Oct 222014
 

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The Ministry of Micro, Small and Medium Enterprises gets ISO 9001: 2008 Certificate – Dated:- 22-10-2014 – The Ministry of Micro, Small and Medium Enterprises has been awarded ISO 9001:2008 certification, demonstrating the Ministry s mission of promoting the growth and development of Micro, Small and Medium Enterprises with dedication and commitment. Speaking on the occasion Shri Kalraj Mishra, Union Minister for Micro, Small & Medium Enterprises expressed happiness over this accomplishment and stated it is a matter of pride that the Ministry is one of the first in Government of India to be awarded ISO certification. He appreciated the hard work put in by the officers and staff to align the systems and procedures with the requirements of ISO standards. He further stated that implementation of ISO standards will enable the Ministry to identify areas for improvement and also bring in transparency and accountability in the functioning. Cabinet Secretariat had issued Guidelines to all Ministries/Departments for obtaining ISO Certification. Accordingly, this Ministry had started the preparations in December 2013 by constituting a Management Committee to give direction and momentum to the implementation of ISO 9001:2008. Several rounds of training were imparted to the Ministry s personnel and the Quality Manuals were prepared in line with the ISO r………………

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Oct 222014
 

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Central Excise – Dated:- 22-10-2014 – CENVAT Credit – if the job worker has taken any input credit on furnace oil which has been used in the job work goods and same has been cleared without paym………………

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Oct 222014
 

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Customs – Dated:- 22-10-2014 – Detention of goods – If there are significant differences in shape, size, test etc. of betel nuts of Indian origin than the betel nuts of ………………

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Oct 222014
 

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Income Tax – Dated:- 22-10-2014 – Addition u/s 68 – nce the transaction of purchase and sale was found to be bogus then the sale proceeds had to be added as income of the assessee u/s 68 of ………………

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Oct 222014
 

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Income Tax – Dated:- 22-10-2014 – Entitlement for registration u/s 80G(5) – to provide medical facilities in their hospital to all persons of any c………………

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Oct 222014
 

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Income Tax – Dated:- 22-10-2014 – Capital gain u/s 45 – Transfer of assets from partnership firm to Private limited company – section 45(4) is no………………

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Oct 222014
 

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Income Tax – Dated:- 22-10-2014 – Validity of authorization of issue u/s 132 – Notice issued u/s 158BD – at the time of search of the premises, the petitioner infact signed the panc………………

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Oct 222014
 

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RBI Reference Rate for US $ – Dated:- 22-10-2014 – The Reserve Bank of India s Reference Rate for the US Dollar is ₹ 61.2355 on October 22, 2014. The corresponding rate for the previous day (October 21, 2014) was ₹ 61.2967. Based on the reference rate for the US Dollar and the middle rates of the cross-currency quotes, the exchange rate of EUR, GBP and JPY against the Rupee are given below: ………………

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Oct 222014
 

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M/s NITIN MANPOWER & SECURITY SERVICES Versus Commissioner of Central Excise, Customs and Service Tax, BELGAUM – Service Tax – CESTAT BANGALORE – Tri – Waiver of pre deposit – Manpower recruitment and supply agency’s service – penalties under Section 77 & 78 – Held that:- Issue involved requires consideration of the contract, decisions relating to reimbursement of expenses of various High Courts and Tribunals, definition of ‘manpower supply service’ as applicable to the facts of this case, facts as to whether extended period could have been invoked, etc. which can be done at the time of final hearing. At this stage, we consider that the amount already deposited by the appellant is sufficient for the purpose of hearing the appeal. Accordingly, there shall be waiver of pre-deposit and stay against recovery of the balance dues for 180 days from the date of this order – stay granted. – 2014 (10) TMI 607 – CESTAT BANGALORE – TMI – ST/3131/2012-DB – MISC ORDER No.21456 / 2014 – Dated:- 27-6-2014 – SHRI B.S.V.MURTHY AND SHRI S.K. MOHANTY, JJ. For the Appellant : Mr. Pradyumna G.H., Adv. For the Respondent : Mr. N. Jagdish, A.R. ORDER Per B.S.V. MURTHY Appellants are engaged in providing manpower recruitment and supply agency s service . As per the requirement of Karnataka State Government, the appellants provided teachers for schools. According to the conditions of the order issued by the State Government, honorarium fixed for teachers and principals was to be paid by the appellants and the appellants were to get 10% of such remuneration or honorarium paid to the teachers. The appellants even though had taken registration of service tax, never paid any ta………………

