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Showing 121 to 140 of 934 Records
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2013 (2) TMI 823
Issues involved: Appeal dismissed on the ground of limitation and prayer for condonation of delay rejected.
Summary:
The Tribunal dismissed the appeal on the ground of limitation, with the prayer for condonation of delay being rejected. The order under challenge dated 22nd December, 2000, required the appellant to pre-deposit a sum of &8377; 32,56,079.43p. The appellant failed to appear before the appellate authority on multiple hearing dates. The order was passed citing non-compliance with the provisions of Sec.25F of the Central Excise Act. The appellant's counsel argued that no peremptory order was issued for the deposit, leading to a violation of natural justice. Despite this argument, the appellant had avoided payment for over 12 years. The Court ordered that if the appellant deposits the specified sum within three months, the appeal will be heard on merits. The appellant can utilize the amount in their CENVAT Account towards the deposit. Failure to make the deposit within the stipulated time will result in the dismissal of the appeal.
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2013 (2) TMI 822
Issues involved: Application u/s 391 and 394 of the Companies Act, 1956 for Scheme of Amalgamation of two companies.
Details of the judgment:
1. The application was made for the Scheme of Amalgamation of a Transferor company with a Transferee company. Both companies' registered offices are in Delhi.
2. Details of incorporation dates, capital, and financial accounts were provided in the application.
3. Boards of Directors of both companies approved the proposed Scheme, with resolutions enclosed.
4. Status of equity shareholders and creditors of Transferor company, along with consents obtained, were detailed in the application.
5. Prayer was made for dispensation of meetings of shareholders and creditors of Transferor company.
6. Since Transferor company is wholly owned by Transferee company, and consents were obtained, meetings of Transferor company's shareholders were dispensed with.
7. Net worth of both companies was positive, ensuring no adverse impact on creditors post-merger, justifying dispensation of meetings of creditors.
8. The Scheme involved amalgamation of a subsidiary with its holding company, without issuance of new shares, resulting in an unaltered capital structure.
9. All assets and liabilities of the subsidiary were to be transferred to the holding company, whose net worth was positive.
10. Precedents were cited where courts dispensed with the requirement of seeking sanction under Sections 391 to 394 of the Act in similar amalgamation cases.
11. The application was allowed as per the terms presented, with orders for further action.
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2013 (2) TMI 821
Right of an accused to be released on bail while procedure of remand under Crpc - Despite charge-sheet have been filled within the period, sanction had not been obtained to prosecute the accused and to proceed - No Cognizance has been taken on the basis thereof - HELD THAT:- the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii). Whether cognizance is taken or not is not material as far as Section 167 Cr.P.C. is concerned. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 Cr.P.C., it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 Cr.P.C. The scheme of the Cr.P.C. is such that once the investigation stage is completed, the Court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court.
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2013 (2) TMI 820
Issues involved:
The issue involves quashing and setting aside the orders and proceedings of Criminal Case No.289 of 2008 pending before Metropolitan Magistrate, Ahmedabad, under the provision of Bombay Money Lenders Act, 1946, initiated on a complaint by the respondents against a limited company incorporated as a Non Banking Financial Company.
Judgment Details:
Issue 1: Interpretation of the Bombay Money Lenders Act, 1946
The Division Bench confirmed that Non Banking Finance Companies are not covered by the definition of 'money-lenders' under the Act, and State authorities lack jurisdiction to take regulatory or penal measures against such companies. The judgment highlighted the importance of notification under Section 2(10)(v) to bring Non Banking Financial Companies under the Act.
Issue 2: Regulatory Authority of Reserve Bank of India
The applicant, a Non Banking Financial Company, holds necessary licenses from the Reserve Bank of India under the RBI Act, 1934, which overrides other statutes. The company's activities, financing commercial vehicles, do not classify it as a Money Lender under the State Act. The RBI has full control over NBFCs, including the authority to take regulatory and penal actions in the interest of depositors.
Issue 3: Lack of Notification and Legal Standing
The State Government failed to produce any notification under Section 2(10)(v) to bring Non Banking Financial Companies under the Money Lenders Act. The absence of such notification, coupled with the company's compliance with RBI regulations, led to the quashing of the criminal proceedings against the applicant. The judgment emphasized the overriding effect of Chapter IIIB of the RBI Act on the Bombay Money Lenders Act, 1946.
