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Showing 361 to 380 of 934 Records
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2013 (2) TMI 581
Penalty u/s 271(1)(c) - assessee sold stock options received as a part of employment declaring in his return as long term capital gains whereas revenue treated it as short term capital gains - Held that:- Question whether the sale of the stock options would result in long term capital gains or short term gains was not very clear at the time when the assessee filed his return for the assessment year 2002-03. In fact the view taken by the AO in the quantum proceedings had been reversed by the CIT (Appeals) in the appeal filed by the assessee. The view taken by the CIT(Appeals) was ultimately reversed by the Tribunal and the view of the assessing officer was upheld in the quantum proceedings. This, in itself, is indicative of the fact that the issue was not very clear-cut. That being the position, the case of the assessee cannot be brought within the provisions of section 271(1)(c) of the said Act.
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2013 (2) TMI 580
Condoning the delay - delay of 98 days in filing appeal - rectification of appeal submitted - The case of the assessee is that the assessee sent the copy of the order of the CIT(A) in the month of July 2011 to the same CAs and they have not acted upon - Held that:- Assessee does not have evidence to suggest that the CAs accepted the allegation of negligence as CAs have not filed an affidavit owning the responsibility of the stated negligence. Similarly, there is no evidence placed to suggest that the CAs have given advice to exhaust first the remedy available u/s 154 of the Act. The assessee is not transparent in this case as it is not known why the assessee continued to rely on the CAs, who are declared negligent as evident from the experience with the appeal before CIT (A). In the condonation petition before the CIT(A), the assessee alleged that M/s Anil Thakarar & Co and M/s. K. Bharat & Co are negligent. In that case, why the assessee continued to depend on such negligent CAs or why assessee failed to pursue with the same CAs to file the present appeal before the Tribunal in time. The assessee is himself responsible for the delay in filing appeal, thus the explanation given by the assessee is not substantiated and the assessee does not have adequate/sufficient ground for condonation of delay in filing appeal before us as CAs-centric reasons given are not substantiated - against assessee.
Penalty u/s 271(1)(c) - disallowed the claim bad debts stating that the assessee failed to fulfill the conditions envisaged u/s 36(1) - CIT(A) deleted the levy - Held that:- It is an undisputed fact that the assessee disclosed bad debts in the return filed before the Assessing Authority. The AO disallowed the claim hold that the said debts have not become bad and are not evidenced as irrecoverable debts. This line of argument is not sustainable in law in view of plethora of judgments in force as assessee is no longer under obligation to prove that the debts in question are bad and irrecoverable. Further, there is no bar on the assessee in writing off the bad debts of the year as allowable expenditure when the corresponding credits are showing in the accounts of the year. It is for the businessmen to manage his affairs and accounts in such a way which are suited to his business - the allegation of concealment does not have strength to stand - order of the CIT (A) deleing the penalty should not call any interference - in favour of assessee.
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2013 (2) TMI 579
Prohibition u/s.13 (1)(d)(iii) - Deposit of ₹ 55 lakhs with Bharati Vidyapeeth and there is investment of ₹ 5 lakhs in shares which is strictly prohibited u/s.13 (1)(d)(iii) - assessee was established through a deed of trust - Held that:- As decided in the case of Alarippu [2000 (5) TMI 30 - DELHI HIGH COURT] that a loan given by one charitable trust to another with similar object cannot be treated as an investment but an application of income. The words "investment", "deposit", and "loan" have different meanings. Also see Sarladevi Sarabhai Trust [1988 (3) TMI 53 - GUJARAT HIGH COURT] wherein held that if the trust makes an investment in the course of attaining its objectives, that investment is an application of income and it cannot be considered to be violative of section 11(5).
As per the settled legal position, which has been laid down in numerous decisions, it is clear that any amount which is laid out by the charitable trust or institution for achieving its charitable object constitutes an application of income to charitable purposes irrespective of whether the amount in question has been laid out irretrievably or whether the amount continued to belong to the charitable trust or the institution or it is recoverable by it.