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Oct 222014
 

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Bharat Sanchar Nigam Ltd. Versus CCE & ST, Jaipur-II – Service Tax – CESTAT NEW DELHI – Tri – Reversal of differential duty of 50% of CENVAT credit – Benefit of Section 80 – Held that:- Since there is direct judgement on the issue in the case of Ceolric Services [2011 (2) TMI 764 - CESTAT, BANGALORE] remanding the matter to the adjudicating authority, I set aside the impugned order and remand the matter back to the adjudicating authority for reconsideration in view of provisions of Rule 7C of the Rules and after verification of the records. This has to be done as ld. Advocate has contended that they have actually taken cenvat credit of 50% on capital goods but due to mistake it was shown as 100% – Adjudicating authority shall pass order within three months from the date of issue of this order after affording a reasonable opportunity of producing records – Decided in favour of assessee. – 2014 (10) TMI 606 – CESTAT NEW DELHI – TMI – Appeal No.ST/50215/2014 – FINAL ORDER No.52689/2014 – Dated:- 2-7-2014 – Mr. Manmohan Singh, J. For the Appellant : Shri Sameer Agarwal, Advocate For the Respondent : Shri Devender Singh, JCDR JUDGEMENT Per MANMOHAN SINGH: Shri Sameer Agarwal, ld.Advocatre appeared on behalf of the appellant and Shri Devender Singh, ld.JCDR for the department. 2. The appellant have come in appeal against OIA No.248(OPD)ST/JPR-II/2013 dt.16.9.2013 passed by the Commissioner(Appeals), Jaipur-II, wherein the Commissioner (Appeals) has set aside imposition of penalty and gave benefit of section 80 of Finance Act, 1994. However, regarding reversal of differential duty of 50% of cenvat credit on capital goods, he did not pass order. 3. Ld.Advocate submitted that during the course of audit of records of the appellant, it was found that they have wrongly availed 100% cenvat credit on capital goods in their ST-3 returns. Rule 4(2) (a) of Cenvat Credit Rules, 2004 provided that the cenvat credit in respect of capital goods received in the premises of provider of output service at any point of time in a given financial year shall be taken only for an amount not exceeding 50% of the duty paid on such capital goods in the same financial year. He submitted that appellant have reversed the extra amount on being po………………

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Oct 222014
 

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WIPRO LTD Versus COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, PONDICHERRY – Service Tax – CESTAT CHENNAI – Tri – Waiver of pre deposit – Information Technology services – service consumed in SEZ – Held that:- In the case of Adani Power Ltd. (2014 (1) TMI 200 – CESTAT AHMEDABAD), unconditional stay was granted on the ground that the Notification No.4/2004-ST dt. 31.3.2004 specifically extended to the consumption of taxable service of any description to a developer of Special Economic Zone or any unit in any Special Economic Zone for consumption of the services within such Special Economic Zone. The other issues would be examined in detail at the time of appeal hearing – deposit of ₹ 14.53 lakhs is sufficient for waiver of predeposit of balance amount of tax along with interest and penalty. Accordingly, predeposit of balance amount of tax along with interest and penalty would be waived and recovery be stayed till disposal of appeal – Stay granted. – 2014 (10) TMI 605 – CESTAT CHENNAI – TMI – ST/40206/2013-DB – - Dated:- 2-7-2014 – Shri Pradip Kumar Das and Shri R. Periasami, JJ. For the Appellant : Mr S Muthuvenkatraman, Adv. For the Respondent : Mr M Rammohan Rao, DC (AR) ORDER Per: P K Das: 1. The applicant filed this application for waiver of pre deposit of tax of ₹ 26,54,01,845/- along with interest and penalty for the period March 2009 to September 2009. 2. The learned advocate on behalf of the applicant submits that an amount of ₹ 14,83,51,647/- was demanded under reverse charge mechanism on the ground that they have received Information Technology services from Microsoft Corporation intended for SEZ unit. It is contended that they have not received any IT services from Microsoft Corporation. On the contrary, they are large account reseller, they asked for price negotiation between Microsoft and the end customer in the SEZ. He relied upon the decision of the Tribunal in the case of Adani Power Ltd. Vs CST Ahmedabad – 2013 (31) S.T.R. 558 (Tri.-Ahmd.). In that case, the Tribunal granted unconditional stay in respect of demand raised under reverse charge mechanism in respect of Banking and Financial Services to developer of SEZ for consumption of services within SEZ unit. In the present case, the services were consumed in SEZ and therefore, no demand is sustainable. 2.1 The dema………………