Conclusion:
The Court allowed the application, quashing the criminal proceedings under the Bombay Money Lenders Act, 1946, against the Non Banking Financial Company. The lack of notification and the company's adherence to RBI regulations were pivotal in determining the State's lack of jurisdiction in penalizing or regulating such entities.
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2013 (2) TMI 819
Issues involved: Interpretation of provisions of the Kerala Co-operative Societies Act and the Finance Act, 1994 regarding service tax liability for a Group Deposit and Credit Scheme.
In W.P.(C) No. 6774/12, a co-operative society introduced a Group Deposit and Credit Scheme limited to its members. The society received notices from the first respondent u/s 65(12)(v) and 65(105)(zm) of the Finance Act, 1994, to register and provide financial documents. The society contended that its scheme does not fall under the mentioned provisions, deeming the notices illegal.
The respondents clarified that no service tax demand was made, only an enquiry into the society's liability. The court found the petition premature as the society had not yet filed objections or substantiated its stand. The court directed the society to file objections within two weeks, after which the respondents would conduct an enquiry to determine if the scheme attracts service tax liability. If liability is established, the society must provide necessary documents for quantification.
All other writ petitions raised similar issues as W.P.(C) No. 6774/12 and were directed to follow the same procedure. The court did not delve into the merits of the controversy, leaving all issues open for further consideration.
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2013 (2) TMI 818
Compensation loss on non lifting of materials of as speculative loss - Held that:- It is a situation in which there could not have been any possibility of actual delivery of the goods because even at the point of time when delivery was to take place, the factory was not even likely to come back to the possession of the assessee. The factory was given on lease and as such the purchases cannot be said to have been made for bonafide actual user purposes. CIT(Appeals) has painstakingly analyzed the various contract provision - namely clause 7 to 9, these clauses have inbuilt speculation element embedded in the agreement. The factum of actual non delivery or impact of non delivery could be relevant only in the cases in which genuine business transactions are involved. On the facts of the present cases, these aspects are not really relevant. In view of these discussions, as also bearing in mind entirety of the case, we approve the conclusions arrived at by the CIT(Appeals) and decline to interfere in the matter.
Nature of expenditure - loss on cancellation of booking of 100 TPD Klin, proposed expansion of steel unit - Held that:- We find that in the case of CIT-vs.- Anjani Kumar Co. Ltd. (2002 (7) TMI 44 - RAJASTHAN HIGH COURT) was in seisin of a situation in which advance was paid to acquire land for expansion of business but since land was not acquired, no capital asset came into existence and there was no question of allowing depreciation on the said asset. On these facts, Their Lordships upheld the view that since no land was acquired and no capital asset came into existence, the loss of advance was to be allowed as business loss. In this view of the matter, and having noted that the loss was incurred in connection with expansion of existing business, we are of the considered view that loss of advance has to be allowed as a revenue deduction of business loss. The question of expense being capital in nature would have arisen only if the machinery was actually acquired; that is not the case here.
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2013 (2) TMI 817
Issues involved: The primary issue in this case is whether the income earned by the respondent assessee should be taxed as short term capital gain or as income from business.
Details of the judgment:
Issue 1: Taxation of income earned on sale of shares
The respondent-assessee, a Doctor by profession, declared short capital gain in the return of income for the assessment year 2004-05. The Assessing Officer considered a portion of the gain as business income due to the short holding period of the shares. However, the CIT (A) and the Tribunal, relying on CBDT Circular No.4-2007, concluded that the gain on sale of shares should be taxed as short term capital gain. The Tribunal noted that the funds for investment in shares mostly belonged to the assessee, the shares were consistently shown as investments in the balance sheet, and the dividend income earned further supported the investment nature. Considering the respondent's busy schedule as a Doctor, the Tribunal determined that the income from the sale of shares held for less than six months should be taxed under the head of Capital Gain. It was also mentioned that for earlier assessment years, the revenue had taxed the gain on sale of shares as short term capital gain.
Issue 2: Absence of legal question
The Tribunal's decision to tax the gain from the sale of shares as capital gain was based on concurrent factual findings. Therefore, the High Court concluded that no legal question arose for consideration, and thus, the appeal was dismissed without costs.
