10 (New Delhi – CESTAT)
Subject: For
imposing penalty u/s 78 of Finance Act, 1994, some positive evidence of
deliberate misdeclaration with intent to evade service tax is
compulsory.
Facts & Issue:
The assessee did not pay service tax on fabrication
and dismantling activity undertaken by it on belief that same were not
taxable. On being pointed by auditors, he paid entire service tax along
with interest. Whether he was liable for penalty.
Judgement (Conclusion):
For
imposition of penalty under section 78, some positive evidence of
deliberate misdeclaration of value of taxable service, with intent to
evade the service tax, other than mere failure to declare the full
value of taxable service in returns, must be produced. In the instant
case, there was no dispute that in the books of account and other
financial records, all the transactions had been disclosed and those
records had been produced by the assessee before the departmental
auditors. In view of those circumstances, there was no justification
for imposition of penalty under section 78. [Para 6]
(Please click here for judgment)
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