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Oct 222014
 

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OBEROI MALL LTD. Versus COMMISSIONER OF SERVICE TAX, MUMBAI – Service Tax – CESTAT MUMBAI – Tri – Waiver of pre deposit – Eligibility of Cenvat Credit – construction of an immovable property – Held that:- in the case of Sai Sahmita Storages (P) Ltd. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] and this tribunal in the case of Navratna S.G. Highway Pro. (P) Ltd. [2012 (7) TMI 316 - CESTAT, AHMEDABAD] has held that Cenvat Credit of service tax paid on input services used in the construction of immovable property would be available if such immovable property is used for rendering other taxable services. Following the same in the present case also, we hold that the appellant has made out a prima facie case for grant of stay. Accordingly, we grant unconditional waiver from pre-deposit of dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal – Stay granted. – 2014 (10) TMI 604 – CESTAT MUMBAI – TMI – Appeal No. ST/86947, 86948 & 86949/14 – - Dated:- 7-7-2014 – P R Chandrasekharan and Ramesh Nair, JJ. For the Appellant : Mr S S Gupta, CA For the Respondent : Mr K S Mishra, Addl. Comm. (AR) ORDER Per: P.R. Chandrasekharan 1. The appeal and stay petition are directed against order-in-original No. 04-06/ST-II/RS/2014 dated 30/01/2014 passed by the Commissioner of Service Tax, Mumbai. Vide the impugned order, the learned adjudicating authority has disallowed Cenvat Credit amounting to ₹ 2,02,62,906/- availed by the appellant in respect of various input services relating to construction of mall which was subsequently rented out to various customers. Apart from the service tax demand, interest liability has also been confirmed and equivalent amount of penalty under Section 78 and a penalty of ₹ 5,000/- under Section 77 were also imposed. Aggrieved of the same, the appellant is before us. 2. The learned Consultant for the appellant submits that this is second round of litigation. In the first round of litigation, when the matter had come up before this Tribunal, this Tribunal had granted stay vide order No. S/163-165/13/CSTB/C-I dated 14/01/2013 and thereafter vide Order No. ST/CO/91025 to 91027/13 dated 22/05/2013 the matter was remanded back to the adjudicating authority to give clear finding as to why the appellant is not eligible for the benefit of service tax paid on inputs services in respect of construction services, in the light of the decision of the Hon'ble High Court of Gujarat in the case of Cadila Healthcare Ltd. {2013 (30) ST 3} and the decision of this Tribunal in the case of Navaratna S.G. Highway Prop (P) Ltd. {2012 (28) STR 166 (Tri-Ahmd). In the second round of litigation, the adjudicating authority has once again confirmed the demand by denying the credit by relying on the decision of the Hon'ble High Court of Allahabad in the case of Galaxy Mercantile Ltd. – 2013-TIOL-751-HC-ALL-ST. The learned Consultant submits that in the Galaxy Mercantile Ltd. case, the question for consideration before the Hon'ble High Court was, whether Cenvat credit on ………………