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2013 (2) TMI 816
Issues Involved:
1. Conviction and sentence under Sections 307, 324, and 380 of the IPC.
2. Evidence and proof of firing a gunshot.
3. Appropriateness of the sentence under Section 324 of the IPC.
Summary:
1. Conviction and Sentence under Sections 307, 324, and 380 of the IPC:
The appellant challenged the High Court's judgment which set aside his conviction u/s 307 and 380 IPC but maintained the conviction and sentence u/s 324 IPC. The Sessions Judge had initially convicted the appellant under Sections 307, 324, and 380 IPC, sentencing him to concurrent rigorous imprisonment terms of seven, one, and four years respectively. The High Court acquitted the appellant of charges u/s 307 and 380 IPC, but upheld the conviction u/s 324 IPC, sentencing him to three years of rigorous imprisonment.
2. Evidence and Proof of Firing a Gunshot:
The appellant's counsel argued that the firing of the gunshot was not proven beyond reasonable doubt as the 'Katta' (country-made pistol) was not seized. However, the prosecution's evidence, including witness testimonies and medical reports, indicated that the injury was caused by a firearm. The Court referred to the precedent in Anwarul Haq v. State of U.P., stating that the absence of the weapon does not necessarily discredit the prosecution's case if the evidence is otherwise convincing.
3. Appropriateness of the Sentence under Section 324 of the IPC:
The Court discussed the principles of sentencing, emphasizing that the punishment must be proportional to the gravity of the offence. It considered factors such as the nature of the injury, the weapon used, the appellant's age, and the absence of criminal antecedents. The Court cited various precedents, including Santa Singh v. The State of Punjab and Jameel v. State of Uttar Pradesh, to highlight the importance of a balanced approach in sentencing. Ultimately, the Court found the three-year rigorous imprisonment excessive and reduced it to one year, also directing the appellant to pay Rs. 20,000 as compensation to the victim u/s 357(3) of the Code of Criminal Procedure.
Conclusion:
The appeal was disposed of with a modification in the sentence, reducing the rigorous imprisonment to one year and imposing a compensation of Rs. 20,000 to be paid to the victim.
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2013 (2) TMI 815
1. ISSUES PRESENTED and CONSIDERED The legal judgment revolves around the following core issues: - Whether the Scheme of Arrangement under Sections 391 and 394 of the Companies Act, 1956, involving the merger of twelve Transferor companies with a Transferee company, should be sanctioned by the Court.
- Whether the procedural requirements, including notifications and approvals from relevant authorities, have been adequately met.
- Whether the objections raised by the Regional Director (RD) and the Official Liquidator (OL) have been satisfactorily addressed.
- Whether the financial and legal concerns, including issues related to capital raising, unsecured loans, undisclosed income, and compliance with Section 297 of the Companies Act, have been resolved.
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Sanction of the Scheme of Arrangement - Relevant legal framework and precedents: The Scheme is evaluated under Sections 391 and 394 of the Companies Act, 1956, which govern the compromise or arrangement between a company and its creditors or members and the amalgamation of companies.
- Court's interpretation and reasoning: The Court considered the approval of the Scheme by the Boards of Directors and the absence of objections from shareholders and creditors. It emphasized compliance with statutory requirements.
- Key evidence and findings: The Scheme involved the exchange of shares between the Transferor and Transferee companies, with detailed proportions outlined for each entity.
- Application of law to facts: The Court found that the procedural requirements, including publication of notices and submission of affidavits, were met, and no objections were received from stakeholders.
- Treatment of competing arguments: The RD and OL raised concerns about financial disclosures and compliance with statutory provisions, which were addressed through affidavits and explanations provided by the companies.
- Conclusions: The Court concluded that there were no impediments to granting the sanction for the Scheme, given the clarifications and compliance with legal requirements.
Issue 2: Addressing Objections by the RD and OL - Relevant legal framework and precedents: The RD and OL's role in scrutinizing the Scheme under the Companies Act, 1956, to ensure it is not prejudicial to stakeholders or public interest.
- Court's interpretation and reasoning: The Court considered the objections raised by the RD regarding capital raising, unsecured loans, undisclosed income, and compliance with Section 297.
- Key evidence and findings: Affidavits and explanations were submitted to address each objection, including justifications for share allotments and clarifications on financial transactions.
