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Showing 61 to 80 of 685 Records
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2006 (2) TMI 667 - MADRAS HIGH COURT
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... ... ..... he BPSC will be set aside and consequently, the petitioner will be liable to pay a sum of ₹ 1,12,384/-, and it is open to the respondent to collect the same from the petitioner. 8. Learned counsel for the petitioner would further contend that the peak hour collection charges may be permitted on the instalment basis. Even though, Mr.A.Baskar, learned counsel for the respondents would oppose the same, this Court is of the considered view that the amount of peak hour charges to the extent of ₹ 1,12,384/- can be permitted to be payable by the petitioner in two equal instalments, out of which the first equal instalment shall be paid on or before 01.03.2006. The second equal instalment shall be paid on or before 01.04.2006. Failure to comply will result in the entire amount due and respondents entitled to proceed to recover. 10. With the above observations, the writ petition is disposed of. Consequently, the connected W.P.M.Ps are closed. There is no order as to costs.
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2006 (2) TMI 666 - SUPREME COURT
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... ... ..... strongly urged before us that we should decide the appeals on merits specially in view of the fact that long delay has already taken place and the land owners are being deprived of the compensation due to them on account of compulsory acquisition of their land. However keeping in view the fact that the cross appeals of the land owners are still pending in the High Court and the High Court being the Court of first appeal in such matters which ought to give its findings based on appreciation of evidence, we are persuaded to remand the matter to the High Court for decision on merits. The impugned judgment of the High court setting aside the order of the Reference Court is hereby quashed. The High court will hear and decide these appeals as well as the cross appeals of the claimants afresh in accordance with the law as early as possible. Any observation made in this judgment need not influence the judgment of the High Court on merits. The appeals are disposed of in above terms.
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2006 (2) TMI 665 - DELHI HIGH COURT
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... ... ..... on behalf of the appellant firm appeared nor any communication was received. Hence, under the circumstances I have no option but to proceed with the case.? The Petitioner has received more than sufficient indulgence. I find no error in the approach of the Appellate Authority. However, in the interest of justice, subject to the Petitioner depositing a sum of ₹ 1 lakh (Rupees one lakh) with the Prime Minister Relief Fund within a period of two weeks from today, the Appellate Authority will grant one further opportunity to the Petitioner to argue the application for waiver of pre-deposit of penalty. The Petitioner to appear before the Appellate Authority on 9th March, 2006 at 11 00 a.m. The Appellate Authority will thereafter decide the matter at its convenience. The Petitioner shall not be entitled to any adjournment. The Writ Petition as well as the pending application stand disposed of. The copy of this Order be given Dasti to both the learned counsel for the parties.
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2006 (2) TMI 664 - CESTAT NEW DELHI
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... ... ..... alties under the aforesaid Sections 75A, 76 & 77 etc. When the assessees who did not at all comply with the Service Tax Law can be given immunity provided they pay the Service Tax along with appropriate rate of interest, there is no tangible and logical reason as to why the law abiding assessee who had got himself registered more or less in time and had also started paying the Service Tax along with interest, much before the new scheme became operational, should be denied the benefit of waiver of the penal provisions referred to above for late registration, delay in filing of relevant returns etc. all of which are procedural in nature. In view of the aforesaid findings, I am inclined to waive the various penalties imposed on the said party.” In view of the above I find that the department’s appeal is liable to be dismissed and no interference is called for against Order-in-Appeal. Accordingly appeal is dismissed. (Dictated & pronounced in the Open Court.)
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2006 (2) TMI 663 - CESTAT NEW DELHI
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... ... ..... th the S.T. Law can be given immunity provided they pay the Service Tax along with appropriate rate of interest, there is no tangible and logical reason as to why the law abiding assessee who had got himself registered more or less in time and had also started paying the Service tax along with interest, much before the new scheme became operational, should be denied the benefit of waiver of the penal provisions referred to above for late registration, delay in filing of relevant returns etc. all of which are procedural in nature. In view of my aforesaid findings, I am inclined to waive the penalties imposed on the said party.” I find that the justification given by the Commissioner (Appeals) for setting aside the Order-in-Original is in conformity with the settled law and also Board’s Circular dated 23-9-2004. 4. In view of the above I do not find any merit in the appeal of the department. The same is dismissed. (Dictated & pronounced in the Open Court.)