Since in the instant case the assessee trust had advanced loan of ₹ 55 lakhs to Bharati Vidyapeeth, another charitable trust also engaged in educational activity, therefore, in view of the decisions cited above, granting of such loan by the assessee trust to another trust is neither a deposit nor an investment and therefore there is no violation of provisions of section 13(1)(d) of the I.T. Act - against revenue.
Denial of exemption u/s.11 on account of belated filing of Form No.10 by the assessee trust - Held that:- The assessee could not envisaged that application for registration under s.10(23C)(vi) would be delayed. Thus, the assessee was required to make alternate claim under ss.11 and 12 of the Act. As held in the case of Mayur Foundation (2004 (12) TMI 48 - GUJARAT HIGH COURT), assessment proceedings are complete when appeal against order of assessment is decided by the Tribunal. Various courts have time and again held that though filing of Form No.10 is mandatory to claim exemption under ss. 11 and 12 the same can be filed at any time during the pendency of assessment proceedings. If so filed the benefit of accumulation of income for charitable purpose cannot be denied. Do not agree with the findings of the CIT(A) that the assessee was not permitted to file Form No.10 in the reassessment proceedings and that the decision of Nagpur Hotel Owners Association [2000 (12) TMI 99 - SUPREME COURT] is not applicable in the facts of the present case wherein held that the assessee by filing Form No.10 along with revised return and before completion of assessment has duly complied with requirements of section 11(2) and was therefore entitled to benefit of section 11 - in favour of assessee.
Purchase of shares of 2 cooperative societies - violation of provisions of section 13(1)(d) r.w.s.11(5) and therefore the assessee trust is not entitled to exemption u/s.11 - Held that:- Since in the instant case the assessee, on being pointed out by the AO that there is violation of provisions of section 11(5), has liquidated the shares, therefore, respectfully following the decision of the Honble Delhi High Court in the case of Agrim Charan Foundation (2001 (8) TMI 78 - DELHI HIGH COURT) wherein the assessee had kept deposits with two concerns in violation of section 11(5) however, the same were withdrawn when the A.O. had pointed out the default committed by the assessee & H.C. held that the assessee was entitled to exemption u/s.11 and upheld the order of Tribunal - the benefit of exemption u/s.11 cannot be denied to the assessee in the present case - in favour of assessee.
Violation of provisions of section 11(5) on account of loan given to Sonhira Sakhar Karkhana Ltd., a cooperative society - Held that:- As loan is neither an investment nor a deposit in the nature of an investment as held above therefore there is no violation of provisions of section 11(5) r.w.s.13(1)(d).
Treating the donations received through issue of coupons as income u/s.68 as against towards corpus of the trust as claimed by the assessee - Held that:- Since the coupon donation receipts do not contain the complete address of the donors, the name of the recipient on behalf of the Trust and there is no written direction by the donor to treat the donation towards corpus of the Trust, therefore, we are of the considered opinion that such donations cannot be considered as corpus donations. However, the alternate submission of the the assessee that the same should be considered as revenue receipts is acceptable. Since there is no violation of provisions of section 11(5) r.w.s. 13(1)(d) and also held that exemption u/s.11 cannot be denied for late filing of Form No.10, therefore, since the donations are treated as revenue receipts, it does not make any difference. Exemption u/s.11 is allowable on such donations. The grounds by the assessee are decided accordingly.