- Application of law to facts: The Court found the explanations provided by the companies plausible and accepted them, noting compliance with statutory requirements.
- Treatment of competing arguments: The RD's concerns were addressed through detailed responses, and the Court was satisfied with the explanations provided.
- Conclusions: The Court concluded that the objections did not pose a barrier to the approval of the Scheme, as they were adequately addressed.
3. SIGNIFICANT HOLDINGS - Preserve verbatim quotes of crucial legal reasoning: "In view of the above clarifications, the approval accorded by the shareholders and creditors of the Petitioners companies, representations/ reports filed by the RD and the OL attached with this Court to the proposed Scheme, there appears to be no impediment to the grant of sanction to the proposed Scheme."
- Core principles established: The judgment underscores the importance of compliance with statutory requirements and the need for clear communication and resolution of objections raised by regulatory authorities.
- Final determinations on each issue: The Court sanctioned the Scheme of Arrangement, directing compliance with statutory requirements and confirming the transfer of assets and liabilities from the Transferor companies to the Transferee company. The order clarified that it does not exempt payment of stamp duty or taxes.
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2013 (2) TMI 814
Issues Involved:
1. Justification of High Court's direction for police verification of student strength in aided schools.
2. Legality of staff fixation based on alleged bogus admissions.
3. Role of police in educational administrative matters.
4. Mechanism for accurate student verification and staff fixation.
Summary:
1. Justification of High Court's direction for police verification of student strength in aided schools:
The Supreme Court examined whether the High Court was justified in directing the Secretary, General Education Department of Kerala to verify the actual student strength in all aided schools with police assistance. The High Court had concluded that due to the lack of investigative skills and authority within the Education Department, police assistance was necessary for accurate verification. However, the Supreme Court found that police intervention in educational matters could send a wrong signal to students and disrupt the academic atmosphere. Therefore, the Supreme Court set aside the High Court's direction for police involvement.
2. Legality of staff fixation based on alleged bogus admissions:
The Assistant Educational Officer (AEO) had initially fixed the staff strength of S.N.V.U.P. School, Thalikulam for the year 2008-09. Subsequent inspections by the Super Check Cell revealed significant discrepancies, including bogus admissions and irregular staff fixation. The Director of Public Instructions (DPI) revised the staff strength based on these findings, reducing the number of divisions and posts. The Supreme Court upheld the DPI's findings and actions, recognizing the need to address the issue of bogus admissions and irregular staff fixation.
3. Role of police in educational administrative matters:
The Supreme Court emphasized that the Kerala Education Act and Rules do not prescribe any mechanism for police involvement in staff fixation processes. The presence of police in schools could cause embarrassment and create a negative impression among students. The Court directed the Education Department to implement a more scientific method for student verification, such as using Unique Identification Card (UID) technology, rather than relying on police intervention.
4. Mechanism for accurate student verification and staff fixation:
The Supreme Court acknowledged the State's efforts to develop a better mechanism for student verification and staff fixation. The State proposed using UID technology to accurately determine student numbers and ensure proper staff fixation. The Court directed the Education Department to implement this method and follow the guidelines in the circular dated 12.10.2011. The Court also allowed the State to adopt better scientific methods in the future to prevent bogus admissions.
Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's direction for police verification of student strength in aided schools. The Court upheld the DPI's actions regarding staff fixation based on findings of bogus admissions and directed the Education Department to implement UID technology for accurate student verification. The appeal was allowed without any order as to costs.
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2013 (2) TMI 813
Issues involved: Whether seized amount should be considered as advance tax for computation of interest under Sections 234A, 234B, and 234C of the Income Tax Act, 1961.
Summary:
1. The appeal by the revenue questioned the Tribunal's direction to treat the date of seizure as the date of payment of advance tax for interest calculation u/s 234A, 234B, and 234C of the IT Act.
2. A search u/s 132 of the IT Act was conducted on the respondent-assessee in July 2006, resulting in the seizure of Rs. 41 lakhs. The respondent-assessee requested to adjust the seized amount against tax liability, but the AO and CIT(A) did not consider it as advance tax, leading to interest levied under Sections 234A, 234B, and 234C.
3. The Tribunal ruled that the seized amount should be treated as advance tax payment based on the assessee's statement during the search, thus exempting the Rs. 41 lakhs from interest under Sections 234A, 234B, and 234C.
