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Showing 341 to 360 of 1010 Records
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2011 (7) TMI 1061 - ALLAHABAD HIGH COURT
Whether the sale of 78 tractors in fact was made by the assessee and not by M/s. Premier Tractor Co., Mathura?
Held that:- Having heard counsel for the parties and having gone through the records, I am of the considered opinion that the findings of fact recorded by the tax authorities including the Tribunal in the facts of the case cannot be said to be perverse or based on no evidence.
No substantial question of law arises in the present revision.
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2011 (7) TMI 1060 - KARNATAKA HIGH COURT
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... ... ..... the order determining the tax liability, no penalty is liable to be paid under the other provision. That is precisely what the scheme referred to above also states. In the instant case, the duty and interest is paid even before issue of show-cause notice and 25 per cent of service tax is paid as penalty within 30 days from the date of order determining penalty. Therefore, this proviso to section 78 clearly applies to this case. Therefore the assessing authority was not justified in raising the demand for the entire amount of penalty in pursuance of his order and the Tribunal was justified in setting aside the same and holding that penalty claimed under other provisions of the Act are illegal and consequently setting aside the same. In that view of the matter, we do not see any error committed by the Tribunal in passing the impugned order. Accordingly, the substantial question of law framed is answered in favour of the assessee and against the Revenue. Appeals are dismissed.
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2011 (7) TMI 1059 - MADRAS HIGH COURT
Whether there has been a violation of principles of natural justice and the order as without jurisdiction?
Held that:- The contention of the petitioner that there has been a violation of principles of natural justice fails in view of paragraph 6 of the order, where it has been clearly held that the petitioner was given liberty to appear for more than 38 times and he failed to utilise such opportunity and therefore, he cannot be heard to say that the authority has failed to give proper opportunity and if such a plea is accepted, it would amount to mockery and abuse of judicial proceedings.
Insofar as the merits of the case challenging the order of the first respondent/appellate authority is concerned, this court is not inclined to go into the factual aspects of the case at this juncture. When there is an effective alternative remedy provided under law, the petitioner has to pursue the same. No case has been made out to invoke the extraordinary remedy under article 226 of the Constitution of India. Appeal dismissed.
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2011 (7) TMI 1058 - MADRAS HIGH COURT
Whether there is repugnancy between section 4A of the Pondicherry General Sales Tax Act and section 14(iv) and section 15 of the Central Sales Tax Act?
Held that:- As the notification issued by the Pondicherry Administration is perfectly constitutional and there is no repugnancy between the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the notification issued by virtue of section 19(1) of the Pondicherry General Sales Tax Act. Going by the definition of "total turnover" as defined under section 4A of the Pondicherry General Sales Tax Act, we have no hesitation in rejecting the plea of the petitioner.
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2011 (7) TMI 1057 - MADRAS HIGH COURT
The demand order was directed to be kept in abeyance, which means, that there was no demand against the petitioner pending in view of the order of this court, which has attained finality.
The order of demand could be revived on the failure of the petitioner, to pay the amount in instalment as directed by this court. It is not the case of the respondent, that there was any default in payment.
Consequently, in view of the order passed by this court, directing to keep the demand in abeyance, the demand of interest by the respondent, therefore, is totally misconceived, and not warranted under law. The payment under the order of this court, cannot be said to be belated, as the demand was ordered to be kept in abeyance.
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2011 (7) TMI 1056 - ALLAHABAD HIGH COURT
Whether the applicant had realised tax from the customers?
Held that:- In the present case the applicant has not realised any tax in the bills of cash memos.
Therefore, neither the provisions of section 8A(2) of the Act applies nor there is any contravention of the said provisions and, therefore, section 29A of the Act has no application.
For the foregoing discussion, in view of the fact that there is no evidence that any tax has been realized what to say, the tax in excess of the tax due, any amount deposited cannot be refunded of the amount in excess of the tax due cannot be denied under section 29A of the Act, which is made applicable under the Central Sales Tax Act. On the facts and circumstances, the assessing authority is directed to refund the amount which is in excess of the tax due. Revision dismissed.
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2011 (7) TMI 1055 - KERALA HIGH COURT
Whether the Tribunal was justified in confirming disallowance of sales returns claimed?