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2013 (2) TMI 578
Addition u/s 50C - area is 13,500 sqy or 15,311 sqy - Held that:- Admittedly, in this case the assessee made a rectification deed correcting the area mentioned therein in the sale deed. The assessee also explained the reasons for delay in executing the rectification deed that the assessee is an old lady of 86 years old and she is not aware of the income-tax law. On behalf of the assessee, assessees son has been appearing before the Revenue authorities. The mistake mentioned in the area in the sale deed was found at a later stage and on this count rectification deed was executed on 11.12.2009 and registered on 16.12.2009. Thus seen from the contents of the Remand Report, AO confirmed that the area transferred is 13,500 sqy instead of 15,311 sqy. The only reason for not accepting the area transferred at 13,500 sqy by the CIT(A) is that the rectification deed was belatedly executed. Thus as the assessee explained the reasons for executing the Rectification Deed belatedly the area transferred is only 13500 sqy. Being so considering the area at 13,500 sqy as per Rectification Deed which is duly registered with the Sub-Registrar and in the circumstances the value mentioned by the assessee for transferring of 13500 sqy is not less as compared to the value adopted by the State authorities for stamp duty valuation, the addition cannot be sustained on this count. Accordingly, this addition is deleted.
Addition towards indexed cost of acquisition - AO took the SRO value as on 1.4.1981 at Rs. 25 per sqy and on the other hand, the assessee submitted that a valuation report from a private valuer stating that the cost of land as on 1.4.1981 was Rs. 300 per sqy - Held that:- The value is to be considered at Rs. 300 per sqy which is based on the Registered Valuer report which is very reasonable as compared to the value of the property as on the date of sale at Rs. 11,000 per sqy. Considering the Registered Valuer report and by applying the reverse indexation method, the value is to be considered at Rs. 300 per sqy as on 1.4.1981 is very reasonable, thus agreeing with the assessee.
Addition towards compensation paid with whom agreement for sale was entered into by the assessee in the year 1993 which was not honoured - Held that:- AO has no grievance for allowability of Rs. 1.72 crores and the only objection is with regard to Rs. 64 lakhs out of Rs. 2.36 crores. Accordingly this payment is genuine to the extent incurred by the assessee in relation to the transfer of property. Accordingly, this ground is partly allowed.
Addition towards compensation paid to Sri B. Rajendra Prasad - Held that:- AO accepted the payment of Rs. 15 lakhs as genuinely incurred for the purpose of transfer of property. However, he has not accepted payment of Rs. 13 lakhs. Thus when the AO himself accepted the payment of Rs. 15 lakhs as genuine, there is no reason to disallow the same and the same is accepted and allowed. This ground is partly allowed.
Municipal taxes paid by the assessee on yearly basis cannot be considered as a cost of acquisition or cost of improvement allowed while determining the capital gain. On the other hand, if it is incurred as a betterment/development charges which is a onetime payment, that is to be considered as part of cost of acquisition of the capital asset and the same has to be considered while computing the capital gain. This issue is remitted back to the file of the Assessing Officer to decide the same accordingly.
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2013 (2) TMI 577
Registration granted u/s 12AA cancelled - assessee is earning huge profits by carrying various activities including the purchase of land at nominal cost, then level and clear it, cut into plots and sell the plots at much higher prices and earning huge profit and also charging fees and fines from the sale of forms, land enhancement fee, building plan fees, road cutting fees, transfer fee, fine and penalties and non construction charges - Held that:- The charitable purpose include relief to the poor, education, medical relief and advancement of any other object of general public utility.
As in the present case, the assessee-trust is carrying on various activities in the nature of trade, commerce or business and rendering its services for the purpose of trade, commerce and business, the assessee-trust is charging huge fees. No doubt, the assessee has given some explanation for charging fees for the afore-mentioned activities by stating that the assessee-trust is charging fees as per rules framed by the Punjab Local Bodies Govt. which is clearly the admission by the assessee-trust that the assessee-trust is doing activities not for charitable purpose but for business purpose only. No doubt, these penalties charged by the assessee-trust are in the nature of compensatory but that is not permissible for the charitable institution. FAA has rightly held that the land of the assessee trust is in the same category of other real estate products available in the market offered by the private colonizers and real estate agents.