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Oct 222014
 

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COBRA INSTALACIONES Y. SERVICIOS SA. Versus COMMISSIONER OF C. EX., NASHIK – Service Tax – CESTAT MUMBAI – Tri – Penalty u/s 78 – erection, commissioning and installation services – Held that:- During the impugned period, Service Tax was payable on receipt basis. Therefore the allegation of the ld. AR that the appellant has utilised the Service Tax is not sustainable in the facts that still the appellant has not received 100% remuneration of the services provided by them. We further find that the appellant have calculated the liability on accrual basis and paid Service Tax payable along with interest as pointed out by the department. In these circumstances, it cannot be said that they had mala fide intention to evade payment of service tax. Therefore, the appellants need immunity from imposing penalty under Section 78 of the Finance Act, 1994. Accordingly, we set aside the penalty under Section 78 of the Finance Act, 1994 – Decided in favour of assessee. – 2014 (10) TMI 603 – CESTAT MUMBAI – 2014 (35) S.T.R. 415 (Tri. – Mumbai) – ST/767 & 769/12-Mum – Final Order Nos. A/194-195/2014-WZB/C-I(CSTB) – Dated:- 21-2-2014 – Shri Ashok Jindal, Member (J) and P.K. Jain, Member (T) Shri Rahul Thakkar, Advocate with Vinay Jain, CA, for the Appellant. Shri S. Dewalwar, Addl. Comm. (AR), for the Respondent. ORDER The appellants are in appeal against the impugned orders confirming the penalty under Section 78 of the Finance Act, 1994 to the tune of equal to the Service Tax liability. 2. The brief facts of the case are that the appellant are providing erection, commissioning and installation services to Maharashtra State Electricity & Distribution Company Ltd. (MSEDCL) from 2009 and are registered with the Service Tax department. The appellant paid and filed Service Tax returns for the year 2009-10 but due to technical difficulty in their software, they did not file Service Tax returns during the period April to September 2011 but on pointing out by the department, they paid the Service Tax along with interest before issuance of the show cause notice. 3. The department issued a show cause notice for appropriation of the demands and imposition of penalties on the appellants. The matters were adjudicated. The Service Tax paid along with interest was appropriated but penalty under Sections 77 & 78 of the Finance Act, 1994 was confirmed against both appellants. The appellants are challenging the ………………

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Oct 222014
 

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COMMISSIONER OF C. EX. & ST., BHOPAL Versus KK. KEDIA – Service Tax – CESTAT NEW DELHI – Tri – Adjustment of tax – Management and repair services – money deposited by the respondent in the old Service Tax registration code belonging to the partnership firm – Held that:- Admittedly, the Service Tax was wrongly deposited in a wrong code belonging to partnership firm which was dissolved at the relevant time. As such, it is a mistake on the part of the respondents which is required to be rectified and the amount deposited in the partnership firm is required to be adjusted in the assessee’s registered code – Decided against Revenue. – 2014 (10) TMI 602 – CESTAT NEW DELHI – 2014 (35) S.T.R. 383 (Tri. – Del.) – ST/57726/2013(SM) – Final Order No. A/50261/2014-SM(BR) – Dated:- 21-1-2014 – Ms. Archana Wadhwa, Member (J) Shri R.K. Mishra, AR, for the Appellant. None, for the Respondent. ORDER Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal. 2. After hearing both the sides, I find that the respondent was a partner in a partnership firm engaged in providing management and repair services. With effect from 1-4-2011, the said partnership firm was dissolved and fresh registration was granted to the appellant as a person. The said respondent filed a refund claim of ₹ 9,39,564/- in respect of Service Tax paid by him, by way of ad………………

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Oct 222014
 

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BHARAT SANCHAR NIGAM LTD. Versus COMMISSIONER OF SERVICE TAX, DELHI – Service Tax – CESTAT NEW DELHI – Tri – Denial of remission claim – adjustment of the excess service tax deposited – Authority rejected the claim for availing the benefit of this deposit on the ground that the assessee had filed only a photocopy of the internet banking challan dated 31-3-2008 without attestation – Held that:- Adjustment claimed of the excess service tax remitted just about 9 months prior to the due date on which the service tax liability accrues cannot be rejected on the basis of conditions spelt out in Rule 6(4A) and (4B). If an excess amount of service tax has been remitted and within a reasonable period thereof adjustment of this excess amount deposited is sought in respect of a service tax liability arising in subsequent months, there cannot be appropriation of the excess service tax deposit. Of this prima facie premise, the relevant provisions of Rule 6 may perhaps have to be interpreted by directory and not mandatory. demand of ₹ 58,36,314/- relatable to services provided to M/s. HCL Infinite, it is incumbent upon the Adjudicating Authority to verify the records to ascertain whether the amount was deposited by internet banking, particularly when the assessee provides a copy of a challan purportedly in proof of such deposit. since an amount of nearly ₹ 89,00,000/- was deposited, either in respect of the taxable services provided to M/s. HCL Infinite or by way of excess remittance of service tax on 30th June, 2006, we find a strong prima facie case in favour of the assessee. Accordingly, we grant waiver of pre-deposit and stay all further proceedings for recovery of the assessed liability, during pendency of the appeal – Stay granted. – 2014 (10) TMI 601 – CESTAT NEW DELHI – 2014 (35) S.T.R. 125 (Tri. – Del.) – ST/116/2012 – Stay Order No. ST/50254/2014-CU(DB) – Dated:- 29-1-2014 – G. Raghuram, President and Shri Rakesh Kumar, Member (T) Shri Alok Mahajan, Advocate, for the Appellant. Shri Govind Dixit, Authorized Representative, for the Respondent. ORDER The impugned adjudication order confirmed levy of service tax, on account of short remittance of ₹ 67,47,596/- and education cess of ₹ 53,659/-, apart from penalty as specified, due for the period October 2006 to March 2007. Proceedings were initiated by a show cause notice dated 4-6-2008 culminating in the adjudication order dated 30-11-2011 passed by the Commissioner (Adjudication), Service Tax, New Delhi. The adjudication order records a claim of adjustment of ₹ 30,47,907/- asserted by the petitioner as representing excess service tax remitted on 30th June, 2006 and remittance of ₹ 58,36,314/- in respect of services provided by assessee to M/s HCL Infinite in respect of the bills raised and collected from M………………