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2006 (2) TMI 662 - CESTAT NEW DELHI
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... ... ..... ty Services & Worker’s Contractor - 2005 (188) E.L.T. 454. I may read paras 5 and 6 of the Tribunal’s Order in this connection “5. The contention of the Revenue is that the respondents are registered prior to Extra Ordinary Tax Payer Friendly Scheme and not registered this immunity scheme. Therefore, are liable to penal action. 6. I find that the service provider who registered and paid service tax during Extra Ordinary Tax Payer Friendly Scheme up to 30-10-2004, not liable to any penalty. Therefore, I find no infirmity in the finding of the Commissioner (Appeals) that the respondents to pay service tax along with the interest prior to 30-10-2004 are also not liable for penalty. In view of these circumstances, I find no merit in the appeals. Therefore, all the appeals are dismissed.” 4. Following the aforesaid order of the Tribunal, the appeal is allowed after setting aside the impugned order. (Dictated and pronounced in open Court)
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2006 (2) TMI 661 - SUPREME COURT
Voluntary retirement scheme - Entitlement to benefits of revised scale of pay - whether in view of the fact that the employees who had opted for voluntary retirement having not been excluded from the purview of Clause 3.3 of the Circular No.5/97, would be treated to be included or the benefits thereof would be available to only such employees who come within the purview of Clause 3.2 thereof ? - HELD THAT:- We have indicated hereinbefore that before floating such a scheme both the employer as also the employee take into account financial implications in relation thereto. When an invitation to offer is floated by reason of such a scheme, the employer must have carried out exercises as regard the financial implication thereof. If a large number of employees opt therefor, having regard to the financial constraints an employer may not accept offers of a number of employees and may confine the same to only a section of optees. Similarly when an employer accepts the recommendations of a Pay Revision Committee, having regard to the financial implications thereof it may accept or reject the whole or a part of it. The question of inclusion of employees who form a special class by themselves, would, thus, depend upon the object and purport thereof. The appellants herein do not fall either in clauses 3.2 or 3.3 expressly. They would be treated to be included in clause 3.2, provided they are considered at par with superannuated employee. They would be excluded if they are treated to be discharged employee.
We have noticed that admittedly thousands of employees had opted for voluntary retirement during the period in question. They indisputably form a distinct and different class. Having given our anxious consideration thereto, we are of the opinion that neither they are discharged employees nor are superannuated employees. The expression "superannuation" connotes a distinct meaning. It ordinarily means, unless otherwise provided for in the statute, that not only he reaches the age of superannuation prescribed therefor, but also becomes entitled to the retiral benefits thereof including pension. "Voluntary retirement" could have fallen within the afore-mentioned expression, provided it was so stated expressly in the scheme.
We are of the opinion that it cannot be said that the Company intended to extend the said benefits to those who had opted for voluntary retirement. Clause 3.2 of the circular includes only those who were on the rolls of the Corporation as on 1.1.1992, as also those who ceased to be in service on that date on account of superannuation or death. The appellants do not come in the said category. In view of the fact that they have not been expressly included within the purview thereof, we are of the opinion that although they have not been excluded by clause 3.3, they would be deemed to be automatically excluded.
We are, however, of the opinion that the same would not advance the case of the appellants for more than one reason. Firstly, the said office memorandum dated 5th May, 2000 cannot be considered by us as the same had been filed for the first time with the written submissions. No opportunity therefore had been given to the respondents to respond thereto. Secondly, the same is a general circular whereas the circular letter dated 24th May, 1993 issued by the Union of India deals with the particular problem wherein it has categorically been stated that the Central Government shall nor undertake the financial responsibility therefor. In any event, the said letter refers to the schemes which might have come into force after 2000. It evidently, does not refer to the 1987 Scheme vis-`-vis the revision of the pay scales.