It is a matter of record that the assessee-trust sells off all these plots by organizing a public auction, where through the bidding process and the competition generated in it, the prices of their land keep escalating and finally, the land is sold off to the highest bidder. The surplus income which is generated through the sale of land is again used for buying more land, developing it and selling it the same way, thereby generating more profit. On the facts and circumstances the assessee trust is not merely a mediator in buying and selling of land to the general public. Rather it operates in a business oriented way on the well known principles of profit generation. Therefore, the activities of the assessee trust clearly constitute activities in the nature of trade, commerce or business because no plots are reserved for any socio-economically lower society, there is no element of donation or support to any cause - CIT(A) has rightly cancelled the registration granted to the assessee-trust w.e.f. 12.06.2003 in view of the amended provision of section 12AA(3) on fully satisfied that the activities of the assessee-trust are not genuine and not being carried out in accordance with the objects of the assessee-trust - against assessee.
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2013 (2) TMI 576
Addition on the basis of cheques and hundis found during search Cheques and hundis were found in the residence of assessee in the name of one Shri Rakesh N.Patel AO Considered that these were the cash advances given by assessee to Shri Rakesh Patel on the security of the cheques and addition were made Held that:- Addition was made only on the basis of presumption on the ground that the cheques were received on cash loan advances to Shri Rakesh Patel - There was no corroborative material for sustaining such presumption. This issue is purely factual in nature Against the revenue.
Addition made on account of interest on loan cheque issued by one Shri Archit Shah was to the tune of Rs.13,50,000/- against the debit balance of Rs.12,14,072/- , difference was added by AO as the income of the assessee derived by way of interest on their loan advances Held that:- department could not bring on record any material to show that the assessee actually received interest of Rs.1,35,928/- at any point of time Against the revenue.
Addition on the basis of entries mentioned in the seized documents AO observed that on the seized paper, two amount respectively Rs.30 lacs and Rs.11 lacs were indicated, and on this basis additions were made Held that:- addition was made only on the basis of the noting on the piece of papers without there being any evidence It is completely unjustifiable Against the revenue.
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2013 (2) TMI 575
Unexplained investment u/s 69 Assessee purchased the properties through registered sale deeds - Additional stamp duty was imposed upon the assessee as per the rate prescribed by Jantri - Stamp Valuation Authority adopted such valuation as per the Jantri which is notional value for the purpose of determining the stamp duty payable As per AO assessee had paid more consideration as against in sale deeds Held that:- No material is brought on record to prove that the assessee had invested more than what had been shown in the sale deeds The Stamp Valuation Authority, however, valued the lands higher than the sale consideration indicated in the sale-deeds Assessee paid up additional stamp duty on such valuation. This by itself would not mean that the assessee made any unexplained investment - Additional stamp duty paid to avoid litigation and to get clear title of the property Section 50C of the Act would cover the instances of capital gain upon sale of immovable property by the sellers - provisions of section 50C of the IT Act are not applicable in the hands of the purchaser Against the revenue.
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2013 (2) TMI 574
Addition on the basis of presumption AO made addition on the ground that there was on-money transaction in the sale of plots of lands developed by the assessee AO based his reasoning on statements of witnesses and Site Engineer, indicating booking of plots at a higher rate than reflected in books Held that:- During search, nothing was found which revealed that the assessee had ever received 'on money' on sale of plots - The disclosure was not on account of profits from such projects specifically - The persons whose statements are recorded have no locus standi to confirm as to what is the rate charged by the assessee - The persons whose statements were recorded have merely visited the site but has not actually transacted with the assessee - The Site Engineer is not empowered either book the plots or to quote the rate Since these persons are not competent to admit any undisclosed income, their statements cannot be admitted in evidence for taking a view against the assessee - Merely on presumption no amount can be added as undisclosed turnover or profit thereon - Addition not sustainable Against the revenue.