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Oct 222014
 

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M/s. Mark Infrastructure Pvt. Ltd. Versus The Commercial Tax Officer – VAT and Sales Tax – ANDHRA PRADESH HIGH COURT – HC – Exemption from payment of tax – Exemption to sub-contractor – Suppression of facts – Abuse of Court – Contempt of Court – Held that:- petitioner received the show- cause notice dated 12.08.2013 on 14.08.2013. It is also not in dispute that no reply was filed thereto by the petitioner before the first respondent, prior to the assessment order being passed on 31.08.2013. The petitioner claims to have submitted their objections, vide letter dated 30.08.2013, not to the first respondent, but to the office of the second respondent on the same day. The letter dated 30.08.2013 contains initials, which the Learned Counsel for the petitioner contends is the signature of the person, in the office of the 2nd respondent, who received the said letter. The letter does not even bear the stamp or seal of the office of the second respondent. The writ affidavit is silent regarding the name and identity of the person who is alleged to have received the said letter. The petitioners contention that their employee had, by mistake, delivered the said letter to the office of the second respondent cannot be readily accepted as, even subsequent thereto, in the correspondence between the petitioner on the one hand and respondents 1 to 3 on the other, no reference is made to their having submitted their objections, to the show cause notice dated 12.08.2013, on 31.08.2013. The affidavit, filed in support of the Writ Petition, makes no mention of any of the events which took place subsequent to the assessment order dated 31.08.2013. As is evident from the facts narrated hereinabove, the petitioner was repeatedly called upon to pay the tax due; proceedings under Section 29 of the Act was instituted; and both the petitioners bankers and the contractee i.e. SRMT were called upon to pay, the amounts due from them to the petitioner, directly to the 2nd respondent. The petitioner received the assessment order dated 31.08.2013 on the same day. It is only after several letters were issued calling upon them to pay the demanded amount, and proceedings under Section 29 of the Act were initiated for recovery of the arrears, did the petitioner make an application on 19.02.2014 seeking payment of the tax and penalty in instalments. The Deputy Commissioner (CT) granted instalments by his proceedings dated 05.03.2013. The petitioner was required to pay the first instalment on 25.03.2014. Suppressing all the facts, subsequent to the assessment order dated 31.08.2013 including their having sought for and being granted instalments for payment of the tax with penalty, the petitioner invoked the jurisdiction of this Court under Article 226 of the Constitution of India on 20.03.2014, and obtained an interim order of stay on 21.03.2014. While every abuse of the process of the Court may not necessarily amount to Contempt of Court, abuse of the process of the Court calculated to hamper the due course of a Judicial proceeding, or the orderly administration of justice, is Contempt of Court. It may be that certain minor abuses of the process of the court may be suitably dealt with as between the parties or in some other manner. But it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process, and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression contempt of Court may seem to suggest, but to protect and vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with. Deceiving the Court by deliberately suppressing a fact, or giving false facts, may be a punishable contempt. Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bonafides. In such cases the court has extensive alternative powers to prevent an abuse of its process. Where the Court, by exercising its powers under rules of court or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt. Both on merits and for abuse of process of Court, the Writ Petition is liable to be, and is accordingly, dismissed. While initiation of contempt proceedings for such misrepresentation and suppression of facts is in order, we refrain from doing so and, instead, dismiss the Writ Petition with exemplary costs of ₹ 25,000/- which the petitioner shall pay to the State Government within four weeks – Decided against assessee. – 2014 (10) TMI 600 – ANDHRA PRADESH HIGH COURT – TMI – Writ Petition No. 8665 of 2014 – - Dated:- 9-9-2014 – Ramesh Ranganathan And M. Satyanarayana Murthy,JJ. For the Petitioner : Sri M. V. J. K. Kumar For the Respondents : Sri M. Govind Reddy, Learned Special