The appeals, thus, being devoid of any merit are dismissed.
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2006 (2) TMI 660 - CESTAT MUMBAI
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... ... ..... rovides service in relation to commissioning, installation and erection of gas plant and equipment etc. Service Tax has been levied on the ground that they were rendering services of Consulting Engineers. We find that by Circular No. 79/9/2004-S.T. dated 13-5-2004, the CBEC has clarified that the charges for erection, installation and commissioning will not be covered under the category of Consulting Engineer Services during the period in dispute viz. July 1997 to October, 2001. The Circular has been relied on by the Tribunal in the case of CCE v. Gujarat Goldcoin Ceramics Ltd. 2005 (187) ELT 193 (Mum. - CESTAT) which also relied upon Tribunal’s earlier order in DGP Windsor India Ltd. v. CCE Order No. A/593/2004-WZB/C.II dated 19-7-2004 . In the light of the above circular and the above judgments, we hold that the services rendered by the appellant herein do not come within the category of Consulting Engineer and hence set aside the impugned order and allow the appeal.
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2006 (2) TMI 659 - GUJARAT HIGH COURT
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... ... ..... ee had acquired shares from the promoters' quota that by itself would not be sufficient to come to the conclusion that the acquisition was for the purpose of having control of the company. That while deciding the case of a shareholder the principal requirement for determining whether the investment of the borrowed funds was for the purpose of making or earning income has to be judged in light of the facts of the case available on record, and therefore the Tribunal has come to the conclusion, on facts, that so far as the assessee was concerned it had not made the acquisition for the purpose of obtaining control of the company but was an investment simplicitor. 6 In these circumstances, there is no infirmity in the impugned order of Tribunal allowing deduction of interest paid on borrowed funds which have been found to have direct nexus with the investment made for acquisition of shares. In the result, in absence of any substantial question of law, the appeal is dismissed.
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2006 (2) TMI 658 - ALLAHABAD HIGH COURT
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... ... ..... decided on 26th March, 2004, whereas the Tribunal decided the appeal on 9th Aug., 2005, i.e., much after the aforesaid section was inserted in the Act. The Tribunal though relied upon the judgment of the apex Court in the case of Smt. Amiya Bala Paul (supra) but failed to consider the merit and impact of the provisions of s. 142A, which was inserted with retrospective effect by Finance (No. 2) Act, 2004. 6. For the reasons stated above, the order passed by the Tribunal cannot be sustained as the appeal is required to be reconsidered by the Tribunal keeping in mind the provisions of s. 142A of the Act as well as the ratio laid down by the apex Court in the case of Smt. Amiya Bala Paul (supra). 7. We, therefore, allow the appeal and set aside the order dt. 9th Aug., 2005 passed by the Tribunal and remand the matter to the Tribunal for deciding afresh in accordance with law after affording opportunity of hearing to the parties, expeditiously, and without any unreasonable delay.
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2006 (2) TMI 657 - SC ORDER
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... ... ..... condoned. Heard. The Civil Appeal is dismissed.
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2006 (2) TMI 656 - CESTAT NEW DELHI
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... ... ..... e Revenue is that as per the provisions of Section 67 of the Finance Act, the taxable service in relation to the service provided by Security agency to the client is the gross amount charged by such agency from the client. Therefore, appellants are liable to pay service tax on the gross amount on the commission received by them. 4. We find that the provisions of Section 67 of the Finance Act are clear about the value of taxable service in relation to service provided by the security agency. The section provides that gross amount charged by such agency from the client is relevant for calculating the service tax. In these circumstances, we find no infirmity in the impugned order whereby the demand is confirmed. However, taking into consideration the facts and circumstances of the case the consolidated penalty of ₹ 50,000/- (Rupees Fifty thousand only) will meet ends of the justice, otherwise the impugned order is upheld. The appeal is disposed of as indicated above.