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2013 (2) TMI 573
Penalty u/s 271D and 271E Whether receipt of share application money and repayment thereof will violate the provisions of section 269SS and 269T Assessee has accepted monies on account of shares/ debentures of Rs.20,000/- or more and also repaid monies otherwise than by account payee cheques or account payee Bank Drafts Held that:- As decided in the case of Rugmini Ram Ragav Spinners Pvt. Ltd.[ 2007 (7) TMI 237 - MADRAS HIGH COURT] provisions of section 269SS and 269T have application only in a limited way in respect of deposits or loans. When it is neither deposit nor loan the provisions of sections 269SS and 269T have no application at all. The Court further held that even if there is repayment by cash, it could not be said to attract the levy of penalty automatically under section 271E of the Act. The advances of share application money or repayments of such advances have not flowed from any undisclosed income of the assessee or the concerned persons.
In the present case also, the assessee was searched and these share application monies were never the subject matter of addition in the case of the assessee and accordingly the share application money and repayment of the same have not flowed from any undisclosed income of the assessee.
Further even the penalty under section 271D and 271E is not automatic there is bonafide belief to the effect that the receipt of advances against allotment of shares and repayment of share money would not be termed as loans or deposits, which would be sufficient to drop the penalty levied in the present case In favour of assessee.
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2013 (2) TMI 572
The complaint was filed against four persons, namely, against the company, its chairman, managing director and another director The complainant filed a petition for amendment to introduce a plea to the effect that accused Nos. 2 to 4 were/are persons in charge of and responsible for the conduct of the business of the company Two cheques in question were signed by the chairman and managing director of the company - Accused Nos. 2 and 3 are not now available, the revision petitioner wanted to rope in the fourth accused and it is for that purpose now the petitioner has come forward with this amendment Held that:- there is no specific averment to the effect that the fourth accused was in charge of and responsible to the company for the conduct of its business. The two cheques in question were signed by the chairman and managing director of the company. The first accused is the company itself No conviction can be had against the fourth accused in view of the conspicuous absence of the pleadings required under section 141 of the Act.
Even under the provisions of the CPC if there is an admission, it cannot be taken away by the amendment though it may be possible to be clarified by way of amendment, learned counsel for respondent submits. Here, since the particulars required under section 141 of the Act were not incorporated in the complaint, the accused would be entitled to get an order of acquittal. That position cannot be altered by causing amendment to introduce a new plea which was originally not there. It cannot be treated as a correction or a clerical mistake or any such defect that can be cured.
The amendment would go to the core of the matter placing the fourth accused in a disadvantageous position which will cause serious prejudice to him. It is a criminal case where the fourth accused can be sentenced to imprisonment also if found guilty Amendment will cause substantial change in the nature and character of the case causing serious prejudice to the fourth accused. That has got fundamental impact on the defence that can be raised by the fourth accused Hence such an amendment cannot be permitted at all This Criminal M.C. is dismissed.
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2013 (2) TMI 571
Waiver of pre-deposit - Stay of recovery - Manufacturers of laboratory equipment - Cleared the same on payment of excise duty - equipment cleared to the customers are returned back - Rule 16 of Central Excise Rules, 2002 - Repair - recondition - re manufacture - AO argued that goods are cleared after repair/reconditioning, etc. the activity does not amount to manufacture and, therefore, the appellant should have reversed the original credit taken - Held that:- Following the decision in case of MARUTI UDYOG (2002 (8) TMI 155 - CEGAT, COURT NO. II, NEW DELHI) The statement of facts made in the show-cause notice does not lead to any conclusion that the activity undertaken by the appellant does not amount to manufacture. In favour of assessee
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2013 (2) TMI 570
Non payment of excise duty - wrongly availing the exemption under Notification No. 108/95-CE dated 28.08.1995 on the basis of forge certificate - seeking waiver of pre- deposit - Held that:- The appellants cleared the subject goods without payment of excise duty under the exemption notification on the strength of the requisite certificate issued by the Executive Head of the Project Implementing Authority i.e. ICICI Bank purportedly countersigned by the Joint Secretary to the Government of India in the Ministry of Finance. It is not the case of the Revenue that the appellants while clearing the subject goods under exemption notification were aware of forgery if any in respect of the signature of the Joint Secretary or that they were aware that Finance Ministry was not the line Ministry for the purpose of the project undertaken by M/s TEIL or the appellants were in conspiracy with M/s TEIL. Thus, prima-facie bonafide of the appellants clearing the subject goods under exemption Notification No. 108/95-CE dated 28.08.95 without the payment of excise duty cannot be doubted.