Held that:- It is not a case of return of medicine on expiry of shelf-life and cannot be treated as fructified sales or unfructified sales. So much so, the petitioner's contention in this regard is also not acceptable. However, we feel this is a genuine problem faced by the medicine distributors in the State which probably the State has to address. Probably, return of life expired drugs may be of insignificant quantity and considering the huge margin of profit manufacturers may not feel it worthwhile to be taken up with the Government. In any case, the petitioner/manufacturer is free to take up the matter with the Government for providing sufficient safeguard under the VAT scheme which has replaced Sales Tax Act and Rules.
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2011 (7) TMI 1054 - KARNATAKA HIGH COURT
Revision against the rectification order passed by the Karnataka Appellate Tribunal under section 25A read with section 22(6) of the Karnataka Sales Tax Act, 1957
Held that:- After looking into sections 5 and 5A and the two notifications which are the subject-matter of these proceedings, rightly came to the conclusion that when the assessee has not paid any tax under section 5A, he is not entitled to the benefit of reduction of payment of turnover tax from three per cent to one per cent and he is liable to pay turnover tax at three per cent before. The same does not call for interference.
When the earlier order did not properly comprehend as to the dispute between the parties and decided the appeal by proceeding tangentially altogether on a different point, a case of error apparent on the face of the record, is clearly made out and the KAT was justified in rectifying the mistake it had committed by rectifying the earlier order. In fact section 22(6) confers on the KAT the power to review any order passed by it under section 4 on the basis of the fact it was not before it when it pass ed the order. Therefore, when the KAT did not look into the fact which was before it and took into consideration which was not before it and passed the order, rectification of such an order is valid and legal and does not suffer from any legal infirmity which calls for interference. No merit in this revision petition.
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2011 (7) TMI 1053 - RAJASTHAN HIGH COURT
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... ... ..... the provisions of section 78(2)(b) of the Act of 1994. The Division Bench of this court in State of Rajasthan v. Tajiander Pal reported in 2003 6 Tax Update, Part 3, Page No. 84, held that these provisions are not mandatory and are directory in nature. Division Bench of this court further held that if all the requisite documents are available at the time of checking of vehicle/goods, then intention to evade tax cannot be inferred. Both the appellate authorities have recorded a concurrent finding that there was no mens rea on the part of the assessee, as all the required documents were available and tax had already been paid by the assessee, therefore intention to evade tax cannot be inferred. In these circumstances, I do not find any illegality in the concurrent finding recorded by both the appellate authorities, so as to interfere with the same in this revision petition. No question of law is involved in this revision petition and same is, accordingly, dismissed in limine.
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2011 (7) TMI 1052 - KERALA HIGH COURT
Whether the Tribunal was justified in confirming disallowance of input tax credit claimed by the assessee for the year 2005-2006 under Section 11(1) of the Kerala Value Added Tax Act?
Held that:- In order to avail the benefit, petitioner has to get permission from the officer who grants it under sub-rule (8) on being satisfied after verifying Form 25A and the accounts furnished. In the absence of compliance of statutory formalities provided in the above Rules, petitioner was rightly declined input tax credit.
So far as petitioner's contention that petitioner is entitled to input tax credit under Section 11(1) by virtue of assessment of the entire turnover for 2005-2006 at Schedule rate is concerned, is not acceptable because under Rule 12(8) there is no provision to grant input tax credit to dealers claiming benefit under Section 6(5) for any period prior to filing of Form No.25A even in cases where the dealer was denied the benefit claimed under Section 6(5) and assessed under Section 6(1) of the Act for the whole year. We, therefore, dismiss the revision case.
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2011 (7) TMI 1051 - KARNATAKA HIGH COURT
Whether the Karnataka Appellate Tribunal is justified in ordering to allow exemption towards deduction much against to the provisions of the Act or Rules?
Whether the Karnataka Appellate Tribunal is justified in transgressing the provisions of the Act or Rules made thereunder and accord benefit to the respondent-company much against to their own limited powers as submitted above?
Whether the order dated April 24, 2009 passed in STA No. 985 to 991 of 2008 is contrary to law and facts?
