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Case Laws
Showing 141 to 160 of 623 Records
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2007 (1) TMI 511 - KERALA HIGH COURT
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... ... ..... ries Pvt. Ltd. v. Sales Tax Officer, First Circle, Mattancherry 2001 122 STC 410 (SC), Parakkattil Aleyamma v. Sales Tax Officer 1993 91 STC 518 (Ker) 1993 1 KLT 810, Fashion Jewellers and Exporters v. Sales Tax Officer 2005 3 KLT 353 and the judgments in O.P. Nos. 1860 of 1998 and 17412 of 2000. None of those decisions throw any light on the issue involved in this original petition since they do not relate to charging of interest on delayed payment of a tax levied under one Act by resort to provision for interest in another Act. The result of the above discussion is that surcharge being nothing but sales tax itself, there is no jurisdictional defect in the respondents demanding interest on the surcharge by resort to section 23(3) of the Kerala General Sales Tax Act which obviously was the intention of the Legislature while enacting the Kerala Surcharge on Taxes Act, 1957. In that view, I do not find any merit in the original petition and, accordingly, the same is dismissed.
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2007 (1) TMI 510 - BOMBAY HIGH COURT
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... ... ..... 978 41 STC 337 (Bom), the proper course was to challenge the said decisions before the High Court, instead of amending rule 41-C retrospectively and take away the vested right accrued to the manufactures. In this view of the matter, we are clearly of the view that the State has failed to establish that section 19 of the 1990 Act is clarificatory in nature and the State has failed to establish overriding public interest or equity so as to deprive the vested right accrued to the manufacturers under rule 41-C. In the result, petition succeeds. It is declared that section 19 of the 1990 Act is unreasonable, invalid and unconstitutional. In the proceedings pending before the authorities below, it will be open to the petitioners to establish the quantity of iron and steel used by them in the manufacture of iron and steel scrap and accordingly avail the benefit of drawback/set-off, etc., under rule 41-C. The writ petition is disposed of in the above terms with no order as to costs.
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2007 (1) TMI 509 - KERALA HIGH COURT
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... ... ..... ansmission simultaneously. A video conferencing terminal must have a few basic components like a camera, a video display, a microphone and speakers. In addition to these, there is also a codec, a user interface, a computer system to run on and a network connection etc. All the abovementioned items are electronically related digital online system and HSN Code 8517.50 relates only to the electrically related equipments . HSN Code 8517.50 is assigned to entry 69(29)(g) which is purely electrically related equipments , but video conferencing equipments are electronically related digital on line system which will never come under HSN 8517.50. Therefore, it would fall only under NR category attracting tax at the rate of 12.5 per cent as provided under section 6(1)(d) of the Act. Under such circumstance, we find no error in the clarificatory orders passed by the Commissioner. Questions of law are answered against the assessee. Appeal lacks merits and the same would stand dismissed.
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2007 (1) TMI 508 - KERALA HIGH COURT
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... ... ..... rd Schedule to the Act and hence, it is exigible to tax at 12.5 per cent under section 6(1)(d) of the Act read with the residuary entry 103 of S.R.O. No. 82 of 2006. Item No. 15 in annexure I, puttu mix, namely, health puttu mix, as stated in annexure II, is not rice flour, which is commonly known as puttu podi. The ingredients of the commodity as stated in annexure I are the following Sampa wheat, brown rice, njawara rice, maize, raggi, barley, sago, green gram, bengal gram, badam, cashewnut, brahmi, thulasi, carrot, cocoa, gardamom, rice bran, soyabeans. Hence, the commodity cannot fall under entry 48(4) of the Third Schedule to the Act as claimed. It is liable to tax at the rate of 12.5 per cent under section 6(1)(d) of the Act read with the residuary entry 103 of S.R.O. No. 82 of 2006. In the result, this appeal is partly allowed as indicated above, holding that items 1(b), 1(c), 1(d), 1(e), and items 3, 4, 5 and 6 in annexure I are exigible to tax at four per cent only.