Whether the liability to pay the excise duty would of the certificate issuing authority i.e. ICICI Bank or the main assessee who receive excise free goods (in this case M/s TEIL) or the manufacturer of the subject goods who bonafide cleared them availing the benefit of exemption notification on the basis of forged certificate - Held that:- As this question requires serious consideration because under the normal commercial practice if a requisite certificate is produced alongwith the purchase order the manufacturer/ supplier is prima-facie expected to accept the correctness of certificate and is not expected to first verify the genuineness of certificate before availing the exemption under the notification. Thus, there is a prima-facie case in favour of the appellants. Otherwise also in show cause notice served on the appellants it is writen that M/s TEIL the main assessee before the issue of the show cause notice had deposited the amount of Rs.2,50,38,883/- which was approximately equal to the central excise duty involved on entire quantity of excisable goods received by them duty free on the strength of invalid certificate from various manufacturer including the appellants. From this, it is prima-facie clear that duty amount has already been paid to the Department and the interest of the Revenue is secured - the appellants have made a prima-facie case to justify the waiver of condition of pre-deposit, accordingly, the stay applications allowed - Appeals be listed in due course.
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2013 (2) TMI 569
Benefit of 1st proviso to section 11A(2) - the respondents are employees, authorised signatories/directors etc. of the main manufacturing units who have discharged duty liability along with interest and penalty equal to 25% of the duty in terms of provisions of section 11A(1A) - whether the respondents would get the benefit of provisions of section 11A(2) when the main manufacturer discharges his duty liability along with interest and 25% of penalty - Commissioner(Appeals) set aside penalties imposed as per Rule 26 of Central Excise Rules, 2002 relying upon Board's Circular No.831/08/2006-CX, dtd. 26.07.06
- Held that:- Proviso to sub-section 2 of section 11A refers to conclusion of proceedings in respect of such person. Such person refer to the persons to whom notice has been served under sub-section 1 of section 11 and who have paid the duty along with interest and 25% of penalty within a period of 30 days of receipt of the notice. Thus the proceedings do not come to an end in respect of all the persons in as much as the expression used in the said proviso is only in respect of such persons and not all the notices. Notices under sub-section 1 of section 11A are served only to those persons who are required to pay duty and have either not paid duty or short paid.
The invocation of penal provision of Rule 26 is dependent upon so many factors which are unconnected with the provisions of section 11A. Rule 26 which provides for imposition of penalty in certain circumstances cannot be said to be a part of the proviso to sub-section 2 of section 11A so as to conclude the proceedings in respect of all notice on payment of duty, interest and part penalty by main manufacturer.The said proviso in my views, only concludes the proceedings in respect of the persons against whom notice under section 11A is issued and who have deposited the duty in terms of provisions of sub-section 1A of section 11A. - payment of short paid and non-paid duty by the main manufacturer would not result in conclusion of proceedings against all other persons on whom penalty stands proposed to be imposed in terms of Rule 26. If the legislative intent was extending immunity to all connected persons, the language used would have been simpliciter "in respect of all persons.