4. The respondent's counsel cited a previous court decision where seized amounts were adjusted towards advance tax liability upon request, resulting in no interest under Sections 234B and 234C being chargeable.
5. The revenue's counsel argued against the applicability of the previous decision, stating the absence of a formal letter requesting adjustment. However, the Tribunal found the statement made by the respondent during the search to be sufficient for adjustment, dismissing the revenue's distinction.
6. The Court upheld the Tribunal's decision, citing precedent, and dismissed the appeal in favor of the assessee, emphasizing the adjustment of the seized amount for interest calculation under Sections 234A, 234B, and 234C.
7. The appeal was ultimately dismissed with no costs imposed.
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2013 (2) TMI 812
Jurisdiction - certification of correctness of inventory - conduct of proceedings under Section 110(1B) of the Customs Act, 1962 - Binding precedent or not - whether the functions must be performed by an Executive Magistrate or by a Judicial Magistrate?
Held that:- Since the task of certifying the correctness of the inventory in respect of seized goods under Section 110 (1B) of the Act is only an Executive function, in view of the provision of Section 3, sub-Section (4) of the Cr.P.C. the functions must be performed by an Executive Magistrate and not by a Judicial Magistrate.
Since the aspect of function of the Magistrate as appearing under Section 110 (1B) under reference to the provision of Section 3 (4) Cr.P.C. was not examined in the orders relied upon by the learned counsel for the Petitioner, they cannot be said to be binding precedents. Rather, the same are per incuriam.
The Petition is dismissed with liberty to the Petitioner to approach the Collector concerned of the area to perform the functions as laid down under Section 110 (1B) of the Act.
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2013 (2) TMI 811
Issues Involved:
1. Initiation of assessment proceedings u/s 148 read with section 147 of the I.T. Act, 1961.
2. Taxability of enhanced compensation in the assessment year 2002-03.
3. Rejection of deduction claim u/s 54F of the I.T. Act, 1961.
4. Validity of assessment made u/s 144 of the I.T. Act, 1961.
5. Assessment of enhanced compensation in the hands of a deceased person through his legal heir.
Summary:
1. Initiation of Assessment Proceedings (u/s 148 read with section 147):
The Tribunal addressed the issue of the initiation of assessment proceedings u/s 148 read with section 147 for the assessment year 2002-03. The assessees argued that the CIT(A) erred in upholding the initiation of these proceedings. However, this ground was not pressed by the assessees during the appellate proceedings, leading to its dismissal as not pressed.
2. Taxability of Enhanced Compensation:
The assessees contended that the CIT(A) erred in holding that the enhanced compensation was taxable in the assessment year 2002-03. Similar to the first issue, this ground was also not pressed by the assessees and was dismissed as not pressed.
3. Rejection of Deduction Claim (u/s 54F):
The primary contention was that the CIT(A) erred in upholding the rejection of the deduction claim u/s 54F. The Tribunal reviewed the evidence and found that the assessees failed to provide bills or vouchers to substantiate the construction or renovation of a residential house. The valuation report from the Registered Valuer was deemed insufficient as it did not confirm the year of construction. The Tribunal upheld the findings of the CIT(A) and AO, stating that the assessees did not discharge the onus to prove the construction of a residential house within the stipulated time, thus not qualifying for the exemption u/s 54F. The Tribunal cited the jurisdictional High Court's decision in Pawan Kumar Garg v. CIT 311 ITR 397 (P&H) and the Kerala High Court's decision in Mrs. Meera Jacob v. ITO 313 ITR 411 (Ker) to support its conclusion.
4. Validity of Assessment Made (u/s 144):
The assessees argued that the CIT(A) erred in upholding the assessment made u/s 144. The Tribunal found that the AO had provided repeated opportunities to the assessees to submit supporting evidence, which they failed to do. The Tribunal agreed with the CIT(A)'s findings that the assessment was completed after considering the available evidence and explanations, and thus, the assessment u/s 144 was justified. This ground of appeal was dismissed.
5. Assessment of Enhanced Compensation in the Hands of a Deceased Person:
One of the assessees contended that the CIT(A) erred in upholding the assessment of enhanced compensation in the hands of a deceased person through his legal heir. This ground was not pressed during the appellate proceedings and was dismissed as not pressed.