Held that:- Under the circumstances and in view of the admitted fact that the tax invoice did not contain the discount and its subsequent credit notes are sought to be treated as discount to claim relief is wholly unjustified. The Tribunal fell in gross error in holding to the contrary. Therefore, we are of the considered view that for the aforesaid reasons, the order of the Tribunal requires to be set aside.
The order dated April 24, 2009 passed in S.T.A.Nos. 985 to 991 of 2008 by the Karnataka Appellate Tribunal, Bangalore is set aside. Consequently, the order of the assessing authority dated February 26, 2007 stands restored.
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2011 (7) TMI 1050 - KARNATAKA HIGH COURT
Condonation of delay - Held that:- In view of the delay beyond the period of 180 days after prescribed period of 30 days for filing appeal would not have been condoned by the appellate authority and the same is illegal and once the entertainment of appeal by the appellate authority by condoning the delay is held to be illegal, ought to have dismissed the appeal. Order passed in appeal cannot be sustained, though revisional authority has gone into the merits of the case, it was unnecessary to go into the merits of the case when it was held that the appellate authority had no jurisdiction to condone the delay. The appeal was liable to be dismissed on the ground of limitation itself and that the appellant would not be caused any prejudice in further proceedings.
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2011 (7) TMI 1049 - MADRAS HIGH COURT
Whether a specific promise has been made and acting on the promise, the petitioner had acted and consequently put to hardship?
Held that:- In the case on hand, there is absolutely no material to support the contention of the writ petitioner that a specific promise has been made and acting on the promise, the petitioner had acted and consequently put to hardship. Law is well-settled that mere averments do not stand the test of proof. The contract period has expired on March 12, 2011. The writ petition has been filed on April 28, 2011, after the expiry of the period. When the terms and conditions of the contract specify a particular period during which, the parties can discharge their obligations, the petitioner has no legal or statutory right to claim the continuance or squat over the quarry site, without there being any extension of contract and any interim order permitting the petitioner to remove the quarry materials by deploying the machineries in the site would virtually amounting to extending the period of lease, without any legal or statutory basis on the determination of the contract period agreed upon by the parties. Courts cannot enlarge the period by granting interim orders.
The interim order granted on June 8, 2011 is vacated. Consequently, for the reasons stated supra, the writ petition filed after the expiry of the period is liable to be dismissed and hence dismissed.
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2011 (7) TMI 1048 - CESTAT AHMEDABAD
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... ... ..... . referred to in the work order can be held to be incidental, as has been observed in the above referred case of GVK Power and Infrastructure Limited. Admittedly, when clean water is required to be supplied, there has to be a clause as regards maintenance of the water supply plant etc. Admittedly, there is no separate contract for maintenance and repair. The essence of the contract is to supply of potable water of specified standard. As such, we agree with the learned advocate that disputed issue is covered by the Tribunal decision in the case of GVK Power and Infrastructure Limited. Accordingly, we are of the view that the appellant has been able to make out a case so as to modify our earlier order. As such, by adopting the ratio of the law declared in the case of GVK Power and Infrastructure Limited, we allow the modification application and dispense with the condition of pre-deposit of amount of ₹ 50 lakhs, as directed earlier. (Pronounced in the Court on 5-7-2011)
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2011 (7) TMI 1047 - GUJARAT HIGH COURT
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... ... ..... the credit was reversed before the issuance of show cause notice. To our mind, by virtue of decision in the case of Dharamendra Textile Processors (supra), this cannot be the sole ground for deleting the penalty. However, in view of the decision in the case of Rajasthan Spinning and Weaving Mills (supra), explaining the decision in the case of Dharamendra Textiles, other defences of the assessee shall have to be examined. In other words, if the assessee can establish that it had sufficient reasons for not paying the duty and that there was no intention to evade duty, question of penalty under Section 11AC will have to be looked from that angle. 7. In the result, the judgment of the Tribunal is set aside. The proceedings are remanded before the Tribunal for consideration of the appeal of the assessee afresh after hearing both sides, bearing in mind the observations made hereinabove and those of the Apex Court in the aforesaid cases. The appeal is disposed of accordingly.