Standing Counsel for the Commercial Taxes ORDER (Per the Honble Sri Justice Ramesh Ranganathan) The assessment order passed by the first respondent on 31.08.2013 is questioned in this Writ Petition as being arbitrary, illegal, in violation of principles of natural justice, Articles 14, 19(1)(g) of the Constitution of India and Section 4(7)(d) of the A.P. VAT Act, 2005 (hereinafter called the Act). The petitioner also seeks a declaration that they are not liable to pay tax in the light of the exemption under the proviso to Section 4(7)(d) of the Act; and, consequently, to direct the respondents to refund the tax deducted from the main contractor. The petitioner is a works contractor engaged in the business of executing works relating to construction of buildings. The petitioner entered into an agreement with M/s. Sri Ramdas Motor Transport Corporation (for short SRMT) on 04.02.2011 for executing the works contract of construction of residential apartments. The said agreement dated 04.02.2011, which required the petitioner to construct residential apartments in the areas mentioned in the agreement within 24 months, stipulated that payment would be made to them according to the stage of construction. The petitioner claims that SRMT, which is the owner of the property, had entered into agreements with various individual purchasers for the construction and selling of apartments; while SRMT was the owner of the land, they were nevertheless a contractor as they enter into agreements with independent purchasers for construction and selling of residential flats, along with the property; sale by SRMT, to individual and independent purchasers, is a deemed sale taxable under the provisions of the Act as works contracts. It is the petitioners case that they had sought an option, for payment of tax by way of composition, as per the provisions of the Act and Rule 17(4) of the AP VAT Rules (hereinafter called the Rules); pursuant to the amounts received towards execution of the works contract, in a phased manner from SRMT, they had filed VAT 200 returns disclosing the contractual receipts, and had produced TDS certificates in support of payment of tax @ 1.25% as opted by them under Section 4(7)(d) of the Act; as they are builders, under the agreement with SRMT, Section 4(7)(d) of the Act, which is applicable to a dealer engaged in construction and selling of residential apartments, houses, buildings or commercial complexes, is applicable to them; SRMT was deducting tax from them on the premise that they were liable to pay tax @ 1.25% in the light of their option for composition; the petitioner was also under a similar misconception; the proviso to Section 4(7)(d) exempts the sub-contractor from payment of tax; the petitioner, being the sub-contractor, is eligible for exemption and is not liable to pay tax under the Act; however, for the works executed by them, SRMT had deducted tax @ 1.25% from their contractual receipts; the petitioner had disclosed the receipts, relating to the execution of various contracts, in their returns and had provided details of the TDS; the same were accepted by the second respondent; pursuant to the authorisation issued by the third respondent, the first respondent conducted audit of their books of accounts; on verification, and pursuant to an authorisation for assessment, a notice dated 12.08.2013 was issued by the first respondent calling upon them to show cause against the proposal to levy tax @ 4% and 5%, as the case may be, on the turnover relating to the works executed for SRMT, along with other contracts, representing ₹ 8,60,02,248/- during the assessment year 2011-2012; since they had opted for composition, under Section 4(7)(d) of the Act, tax @ 4% or 5% could not be levied on them for the works executed by them for SRMT; they had filed their reply dated 30.08.2013 contesting the levy as improper, and had sought a personal hearing; however, without considering their objections and their request for personal hearing, the impugned order came to be passed referring to a letter dated 30.08.2013 whereby the petitioner is alleged to have agreed to pay the tax; the said letter dated 30.08.2013 was not addressed by the petitioner; the objections were sent to the first respondents office through their employee who had, by mistake, submitted it at the office of the second respondent, who is the regular assessing authority before whom returns were filed by the petitioner; as the offices of the first and second respondents were in the same building, the reply ought to have been forwarded by the second respondent to the first respondent; the Managing Director of the petitioner fell sick during the