Condonation of Delay:
The Tribunal condoned the delay in filing the appeals, attributing it to the non-allotment of PAN and considering the delay to be insignificant and justified.
Conclusion:
The Tribunal dismissed all the grounds of appeal raised by the assessees, upholding the findings of the CIT(A) and AO. The appeals (ITA No. 944, 945 & 946/Chd/2009) were dismissed in their entirety. The order was pronounced in the Open Court on 19th Feb., 2013.
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2013 (2) TMI 810
Issues involved: Appeal against assessment order passed by Value Added Tax Authority, waiver of predeposit, cancellation of registration of dealers affecting tax liability, validity of tax credit on purchases made before registration cancellation.
Summary:
The appellant-assessee appealed against an assessment order by the Value Added Tax Authority and requested waiver of predeposit. The Tribunal directed the appellant to deposit 15% of the amount, but the appellant failed to do so, resulting in the vacation of the stay. The appellant then approached the High Court, highlighting that the tax appeal was still pending. The Court observed discrepancies in denying tax credit based on the cancellation of dealers' registrations with retrospective effect. The appellant argued that tax credit should not be denied for purchases made when the dealers' registrations were valid. The Court noted a strong prima facie case in favor of the appellant, indicating that the entire additional tax was imposed due to non-availability of credit from canceled dealers. Consequently, the Court set aside the Tribunal's order, allowing the appellant to enjoy stay without pre-deposit during the appeal process. The appeal was directed to be heard promptly.
In the case, the appellant demonstrated grounds for total waiver of predeposit, emphasizing that the tax demand was primarily based on the cancellation of dealers' registrations after the purchases were made. The Court acknowledged the appellant's argument and found merit in the case, suggesting that the decision in a previous case involving Meet Traders would be relevant. Consequently, the Court overturned the Tribunal's order from 10.05.2012, granting the appellant stay without pre-deposit during the pending appeal. The Court emphasized the need for an expeditious disposal of the appeal, ensuring a fair hearing on the merits of the case.
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2013 (2) TMI 809
The High Court of Bombay heard the case regarding the tax liability on benefits from a wind power generation policy. The substantial question of law was whether the benefit was capital in nature and not taxable.
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2013 (2) TMI 808
Issues:
The issues involved in the judgment are the quashing of a show cause notice, the supply of photocopies of relied upon documents, and the return of non-relied documents in original.
Quashing of Show Cause Notice:
The petitioners initially sought the quashing of the show cause notice dated 5-5-1999. However, during the proceedings, the petitioners amended their prayer to focus on the supply of photocopies of relied upon documents and the return of non-relied documents in original. The petitioners were directed to specify the documents they required, and a supplementary affidavit was filed accordingly.
Supply of Documents:
The petitioners demanded photocopies of specific documents mentioned in the show cause notice, including an item, an attendance register, seized floppies, and a statement. The respondents contended that the demanded documents had already been supplied, and there was no need for further supply after a significant period. The respondents accused the petitioners of delaying tactics by not filing a reply since the issuance of the notice in 1999.
Return of Non-Relied Documents:
The petitioners also requested the originals of certain documents seized during the search, even though they were not relied upon in the show cause notice. The respondents argued that the demand for these documents, particularly the floppies, was an attempt to stall the proceedings. They highlighted that the material stored in the seized floppies was deemed irretrievable, and demanding them again was an abuse of the legal process.
Court's Decision:
The court found that the demands for documents were unnecessary and aimed at obstructing the proceedings. It noted that the petitioners were not entitled to relief as this petition essentially mirrored a previous one concerning the same cause of action. The court dismissed the writ petition but directed the respondents to pass final orders based on the show cause notice within three months. The respondents were instructed to report compliance promptly after passing the final order.
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2013 (2) TMI 807
Business Support Service - services relating to registration of the car - Held that: - The appellant is rendering assistance to their client in getting the motor vehicle registration done. The said activity, by no stretch of imagination, can be considered as supporting the business of their customers - the activity undertaken by the appellant does not come within the purview of ‘Business Support Service’.
The issue should have been examined on merits by the lower appellate authority, which he has not done - appeal allowed by way of remand.
