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Case Laws
Showing 201 to 220 of 773 Records
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2009 (12) TMI 862 - MADRAS HIGH COURT
Tribunal granting the relief in favour of the assessee in respect of the turnover of ₹ 4,41,68,207 as consignment sale and deleting the penalty in a sum of ₹ 4,41,682 in respect of the assessment year 1992-93 challenged
Held that:- It is on record that the assessee filed a register in form 16 showing the particulars of goods consigned on each occasion agent-wise.
The fact that on the strength of the bills the consignor's bankers are willing to trust the consignor and extend to him credit on the strength of the bills produced by him to the bank will have no bearing on the question as to whether the sale effected is a consignment sale or local sale. For the purpose of determining the character of the sale, the ability of the consignor to obtain credit from its bankers on the strength of the bills can have no impact. The documents produced before the appellate authority were examined and accepted as genuine and cover all the transactions for the year claimed as consignment sale. They cannot cease to be consignment sales merely because the authorisation letter has not been produced or merely because the agreement does not contain the clause with regard to sales return. Therefore, grounds taken by the Revenue to contend that the order of the Tribunal is erroneous cannot be accepted as valid grounds nor can be accepted as grounds based on the statutory requirements. W.P. dismissed.
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2009 (12) TMI 861 - ALLAHABAD HIGH COURT
Whether the members of the club are jointly owner of the property and all the goods of the club belong to them as trustee?
Held that:- After the enactment of corresponding amendment to the State Sales Tax Act, it is no longer open to any club, whether incorporated or unincorporated, whether proprietary or non-proprietary, to contend that the delivery or supply of food articles, etc., to its members is not a sale and that tax is not leviable on such sales.
In the light of the above discussion and by considering the totality of the facts and circumstances of the case, we are of the view that the petitioner during the assessment years under consideration was subject to Trade Tax Act and impugned notices were rightly issued to the petitioner by the Department. Appeal dismissed.
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2009 (12) TMI 860 - ALLAHABAD HIGH COURT
Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to reject the book version and make best judgment assessment on the basis of the unnumbered bills furnished by the complainant to the Trade Tax Officer (S.I.B) alleging them to relate to the revisionist without supplying the copies of such bills to the revisionist whereas the revisionist had categorically denied issuing any such bills and had specifically requested to supply copies of these bills or to show these bills to him?
Whether, on the facts and circumstances of the case, the lower authorities were legally justified to deny the revisionist an opportunity of cross-examining the complainant who had furnished the unnumbered bills to the Trade Tax Officer (S.I.B) in gross violation of the principles of natural justice?
Held that:- It is established principle of law that the assessment is not a question of law but is a question of fact and as per established proposition of law this court while exercising of power of judicial review under section 11 of the Trade Tax Act, 1948 can interfere in the order passed by the Tribunal only if the question of law is involved as in the present case no question of law is involved rather order passed by the Tribunal is concluded by findings of fact. So there is not need to interfere in the matter in question while exercising the revisional power.
In these circumstances, the assessee cannot take a plea that no opportunity has been given to him to establish his case. In view of the abovesaid fact, the order of the Tribunal which is under challenge in the present revision cannot be assailed on the ground that no opportunity of hearing was given to the revisionist and the order which is passed by the Tribunal is in violation of principles of natural justice. Revision dismissed.
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2009 (12) TMI 859 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... uld be held that the impugned order was passed beyond November 30, 2008, i.e., the impugned assessment order was barred by limitation. In course making argument the learned advocate Sri Bhattacharyya contended that by fabricating the date of order the respondent-assessing officer practised fraud and in support of his contention he cited the decision of the honourable Supreme Court in the case of Smt. Shrisht Dhawan v. Shaw Brothers reported in AIR 1992 SC 1555. The fraud not having been asserted in the application enabling the respondent-assessing officer concerned to answer the same, we cannot examine the same. It has to be noted that the liability for commission of fraud is personal criminal liability. In the result the application should be allowed. Hence, it is, ordered that the application is allowed on contest without cost. The impugned assessment order and the demand notice are set aside. The issue register be returned. DIPAK CHAKRABORTI (Technical Member). - I agree.
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2009 (12) TMI 858 - GAUHATI HIGH COURT
Non consideration of documents - Held that:- The revisional authority, as the impugned order dated September 12, 2008 would reveal, though had acknowledged the presence of the documents furnished by the petitioner in support of its plea, did not at all apply its mind thereto to ascertain the relevance or the probative value thereof, vis-a-vis the legal presumption envisioned in section 46(15)(d) of the Act. Its decision to sustain the impugned assessment is clearly based on the comprehension that the said legal presumption is absolute in terms and does not admit of any evidence to the contrary to rebut the same. In the opinion of this court, this approach being apparently erroneous and illegal has vitiated the impugned order, the same being extinctive of the petitioner's right recognised by section 46(15)(d) of the Act.