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2007 (1) TMI 507 - JHARKHAND HIGH COURT
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... ... ..... ious aspects, upholding the enforceability of doctrine of promissory/ equitable estoppel when it is intended to even deny legitimate tax deferment benefit under section 95(3) of the VAT Act. We, therefore, quash the impugned notifications S.Os. 201 and 202 both dated March 30, 2006 as also order dated May 5, 2006 rejecting claim for deferment of tax under section 95(3) of the VAT Act, and as a natural corollary the petitioners will be and are entitled to the benefit of deferment of tax in terms of section 95(3) of the VAT Act. We, thus, allow these writ petitions and direct the respondent-State to allow the benefit of deferment of tax to the petitioners for the remaining period under the 1995 Industrial Policy read with the notifications S.Os. 478, 479 and 481 all dated December 22, 1995 and S.Os. 57 and 58 both dated March 2, 2000, in accordance with the provisions of section 95(3) of the VAT Act. However, in the facts and circumstances, there shall be no order as to costs.
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2007 (1) TMI 506 - CESTAT NEW DELHI
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... ... ..... re of consulting service and shall bear service tax. The submission of the learned SDR is that in the present case, the entire relationship is that of consulting engineer. From a perusal of the agreement between the parties we are of the view that the relationship is one of licensor and licensee for the transfer of intellectual property rights and the decisions in the cases of Bajaj 2004 175 ELT 305 (Tri.-Mumbai) and Yamaha 2005 186 ELT 161 (Tri.-Del.) appropriately would be applicable. Even if a portion of the service has the character of consulting, quantification of that component is not available in the order. Therefore, even allocating a part of the demand towards consultation is not possible. That apart, if the decisions of the Tribunal are in conflict, stay would be warranted, since the legal position is not clear. In view of what is noted above, the stay application is allowed and requirement for pre-deposit waived and recovery stayed till the disposal of the appeal.
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2007 (1) TMI 505 - CESTAT MUMBAI
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... ... ..... ed this contention. Learned counsel for the assessee relied upon the following decisions of the Tribunal where enhanced penalty is set aside. (i) Tribunal Order No. A/332-333/III/SMC/WZB/06 dated February 6, 2006 in the case between Sharad Jambhekar and Associates v. Commissioner of Central Excise, Nasik. (ii) Tribunal Order No. A/320/IV/SMC/WZB/06 dated February 15, 2006 in the case between Commissioner of Central Excise, Nashik v. Shri Ashish Patil. (iii) Dewal Tours and Travels v. CCE, Jaipur-II 2006 TIOL 470 (CESTAT-Del). (iv) CCE, Bhopal v. Bhojpur Club 2006 TIOL 486 (CESTAT-Del). I have considered contentions of both sides. Having regard to the payment of original penalty of Rs. 8,390 and Rs. 3,500 and principles laid down in the aforesaid decisions, I am of the view that the assessee has got a strong prima facie case, as such pre-deposit is waived and stay is granted from its recovery pending disposal of the appeal. Application is allowed. List the appeal in its turn.
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2007 (1) TMI 504 - CESTAT NEW DELHI
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... ... ..... show cause notice was issued. Thereafter, the appellant deposited tax in pursuance of the show cause notice. Hence, Voluntary Disclosure Scheme cannot be applicable in this case. He also submits that the Commissioner (Appeals) has also reduced the penalty and taken a lenient view and, therefore, the appeal should be rejected. After hearing both sides and on perusal of the record, I find that in this case, the appellant deposited tax on October 21, 2004. Penalty was imposed by the adjudicating authority as proposed in the show cause notice. Hence, I am of the view that Voluntary Disclosure Scheme dated September 23, 2004 as referred to by the learned advocate is not applicable herein and the penalty was rightly imposed by the lower authorities. I also find that the Commissioner (Appeals) has taken a lenient view in respect of imposition of penalty. As such, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal is rejected.
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2007 (1) TMI 503 - CESTAT CHENNAI
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... ... ..... nies on the strength of the terms and conditions of the agreements. They ought to have furnished these agreements to the department at least at the time when, upon receipt of the returns, the assessing authorities were into verification of the records. This did not happen. Apparently, the conduct of the appellants can be termed suppression of the kind envisaged under section 73 of the Finance Act, 1994. We have not found prima facie case for the appellants either on merits or on limitation. They should deposit a reasonable part of the tax demanded by the Commissioner. At this stage, learned counsel, under instructions, volunteers to deposit 10 per cent of the tax demanded. Learned SDR would like to have the entire amount of tax deposited. We think that neither side is reasonable in this approach. We fix the amount to be deposited at Rs. 15,00,000 (rupees fifteen lakhs only), which shall be deposited by the appellants within four weeks. Report compliance on February 26, 2007.