A reading of Circular No.831/08/2006-CX, dtd. 26.07.06 as relied upon by Commissioner(Appeals) nowhere clarifies the issue as to whether payment by the main manufacturer would result in stopping of proceedings in respect of all the persons or the same would amount to settle the dispute viz-a-viz the main manufacturer only. As such nothing turns on the said Circular, thus Commissioner(Appeals)'s orders allowing the appeals of respondents by extending the benefit of proviso to sub-section 2 of section 11A are not in accordance with law - as the appellate authority has not discussed the merits of the case the impugned orders are set aside and matter remanded for fresh decision after independently examining the role of each and every respondents and the applicability of Rule 26. Revenue's appeals allowed in above terms..
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2013 (2) TMI 568
Rebate of the CENVAT credit reversed - assessee also filed appeal against the same impugned order being stayed waiving the pre-deposit of dues after taking into consideration the amount of credit is already reversed - The appeal is pending - Held that:- Show cause notice issued to deny the credit wrongly availed by the assessee in respect of the bought out items, the value of which is not included, in the assessable value of the finished goods. The adjudicating authority confirmed the demand of CENVAT Credit availed by the applicant. In these circumstances, the rebate claim if filed by the respondents to be kept pending till the disposal of the appeal.
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2013 (2) TMI 567
Sale to related person - demanding duty at the sale price - assessee contested as they are dealing with M/s WTIPL at the arms length & also demand is time barred - Held that:- M/s Sandvik AB, Sweden is holding company of the applicant firm both having more than 50% of the shares in M/s Walter AG Germany, which in turn holds 99.9% of shares of M/s WTIPL, the customer of the applicant.
Thus going through the adjudication order it is found that the goods cleared by the applicants were further sold by M/s WTIPL at the higher price, thus in view of the share holding as mentioned above the dealing is not at arms length - issue of limitation is question of law and facts and the same shall be taken at the time of final hearing - applicant has not made out a prima facie case for complete waiver of pre-deposit thus directed to deposit Rs.4.5 lakhs within a period of eight weeks.
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2013 (2) TMI 566
Job work - Waiver of pre-deposit - Stay petition - Demand u/s 11A - Penalty u/s 11AC - Extended period of limitation - Rule 4(5)(a) of CENVAT Credit Rules, 2004 - Cost of production plus 10%/15% of the cost of the goods - Imported raw materials sent to job worker - After processing goods were returned to the applicants - Cleared on stock transfer basis to their other Unit - Reversing the credit taken by them at the time of import - After processing the same, have been cleared on payment of duty - Filing the ER-1 returns regularly
Held that:- The applicants are reversing the credit taken by them at the time of import on stock transfer basis and the duty has been discharged by their sister Unit after processing the goods. Therefore, there is no Revenue loss to the department and further it is also contended that clearances made by them are in the knowledge of the department, therefore, extended period of limitation is not invokable
The applicants have to discharge their duty liability as per the formula adopted by Ujagar Prints i.e., cost of production plus 10%/15% of the cost of the goods, same has not been done by the applicants. Further, the valuation adopted by the applicants was also not disclosed at the time of clearance of the goods. Therefore, the applicants have failed to make a case for 100% waiver of predeposit and hence they are directed to pre-deposit 50% of the duty confirmed against them. Pre-deposit waive partly.
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2013 (2) TMI 565
Penalty u/s 67 of the KVAT Act - assessee contested against non supply of rely upon documents to levy penalty - Held that:- When documents are relied on against a person, that person should be given either the copies of the documents or at least that person should be given an opportunity to peruse the documents relied on.
In so far as this case is concerned, Ext.P1 notice shows that several documents were relied on for proposing to levy penalty on the petitioner but despite the request made by the petitioner for giving copies of these documents, without even responding to the request made, the Officer has levied penalty on the petitioner by Ext.P3 order, thus penalty order. need to be set aside directing 2nd respondent to either furnish copies or allow the petitioner to peruse the documents relied on against him in Ext.P1 notice - in favour o0f assessee as directed.