In the above view of the matter, the impugned order dated September 12, 2008 is hereby interfered with and is thus set aside. The matter stands remitted to the Commissioner of Taxes, Assam, the revisional authority for a fresh decision in accordance with law and with particular reference to section 46(15)(d) of the Act. As the impugned order is determined to be transgressive of section 46(15)(d) of the Act, the plea against maintainability of the proceeding is not entertained. The petition is thus partly allowed.
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2009 (12) TMI 857 - MADRAS HIGH COURT
Whether the transactions effected by assessee are covered within section 6(2)(b) of the Central Sales Tax Act and not a local transaction, which is exigible to tax under the Tamil Nadu General Sales Tax Act?
Held that:- There is absolutely no material to take a different view than that of the Tribunal, so as to come to a conclusion that the movement of the goods has been broken at the end of the assessee and the assessee has subsequently sold the goods to the ultimate dealers in Tamil Nadu and as such the assessee is not entitled to the benefit of section 6(2) of the Act. This revisions are dismissed.
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2009 (12) TMI 856 - KERALA HIGH COURT
Correction of application for registration for obtaining registration with retrospective effect - Held that:- In view of the registration obtained with effect from the date of making application, the respondent would be entitled to be treated as registered dealer from the date of commencement of business that is April 1, 2007 for the limited purposes of payment of presumptive taxes under section 6(5) or tax payable under compounded rate under section 8 because of the operation of clauses (a) and (b) to the proviso to section 16(2) of the Act. We also declare that dealers claiming benefit under the new provision will also be subject to the limitation contained in the second proviso to section 16(2) of Act.
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2009 (12) TMI 855 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... order and as computed by the assessing officer are the same. This aspect requires examination by the revisional authority. The application therefore succeeds in part. Hence, it is, ORDERED that the application is allowed in part on contest without cost. The decision of adding back of commission received in the impugned assessment order for the period fourth quarter ending March 31, 2003 is reversed. The disallowance of the credit note for the goods returned amounting to Rs. 2,61,282 is set aside and the revisional proceeding is remanded for reconsideration of the issue of goods returned following the command of rule 159 of the WBST Rules, 1995 and correctness of computation of taxable turnover. The petitioner shall appear before the revisional authority in the forenoon of December 30, 2009 for obtaining the date of further hearing of the revisional proceeding and production of the necessary books of account and documents. DEB KUMAR CHAKRABORTI (Technical Member). - I agree.
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2009 (12) TMI 854 - KARNATAKA HIGH COURT
Whether the purchase of the cement by the petitioner-assessee for construction of resorts attracts the payment of Central sales tax?
Held that:- In the instant case we not only find that the show-cause notice has been issued on September 5, 2001 for which admittedly the assessee has not replied nor objected to at the first appellate stage. On the other hand the assessee has taken up the contention that penalty cannot be levied under section 10(d) of the CST Act which in fact is to be understood that the assessee was well aware as to under which provision of the Act the penalty is being levied. Hence, the assessee now cannot contend contrary to the grounds urged before the first appellate authority for assailing the order of the learned Tribunal.
In view of the above facts, the question of law raised in the petition memorandum has to be answered against the assessee and in favour of the Revenue. Accordingly the petition is dismissed.
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2009 (12) TMI 853 - SUPREME COURT
Whether the High court was justified in granting full back wages to the respondent in spite of the denial thereof by the Labour Court?
Held that:- The High Court was unjustified in awarding full back wages. We are also of the opinion that the Labour Court having found the termination to be illegal was unjustified in not granting any back wages at all. Thus we direct that the respondent shall be paid 50 per cent of the back wages from the date of termination of service till reinstatement. Appeal allowed.
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2009 (12) TMI 852 - ITAT MUMBAI
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... ... ..... ated that appellant s whole income is subject to TDS u/s 195(1) of the I.T. Act, 61. Not only this the appellant has obtained a certificate u/s 197 dt. 24th April, 97 for deduction of tax at a lower rate by DCIT Spl. Range-12 Mumbai. Relying on the decisions in the case of CIT v. Daimler Benz (108 ITR 961)(Bom,HC), CIT v. Madras Fertilizers Ltd. (149 ITR 703 (Madras HC) CIT vs. Rheinbraum Engineering and Wasser GMBH (Mumbai ITAT) and the order u/s 197, he requested that the interest charged by the AO be deleted. nbsp nbsp 14. I have considered submissions of the appellant counsel and following ITAT s decision and various other High Court decisions, I hold that no interest u/s 234B is chargeable in the case of the appellant. Thus this ground of appeal is allowed. 41. As the learned CIT(Appeals) has followed the order of the Tribunal, we find no infirmity in the same. 42. In the result, the appeal of the Revenue is dismissed. Order pronounced on this 24th day of December, 2009.
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2009 (12) TMI 851 - SC ORDER
Demand of service tax - Clearing and forwarding Agent - Supreme Court dismissed Revenue where High Court held that service tax is not payable of mere forwarding activity (i.e. handling and distribution of the products).