period 03.09.2013 to 06.02.2014; he suffered from viral hepatitis and, consequently, the appeal could not be filed within time; the petitioner was not in a position to understand the show-cause notice, as nothing was mentioned therein giving reasons for levying a higher rate of tax; the contractual receipts from SRMT were disclosed in the returns; the impugned order levying tax on the petitioner at 4% or 5%, under Section 4(7)(b) and (c), instead of 1.00% or 1.25% under Section 4(7)(d), is without authority of law and is in violation of principles of natural justice; the petitioner is exempted from payment of tax as SRMT is liable to pay tax; even if the petitioner is ineligible for concessional rate of tax under Section 4(7)(d), they ought to have been levied tax under Section 4(7)(a) if the composition was found unacceptable; SRMT, which is selling flats, had collected tax at 1.25% from independent purchasers, and had remitted the same to the State exchequer under Rule 9 of the Rules; this shows that SRMT is the main contractor, in terms of the proviso to Section 4(7)(d) of Act; when a penalty order was passed, the petitioner filed an appeal before the first appellate authority which is pending; existence of an alternative remedy is not a bar for filing a Writ Petition; and in the light of the exemption available to the petitioner, and as tax was collected by SRMT by way of TDS and paid to the State exchequer, levy of a higher rate of tax under Section 4(7)(b) and (c) of the Act is illegal. In the counter-affidavit, filed by the first respondent, it is stated that, before passing the impugned assessment order, a pre- assessment show-cause notice was issued to the petitioner; in reply thereto, the petitioner submitted letter dated 24.08.2013, received on 30.08.2013, stating that they had no objection to the proposed assessment; this letter contains the round seal of the petitioner company; he had passed the assessment order only after receipt of the said letter; he had referred to the said letter at page six of the assessment order; the petitioner had, however, suppressed this fact and had deliberately filed a copy of another letter dated 30.08.2013, which was never filed before him, and does not bear his signature or the seal of his office; this letter was filed only to mislead this Court, and to strengthen the petitioners case; after the assessment order was passed, a notice was issued to the petitioner, by the second respondent, asking him to pay VAT; the petitioner submitted a petition dated 19.02.2014 before the third respondent admitting his liability to pay VAT, as levied under the assessment order dated 31.08.2013, and had sought to pay the same in instalments; the third respondent had considered the request sympathetically, and had passed an order dated 05.03.2014 granting the petitioner eight monthly instalments to pay the said amount; as per the said order, the first instalment fell due on 25.03.2014; suppressing these facts, the petitioner had approached this Court by filing the Writ Petition on 20.03.2014, and had obtained interim stay of recovery of VAT on 21.03.2014; in their writ affidavit, the petitioner has neither mentioned that they had filed a petition seeking instalments nor that eight instalments were granted by the third respondent; the judgments referred to by the petitioner, in the writ affidavit, deal with cases where a contract is awarded to a contractor either by the Government or some other agency and that contractor, in turn, engages sub- contractors; in all those cases, the issue involved was whether or not the liability to pay VAT was on the main contractor; in the present case, the petitioner filed a copy of the agreement entered into between them and SRMT, wherein the petitioner was shown as a contractor or builder, and the other party was shown as the owner of the property; hence, there is a direct contract between the owner and the builder; the owner is not a works contractor under the Act, and is not liable to pay VAT; the petitioner has deliberately mis-stated that SRMT is the main contractor, and they are the sub-contractors; they have referred to all those cases where there is a contractor, a contractee and sub-contractors; in the present case, there are only two parties i.e., the owner of the property, and the contractor or the builder; as per clause 8 of the agreement, the petitioner is liable to pay sales tax or VAT and, hence, they cannot rely on these judgments; the petitioner is trying to mislead this Court suppressing facts; the petitioner had entered into an agreement dated 04.02.2011 with SRMT for con………………

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