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2013 (2) TMI 564
Petition filed under Section 22(6) of the TNVAT Act, 2006 unheard - Held that:- As the self assessment order for the year 2011-12 has been passed in terms of Section 22 of the TNVAT Act, 2006. Realising certain mistakes in the assessment, petitioner made an application under Section 22(6) of the TNVAT Act, 2006 with enclosures and that was filed on 30.11.2012. Since no fresh assessment order has been passed, the writ petition has been filed for a mandamus as if no order has already been passed, the authority will consider the same in accordance with law.
Thus without going into the merits of the petitioner's claim, the respondent is directed to consider the petition filed under Section 22(6) of the TNVAT Act, 2006 if it is in order and no order has already been passed, as expeditiously as possible.
6. The writ petition is disposed of as above. No costs.
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2013 (2) TMI 563
Non payment of Service Tax on transport charges - Goods Transport Agencies (GTA) - assessee claimed to exemption from payment of Service Tax as per Notification No. 34/2004-ST Dated 03/12/2004 - Held that:- Appellant had availed the services of GTA and also individual truck owners during the period 2004-05 to 2009-10. But it is also true that they could not substantiate their claim that they were entitled to the benefit of Notification No. 34/2004-ST Dated- 03.12.2004 as the freight amount paid by them in most of the cases were below Rs.750/- per single trip and Rs.1500/- for double consignment.
This claim of the Appellant needs verification by the lower authorities. Both sides agree that the case be remanded to the original adjudicating authority for verification of these facts.
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2013 (2) TMI 562
Refund of service tax paid on services used in SEZ - denial of refund on Event Management, CHA Services, Management Consultancy, Commercial Training & Coaching Services, Testing, Management and Business Consultancy Service by overseas service provider, Maintenance & Repair Service as they were not in the approved list of services - Held that:- The Approval Committee which has examined this issue has issued a specific certificate to the appellant indicating the various services received by the appellant and justification for use of such services in relation to authorized operations and the jurisdictional Commissioner of Central Excise is also a member of this Approval Committee. Once the Approval Committee has given the nexus and the justification, it was totally unwarranted on the part of the adjudicating authority and the appellate authority to go into this question and come lo their own findings in the matter. Therefore, rejection by the lower authorities of the refund claims of the service tax paid on various services on this grounds is bad in law and is accordingly set aside.
Whether the appellants can be granted refund under Notification No.09/2009-ST dated 3.3.2009 as amended by Notification No.15/2009-ST dated 20.5.2009 - Held that:- Notification No.09/2009-ST exempts the taxable services specified in Clause (105) of Section 65 of the Finance Act, 1994 provided in relation to the authorized operations in a SEZ and received by a developer or units of a SEZ, whether or not the said taxable services are provided inside the SEZ, from the whole of the service tax leviable thereon under Section 66 of the Finance Act, 1994.
The refund procedure for operationalising the exemption applies to services which are procured from outside in respect of which the service tax liability has to be discharged first and the refund claim subsequently. In the case of services which are wholly consumed within the SEZ, there is no necessity to discharge the service tax liability ab initio. That does not mean that in a case where service tax liability has been discharged, the appellant is not eligible or not entitled for refund of the service tax paid under the provisions of Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. If the appellant is eligible for refund under Section 11B, then the same cannot be denied on the ground that the claim was made under Notification No.09/2009-ST. As in the present case there is no dispute that the services were provided in relation to the authorized operations of the appellant within the SEZ & the appellant has filed the refund claim within the tine period provided for in Section 11B and the appellant has borne the incidence of taxation. Services provided to a SEZ or unit in the SEZ is deemed as export as per the provisions of Section 2 (m) (ii) of the SEZ Act, 2005 and as per Rule 31 of the SEZ Rules, 2006, the appellants are entitled for exemption from payment of service tax on the services which are used or provided to a unit in the SEZ. Therefore, even if the appellant was not eligible for refund under Notification No.09/2009-ST dated 3.3.2009, the appellants were certainly eligible for refund under Section 11B of the Central Excise Act, 1944 - rejection of service tax refund is not sustainable in law - in favour of assessee.
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