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2009 (12) TMI 850 - SC ORDER
Demand of service tax - Import of service tax - Supreme Court dismissed appeal where High Court [2008 (12) TMI 41 - BOMBAY HIGH COURT] held that Provisions of Rule 2(1)(d)(iv) can not create any tax liability which is not authorized by law. Before insertion of section 66A with effect from 18-4-2006, there was no authority to levy service tax on Import of service. Explanation below section 65(105) did not give any authority to levy service tax on import of services.
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2009 (12) TMI 848 - MADRAS HIGH COURT
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... ... ..... prescribed return. On and after April 1, 1996 an explanation has been added below Section 12(3) which requires the turnover relating to the tax assessed on the basis of the accounts of the assessee, to be disregarded, while determining the turnover on which the penalty is to be levied under Section 12(3). 8. The assessments for the assessment years 1993-94 and 1994-95 which were assessments made on the basis of the accounts, and not based on any other material and were not estimates have therefore, to be regarded as assessments made under Section 12(1) to which the penal provisions of Section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside . 4. Hence, following the Judgment referred to above, we are of the view that the order of the Joint Commissioner restoring penalty is not in consonance with the statutory provision as well as the law declared by this Court in the above said Judgment. Hence, the tax case appeal is allowed. No costs.
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2009 (12) TMI 847 - SUPREME COURT
It is clear that in this case efforts to mislead the authorities and the courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated as reprehensible.
They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or entertain the appellant's prayer for setting aside the orders passed by the Prescribed - Appeal is dismissed.
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2009 (12) TMI 846 - CESTAT MUMBAI
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... ... ..... averaged out and invoked to demand duty on the entire quantity of different non CPS by-products viz. crude glycerin, low volatile and pitch oil, although, each of the products have different character and use. It was also submitted that crude glycerin has not at all been sold by HLL and, therefore, invoking the average sale price in respect of this product is not correct. This submission has not been considered by the original authority and, therefore, we find that this matter has to be remanded to the Commissioner to consider this submission. We make it clear that no penalty is imposable under Sec 11AC of the Central Excise Act and extended period cannot be invoked in respect of this demand. In view of the discussions above, we set aside the demand of Rs. 1,73,89,261/- and remand the other two issues to the Commissioner for deciding the same afresh in the light of our observations in the order. The appeal is partly allowed by way of remand. (Pronounced in court on 7-12-2009)
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2009 (12) TMI 845 - CESTAT NEW DELHI
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... ... ..... ,36,800/- is not sustainable. 4. As regards the demand of Cenvat credit of Rs. 3684/-, the appellant had issued some debit notes and according to them, these debit notes had been issued in respect of cash discount given by the supplier. The department contends that this is not the practice and that these debit notes much have been issued on the quantity of short receipt. Other than this presumption, there is no evidence regarding short receipt of the inputs. The Cenvat credit in respect of the short receipt of inputs can be denied only if there is evidence in this regard. While in this case, it is only the presumption of the Department. In view of this, Cenvat credit demand of Rs. 3684/- is also not sustainable. 5. In view of the above discussion, the impugned order upholding the demand of Rs. 5,36,800/- and Rs. 3684/- alongwith interest and imposing penalty of equal amount is not sustainable. The same is set aside and the appeal is allowed. (Order dictated in the open Court)
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2009 (12) TMI 844 - CESTAT KOLKATA
Refund claim - whether the education cess and higher education cess which was paid along with excise duty in terms of N/N. 20/2007-C.E., dated 25-4-2007 as amended are also refundable along with excise duty paid under the said Notification? - Held that:- Notification No. 20/2007-C.E., dated 25-4-2007 is pari materia to Notification No. 56/2002 dated 14-11-2002.
Held that:- The Tribunal in the case of Jindal Drugs Ltd. & Others [2009 (8) TMI 812 - CESTAT, NEW DELHI] held that the refund of education cess and higher education cess under Notification No. 56/2002 dated 14-11-2002 is not admissible.
Appeal dismissed - decided against appellant.
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2009 (12) TMI 843 - CESTAT NEW DELHI
Valuation - determination of assessable value in respect of the imports made through different Bills of Entry - Held that: - In absence of show cause notice, no head or tail could be made out. We do not find any recorded order passes in adjudication - Finding that Revenue has not brought out any material for contradiction, we are not inclined to interfere with the order passed by the learned first Appellate Authority - appeal rejected - decided against Revenue.
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2009 (12) TMI 842 - CESTAT MUMBAI
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... ... ..... further, the amount has not where been shown as lsquo receivable rsquo and therefore formed in essential part of ldquo expenditure rdquo . It was also noted that no sales invoices or Chartered Accountants rsquo certificate had been produced to negate the presumption under section 28D. The appellants rsquo argument that they had shown refundable amount under ldquo revenue expenditure rdquo does not prove beyond an iota of doubt that the refundable amount had not been passed on further. rdquo From the above, it is clear that the appellants have debited the amount of this recurring deposit as material consumption, which forms the part of the cost of production. In that term, bar of unjust enrichment in this case is applicable and the appellants are failed to prove that the burden of payment claimed as refund has not been passed on to the consumers. 5. Accordingly, I do not find any infirmity in the impugned order, same is upheld and the appeal is rejected. (Pronounced in Court)
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