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2011 (7) TMI 1046 - MADRAS HIGH COURT
It is true that the case of the appellant would come under the exemption notification with effect from 16 March, 1995. However the benefits of Notification No. 57/95, dated 15 March, 1995 cannot be extended to the appellant for the period from September, 1994 to January, 1995. In the absence of anything contained in the notification giving retrospective effect, the appellant cannot be heard to say that they are entitled to the benefits of the notification.
The Original Authority, Appellate Authority as well as CESTAT concluded the issue against the appellant. The case was decided with reference to the relevant classification and the exemption notification issued by the department. Since it was only by interpreting the notification, the authorities rejected the claim made by the appellant. We do not find any substantial question of law involved in this matter.
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2011 (7) TMI 1045 - GOVERNMENT OF INDIA
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... ... ..... to negate the above stipulation. 8. In view of above, Government does not find the own interpreted self pleas of the applicant that requirement of certified original Central Excise documents should be done away with, as legally admissible. The lower authorities have discussed in detail all the above grounds (including time bar issue) of the Applicant elaborately and Government is in conformity thereof. Government therefore conclude here that neither the (created) proofs of said exports were acceptable nor the co-relation to hold that the export goods were indeed those dutiable goods which were actually cleared from the factory of manufacture without payment of duty, thus leaving the lower authorities with no other option but to demand the already foregone Central Excise duty. 9. Government therefore finds the impugned Order-in-Appeal as perfectly legal and proper. 12. The Revision Applications are thus rejected for being devoid of merits. 13. So, ordered.
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2011 (7) TMI 1044 - CESTAT CHENNAI
Valuation - Demo Cars - comparable prices - demand on the ground that their price was lower than the price fixed for other cars and hence the price was not the sole consideration for sale - Held that:- The assessees have not been able to demonstrate any difference between the ‘demo cars’/’normal cars’ sold through dealers. The ‘demo cars’ are put to test and usage as desired by prospective buyers and the assessees also permit such usage to enhance the marketability of their cars - the transaction value cannot be accepted and comparable price adopted for other cars (other than ‘demo cars’) has correctly been adopted and differential duty charged thereon - demand of duty with interest upheld.
Penalty - Held that:- The penalty is not warranted as the assessees received and paid the duty on the transaction value and the demands are also within the normal period of limitation - penalty set aside.
Appeal allowed in part.
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2011 (7) TMI 1043 - GUJARAT HIGH COURT
Whether the vehicles in question would be covered within the meaning of 'motor vehicle' under section 2(28) of the Act?
Held that:- We are informed that in all these petitions, under different orders, the petitioners have paid part of the tax dues and given bank guarantees or security for the remaining amount. Accordingly, in all the categories of vehicles where we have held that they are not motor vehicles, whatever tax the State might have collected shall have to be refunded. In categories were we have concluded that the vehicles are motor vehicles, the petitioners shall have to pay the remaining tax. In case where we have permitted further inquiry, the tax liability shall be concluded only after such inquiry is over.
Subject to the above directions and clarification, all petitions are disposed of with a further direction that wherever the respondents have to refund the tax already collected, the same shall bear simple interest at the rate of 9% per annum from the date of collection till refund. Similarly, in cases where the petitioners have to pay the unpaid dues, such dues shall also carry simple interest at the rate of 9% from the date of tax liability arose till actual payment.
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2011 (7) TMI 1042 - CALCUTTA HIGH COURT
Whether the contravention of provision of law is deliberate is relevant for applying the said discretion?
Held that:-In our case there is no record as to whether the gold ornaments bore any mark. The copy of issue voucher dated May 29, 2008 annexed with the supplementary affidavit filed by the petitioner indicates sending of new ornaments after repair and polish wash in exact weight without changing the weight. On repair usually the ornaments either gain or lose the weight. On polishing the ornaments usually lose the weight. No explanation offered as to why these ornaments on being repaired and polished did not change weight. So this issue voucher is incapable to prove return of the gold ornaments. The copy of the air way-bill dated May 30, 2008 speaks of sending 1.5 kg. "gold", the declared value thereof was ₹ 80,000. This is also incapable to prove return of the gold ornaments. Therefore sending back of the gold ornaments is not proved. There are no materials before us to say that the gold ornaments were returned to the petitioner for the purpose of repairing and/or polishing. We therefore find no reason to interfere with the impugned order of penalty. The application therefore fails.
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