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2006 (2) TMI 654 - CESTAT NEW DELHI
Rejection of the refund claim - Payment of service tax earlier paid under Rule 7A of the Service Tax Rules read with Section 71A of the Finance Act, 1994 - service from goods transport operators - Valuation - HELD THAT:- The service tax paid on the basis of self-assessment as per the statutory provision was a valid collection of tax by the government and therefore, it was in no way refundable to the appellant who was liable to pay the same under the amended provisions. The period for filing of the returns was provided in Section 71A which was six months from the date on which the Finance Act, 2003 received the assent of the President, and the appellant filed the return within the period so prescribed. In a case which was covered by Section 71A read with Rule 7A the date of filing of return cannot be drawn from the provisions of Section 70. In fact, Section 71A clearly specified that the provision of Section 70 did not apply to persons referred to in the proviso to sub-section (1) of Section 68 for the filing of return.
It cannot, therefore, be accepted that the time limit for filing of return by the appellant should be computed on the basis of the provision of Sections 70 and 73 as from the date on which the half-yearly return could have been filed under Section 70 read with Rule 7 which were wholly inapplicable in case of the appellant when specific provision of Section 71A was made in the context of the persons like the appellant for filing of the return and period within which the return was to be furnished was also provided.
The contention that the appellant was not liable to pay the service tax since the recover would have been time barred on the basis of the deemed liability having been arisen earlier on the expiry of the relevant period in 1998, is, therefore, wholly misconceived. The return filed by the appellant under Section 71A on the basis of self-assessment could have been verified under Section 71 by the concerned officer in view of the specific provision made in Section 71A to the effect that Section 71 shall apply to such return.
However, even when it was not taken up for verification, it cannot be said that the service tax paid on the basis of self-assessment was not tax assessed. Since the service tax was validly paid under the liability arising under the amended provisions, particularly under Section 71A requiring the appellant to file such return, the appellants are not entitled to the refund. There was no question of issuance of any show cause notice under Section 73 for recovery, because, the appellants had paid the tax on self assessment basis under the return filed under Section 71A of the Act read with Rule 7A of the Act. None of the contentions raised on behalf of the appellant has therefore any substance.
We, find ourselves in complete agreement with the reasoning adopted and conclusions reached by the authorities below and dismiss this appeal.
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2006 (2) TMI 653 - DELHI HIGH COURT
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... ... ..... , the assessee in the present case did not offend any principle of law for this Court to ignore the statement made on its behalf. The argument that the statement made by the assessee was contrary to the law regarding the competence of a Bench of coordinate jurisdiction to ignore an order passed by a similar other Bench is in that view misplaced. The question is not whether the Tribunal could have disagreed with its earlier order. The question is whether the assessee could have given up the plea of consistency with the previous assessment, which the assessee could have jolly well done without any legal impediment whatsoever. My answer to question No. 1 is, therefore, in the negative. 17. Since brother Badar Durrez Ahmed, J. has answered question No. 1 in the affirmative, this appeal can be disposed of only after the dissent is resolved by reference to a Third Judge. It is in that view unnecessary for me at this stage to examine or answer the remaining two questions on merits.
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2006 (2) TMI 652 - ITAT DELHI
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... ... ..... greement, is in fact, an agreement to sale with the condition the consideration is paid by the assessee in the stipulated time. Hence in our considered view the above argument is in the nature of contract referred to in section 53A of the Transfer of Property Act, 1882. It is not in dispute that the assessee was allowed the possession of flats in question in part performance of the above contract the same is a transfer within the meaning of section 2(47) of the Act. Hence in our considered view the lower authorities were not justified in holding the aforesaid flats as short-term capital asset in the hands of the assessee in the assessment year under appeal. Hence we set aside the orders of both the lower authorities on this issue and direct the Assessing Officer to treat the above flats as long-term capital assets and accordingly, compute the capital gains as per law. The grounds of appeal of the assessee are allowed. 11. In the result, the appeal of the assessee is allowed.