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2007 (1) TMI 502 - KARNATAKA HIGH COURT
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... ... ..... ction to treat the transaction as a sale is a provision in consonance with the object of the Act and challenge to the validity of the provisions is rejected and consequently, writ petition is rejected. Though Sri Murthy, learned counsel for the petitioner, urges that the petition should be examined at least for interpreting the provisions of section 6A of the Act, it is not necessary for this court to look into the matter unless the matter comes up for examination in a proper manner and then brought to this court. A question of interpretation does not arise at this stage as this court does not examine the assessment order for the purpose of interpreting the provision when the matter can go through various statutory authorities. Prayer for declaration or prayer for interpreting the provision in any particular manner is also rejected. However, it is open to the petitioner to pursue such other remedies as are available to it in law in respect of action taken by the respondents.
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2007 (1) TMI 501 - KARNATAKA HIGH COURT
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... ... ..... tion of the amount of Rs. 55,000 I find rather difficult to be acceded, notwithstanding the vehement submissions made on behalf of the respondents by the learned Additional Government Advocate. Consequently, the notice bearing No. CTO/CR/TK(GCE)-32/2003-04, dated September 8, 2005 (copy at annexure K) issued by the third respondent as also the order dated July 25, 2003 said to have been passed by the second respondent based on which retention of the amount is justified are both quashed by issue of a writ of certiorari. Writ petition is allowed. Rule made absolute. The respondents are directed to refund the amount of Rs. 55,000 to the petitioner which they have retained and are unable to support it with reference to any statutory provision, within four weeks from the date of receipt of a copy of this order. However, liberty granted to the respondents to take such action as is permitted in law if the petitioner should have committed any infraction of the provisions of the Act.
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2007 (1) TMI 500 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ve been passed by a Bench consisting of Shri D.R. Yadav and Mrs. Amarjeet Sachdeva, Members, Haryana Tax Tribunal. Mrs. Amarjeet Sachdeva was the revisional authority and had dealt with the petitioner 39 s file and passed interim orders, at the revisional stage. Learned Additional Advocate-General, Haryana concedes that the impugned order could not have been passed by a Bench consisting of a revisional authority. As one of the Members of the Tribunal had exercised jurisdiction as a revisional authority as regards these cases, and as rightly conceded by the learned Additional Advocate-General, Haryana, propriety demands that Mrs. Amarjeet Sachdeva should have recused herself from the Bench. We, therefore, set aside the impugned order, dated March 6, 2006 (annexure P 9), with a direction to the Haryana Tax Tribunal to hear the matter afresh, taking into consideration the preliminary objections, raised by the petitioner as well. The writ petitions stand disposed of accordingly.
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2007 (1) TMI 499 - CESTAT MUMBAI
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... ... ..... nd paid on any excisable goods under the Act or the Rules, from the buyers representing in any as duty of Excise, are required to pay the said amount to the credit of the Central Government. Both the requirements for attracting the provisions of Section 11D are not satisfied in case of the Appellants. Firstly they are not liable to pay Service Tax on the said non-taxable services under the Act, as the services provided by them do not fall under the category of taxable services. Once these are not under the gamit of Service Tax the question of satisfying requirement of Section 11D does not arise, as it cannot be said that they have collected any amount in excess of the tax assessed and paid. 7. The wordings of Section 11D are clear and the same cannot be applied unless both the conditions mentioned therein as satisfied as held by the Commissioner (A). Therefore, there is no reason to interfere with the orders of the Commissioner (A). 8. Appeals of the Department are rejected.
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2007 (1) TMI 498 - SUPREME COURT
Whether Jala Nigam could be allowed to raise the contention, on the facts and circumstances of this case, that Clause 29 of the Contract(Agreement) is not an arbitration clause and due to want of jurisdiction of the arbitral tribunal to adjudicate upon the claims made by the contractor (respondent no.1), Award dated 25.6.2000 published on 14.11.2000 was a nullity?