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2006 (2) TMI 651 - KERALA HIGH COURT
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... ... ..... uced from the accounts and, therefore, correct computation of work-in-progress has to be made for arriving at the true profits. Assessing authority noticed that unless the value of the work-in-progress was included the method employed by the assessee it would not be possible to deduce the correct income. We are of the view, the assessing authority has got not only a right but a duty to make addition to the total income on account of the work-in-progress. 8. We therefore find no infirmity in the procedure adopted by the Assessing Officer. Unless and until work-in-progress is also computed it would not be possible to take note of the correct income. We are, therefore, of the view that the assessing authority is bound to adopt such method of computation as he deemed appropriate for proper determination of the true income of the assessee. We, therefore, find no infirmity in the order of the Income-tax Appellate Tribunal. Appeal, therefore, lacks merits and the same is dismissed.
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2006 (2) TMI 650 - ALLAHABAD HIGH COURT
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... ... ..... e, which includes even collecting, extracting, altering, finishing.........etc. In the said case, the unit was involved in the manufacturing of Hard-Coke from another variety of Coke, both covered under Section 14 of the Central Sales Tax Act. Division Bench of this Court held that for the taxation purposes commodities failing under the same entry would not be relevant consideration while considering an application under Section 4-A of the U.P. Sales Tax Act for the grant of exemption. 25. In the case of M/s. Pappu Sweets and Biscuits v. Commissioner of Trade Tax (supra), dealer was involved in the manufacture of toffee. Sweetmeat was one of the items, mentioned in a prohibitory list of exemption under Section 4-A of the Act. Question for consideration before the Apex Court was whether toffee was a sweetmeat. In the context of the case. Apex Court held that the toffee was not a sweetmeat. 26. For the reasons stated above, revision has no merit and is, accordingly, dismissed.
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2006 (2) TMI 649 - MADRAS HIGH COURT
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... ... ..... amount of the interest paid in respect of capital borrowed for the purposes of the business or profession." From a very reading of the above clause, it is clear that three conditions are required to be specified to enable the assessee to claim deduction in respect of interest on borrowed money, which are as follows 1. There should be borrowal of money by the assessee; 2. It must be for the purpose of business; and 3. The interest must be paid on the borrowed money. In this case, both the authorities below had given a concurrent finding that the assessee borrowed money for the purpose of expansion of the projects and paid interest on the borrowed money. Hence, the claim of the assessee under s. 36(1)(iii) of the Act is in conformity with law. 6. In view of the foregoing conclusions, we do not find any error or infirmity in the order of the Tribunal and no substantial questions of law arise for consideration of this Court. Hence, we dismiss the above tax cases. No costs.
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2006 (2) TMI 648 - ITAT BANGALORE
Liability to deduct tax - Payment for Liaison with legal and financial advisors - Non-resident - Royalty Or fee for technical service - HELD THAT:- It is clear that such payment is purely for services. Since payment for technical services is not covered under DTAA, hence no TDS is required as provisions of DTAA will prevail as per decision of Supreme Court in the case of Union of India v. Azadi Bachao Andolan [2003 (10) TMI 5 - SUPREME COURT]. Such payments in no way can be considered as royalty as for rendering such service one is not imparting information concerning technical, industrial, commercial or scientific knowledge, experience or skill.
We are not in a position to decide the issue in absence of details of information as received by the appellant, whether information provided is secret based on experience or skill ? Another aspect which is to be considered as to whether the consideration paid is for information which is of perpetual or extended use. If the non-resident company is providing support on the basis of facts and information collected by appellant and thereby suggesting ways and means with the aim of providing support to develop specified areas relevant to marketing and financial areas, then - consideration paid may not be termed as royalty. Hence on the deduction of tax at source in respect of payment for following item the matter Is restored back on the file of learned ITO (TDS).
In the result the appeal is treated as partly allowed.
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2006 (2) TMI 647 - SC ORDER
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... ... ..... ukumaran, Adv., Mr. A. Deb Kumaran, Adv., Mr. Kulbhusan Arora, Adv. And Mr. K. Rajeev,Adv. ORDER The delay in filing the special leave petition is condoned. Leave granted.
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