Held that:- The plea of "no arbitration clause" was not raised in the written statement filed by Jala Nigam before the Arbitrator. The said plea was not advanced before the civil court in Arbitration Case No.1 of 2001. On the contrary, both the courts below on facts have found that Jala Nigam had consented to the arbitration of the disputes by the Chief Engineer. Jala Nigam had participated in the arbitration proceedings. It submitted itself to the authority of the Arbitrator.
The Arbitrator has awarded Rs.42,000/- per day for the period 1.2.94 to 17.12.94 and from 1.6.95 to 31.12.95 excluding the period 18.12.94 to 31.5.95 and from 1.1.96 to 12.11.96. On this basis the idling charges awarded by the Arbitrator was arrived at Rs.1.47 crores. It is contended that the contractor has not led any evidence to show the existence of the machinery at site and, therefore, he was not entitled to idling charges. We are of the view that the Award of the Arbitrator is fair and equitable. He has excluded certain periods from calculations, as indicated above. We have examined the records. The delay took place on account of non-supply of Drawings and Designs and in the meantime the establishment of the contractor stood standstill. We suggested to the learned counsel for the respondent (contractor) for reduction of the awarded amount under this Head from Rs.1.47 crores to Rs.1 crore. Learned counsel for the respondent fairly accepted our suggestion. We suggested the aforestated figure keeping in mind the longstanding dispute between the parties. Therefore, the amount awarded under this Head shall stand reduced from Rs.1.47 crores to Rs.1 crore. Appeal stands allowed to the extent indicated above
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2007 (1) TMI 497 - CESTAT KOLKATA
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... ... ..... recover demand from the Respondent. 4. emsp Ld. Commissioner (Appeals) having passed an elaborate order, relying on Board s Circular, has concluded that the statute being in infancy stage at the relevant time, no penalty was leviable on the Respondent and being levied against the Respondent was for differential Service tax amount, not permissible under law. 5. emsp No clear cut case was brought out by revenue for considering that reimbursement of expenses should form part of taxable service at this stage. No room is left for appreciation of their case prima facie. In such circumstances, stay of operation of the first appellate order would cause hardship to the other side. However, considering recurring effect of the matter in question, appeal shall be fixed for hearing on 7th February, 2007. On such date, both shall be present with their relevant documents for dismissal, of the matter. Till then, first appellate order shall prevail. Dictated and pronounced in the open Court.
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2007 (1) TMI 496 - HIGH COURT OF RAJASTHAN
Addition u/s 68 - Cash Credit - found in the books of account - Addition made to the extent of 1/4th of depreciation and Rs. 1,000 on account of expenditure on books and periodicals. - HELD THAT:- In the facts and circumstances where in the absence of proper material if the AO has resorted to estimate and on estimated basis the Tribunal has sustained the certain amount of claim only, it cannot be said to be that disallowance of the claim is founded on no material or irrelevant consideration. Therefore, the finding on that account does not call for interference.
Cash credits - HELD THAT:- The fact that the explanation furnished by Sri Devendra Sankhla about his source of such advancement has not been accepted by the Revenue authority cannot lead to any presumption that the source of such advancement by Sri Devendra Sankhla emanated from the assessee. Therefore, addition of Rs. 16,000 in the income of assessee as cash credit in the name of Sri Devendra Sankhla cannot be sustained. Such addition of income of assessee has to be deleted from the income of assesse.
Since, in the present case the AO has definitely referred to non-furnishing of complete address of the creditor and that has hampered the inquiry into the correctness of the advance made by the alleged creditor or his existence, the finding reached by the AO about .unsatisfactory state of explanation furnished by the assessee about having received Rs. 16,000 from Ramulal and consequential addition of such amount as an income from undisclosed sources of assessee for the assessment year in question is a finding of facts founded on relevant consideration. This finding has been successfully sustained by CIT(A) and the Tribunal and it does not give rise to substantial question of law to be examined for reappreciation of the entire evidence in this regard and to reach at a different conclusion. Accordingly, the addition of Rs. 16,000 as unexplained cash credit from Ramulal does not call for interference.
Accordingly this appeal is partly allowed to the extent the addition made on account of unexplained cash credit received from Sri Devendra Sankhla are to be deleted. Other additions challenged by the assessee in this appeal are sustained.
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2007 (1) TMI 495 - CESTAT CHENNAI
Refund of service tax paid - tax paid under the head Management Consultancy Service - non-banking financing company - Joint Venture agreement - HELD THAT:- We find substance in the view taken by the lower appellate authority that the work done by the respondents was in the nature of “in-house services” rendered by them as partner of the JV company.
We have enumerated the services rendered by the respondents. None of that has been shown to be a service rendered directly or indirectly in connection with the management of FISAF. Again, none of these services has been shown to involve advice, consultancy, or technical assistance relating to conceptualization, devising, development, modification, rectification or upgradation of any working system of the JV company. There is substance in the submission of ld. consultant that some of the services in question are covered by the definition of “Business Auxiliary Services”, which came to be introduced for levy of service tax w.e.f. 1-7-2003. The services in question were rendered in Oct 1999.
The definition of “Management Consultancy” has continued to be same even after introduction of “Business Auxiliary Services” for levy of service tax. It would, therefore, mean that a service appropriately classifiable as “Business Auxiliary Service” cannot fall within the ambit of “Management Consultancy”. On this point, the respondents can legitimately claim support from the Tribunal’s decision in Glaxo Smithkline Pharmaceuticals [2005 (7) TMI 25 - CESTAT, MUMBAI].
The appellant has not succeeded in rebutting any of the points made in the impugned order. In the result, the appeal gets dismissed.
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2007 (1) TMI 494 - ITAT PUNE
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... ... ..... rsquo s delay and so on hellip In sum and substance, these are only two modes of realising sale consideration, the object being to realise the sale proceeds at the earliest and without delay. The purchaser pays a higher sale price if it delays payment of the sale proceeds. In other words, this is a converse situation to offering a cash discount. Thus, in principle, in reality, the transaction remains the same and there is no distinction as to the source hellip hellip While computing the special deduction under section 80-I, interest received from trade debtors towards late payment of sale consideration is to be included in the profits of the industrial undertakings. rdquo A similar view was taken by the Madras High Court in the case of CIT v. Indo Matsushita Carbon Co. Ltd. 2006 286 ITR 201. We respectfully follow the precedents and allow this ground. In the result, the appeal filed by the assessee is partly allowed. The judgment was announced in the court on January 5, 2007.
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2007 (1) TMI 493 - ITAT PUNE
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... ... ..... bed depreciation because he has opted to compute the transport business income under section 44AE of the Income-tax Act in the absence of maintenance of books of account. The Revenue has also relied upon a decision of the hon rsquo ble Supreme Court in the case of CIT v. Jaipuria China Clay Mines Pvt. Ltd. 1966 59 ITR 555, for the proposition as held by the hon rsquo ble court that the unabsorbed depreciation of past years had to be added to depreciation of the current year and the aggregate unabsorbed and current year rsquo s depreciation had to be deducted from the total income of the previous year. In view of the foregoing discussion, in the light of the interpretation of the applicable provision of the statute, we hereby reverse the finding of the learned Commissioner of Income-tax (Appeals) and confirm the action of the Assessing Officer. Grounds of the Revenue are allowed. In the result, the Revenue rsquo s appeal is allowed. The judgment pronounced on January 25, 2007.
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2007 (1) TMI 492 - ITAT AHMEDABAD
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... ... ..... xtant law, and which would, therefore, require allowance of depreciation at the correct amount(s) in the hands of both, including adjudication on the correct amount of WDV in the assessee rsquo s hands, even as we are in agreement with the Assessing Officer that the carry forward of depreciation under section 32(2) could only be in the hands of the partnership firm. Giving rise to the question, that remains unaddressed by him, that, in view thereof, whether the WDV in the assessee rsquo s hands could be after excluding depreciation that stands held as not eligible for carry forward in terms of section 32(2). We, therefore, remit this matter, for a decision in accordance with law, to the file of the Assessing Officer, after hearing the assessee in the matter, per a speaking order. We decide accordingly, and the assessee gets partial relief. In the result, the assessee rsquo s appeal is partly allowed for statistical purposes. Order pronounced in open court on January 12, 2007.
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