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2013 (2) TMI 806
Issues Involved:
The issue involved in the judgment is whether the appellants are liable to discharge Service Tax on the consideration received for allowing other importers to store their goods in their warehouse under the category of "Cargo Handling Services."
Details of the Judgment:
The appellant, M/s. Crescent Organics Pvt. Ltd., Mumbai, and M/s. Crescent International, Mumbai, have a storage facility in Bombay Port where they store imported goods for subsequent clearance and also allow other importers to store goods in their warehouse for a charge. The department contended that the appellants are required to pay Service Tax under the category of "Cargo Handling Services," leading to the issuance of notices, confirmation of demands, and imposition of penalties. The lower appellate authority dismissed their appeals, prompting the appellants to appeal before the Appellate Tribunal.
The appellants argued that the activity of storing goods for other importers does not fall under the taxable category of Cargo Handling Services as they have not handled any cargo themselves. They maintained that they only charged storage fees for allowing storage in their warehouse, making the Service Tax, interest, and penalties imposed unsustainable in law.
The Revenue, represented by the learned Dy. Commissioner (AR), supported the findings of the adjudicating and appellate authorities.
After considering the submissions from both parties, the Tribunal concluded that the activity of storing goods imported by other importers falls under the classification of 'Storage and Warehousing Services' rather than 'Cargo Handling Services' as determined by the department. Consequently, the Tribunal set aside the impugned orders as unsustainable in law.
As a result, the appeals were allowed with any consequential relief.
(Dictated and pronounced in Court)
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2013 (2) TMI 805
Issues involved: Service Tax liability on maintenance and repair services of computer software u/s 73 of the Finance Act, 1994, applicability of Circulars issued by the C.B.E. & C., retrospective effect of statutory provisions.
Summary:
Issue 1: Service Tax liability on maintenance and repair services of computer software
The appellant, engaged in providing taxable services, received a show cause notice demanding Service Tax for a specific period u/s 73 of the Finance Act, 1994. The impugned order confirmed the demand along with interest and penalties u/s 76 and 78 of the Act. The appellant contended that they discharged the Service Tax liability from a certain date based on Circulars issued by the C.B.E. & C. The appellant argued that the statutory provision regarding maintenance or repairs, which included computer software, was amended w.e.f. 1-6-2007, making Service Tax liability effective only from that date. The appellant sought a stay on recovery of dues during the appeal.
Issue 2: Applicability of Circulars issued by the C.B.E. & C.
The appellant relied on Circulars issued by the C.B.E. & C. to support their contention that they were exempted from Service Tax for a certain period. The Circulars clarified the leviability of Service Tax on repair of computer software and the classification of software as goods. The appellant argued that they acted in good faith based on these Circulars and should not be held liable for Service Tax for the preceding period.
Issue 3: Retrospective effect of statutory provisions
The Tribunal considered the retrospective effect of the statutory provision that included computer software under the category of goods for Service Tax liability on maintenance or repair services. It was noted that explanations are prospective if they impose a burden on the assessee and retrospective if beneficial. The Tribunal found in favor of the appellant, granting unconditional waiver from pre-deposit of the dues and staying the recovery during the appeal period.
*(Dictated and pronounced in Court)*
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2013 (2) TMI 804
Issues involved:
The issue involves the classification of service provided by the appellant as "Manpower Recruitment or Supply Agency" service, the imposition of service tax, and the eligibility for exemption under Notification No. 8/2005-S.T.
Classification of Service and Imposition of Service Tax:
The appellant, M/s. J.E. Engineering Works, undertook job work for their principal M/s. Tarang Engineering Pvt. Ltd. by fabricating and testing radiators. The department alleged that the service provided falls under "Manpower Recruitment or Supply Agency" service, leading to a demand for service tax. The appellant contended that the activity was job work exempted under Notification No. 8/2005-S.T. The adjudicating authority passed an ex parte order confirming the service tax demand, interest, penalties, and a fee. The lower appellate authority dismissed the appeal stating that the argument regarding job work exemption was not raised before the adjudicating authority.
Legal Point Raised by Appellant:
The appellant argued that the lower appellate authority did not consider the issue on merits but dismissed the appeal based on the premise that no new point can be raised before the Commissioner (Appeals). The appellant cited the decision of the Hon'ble Apex Court in the case of Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan, emphasizing that a point of law can be raised at any stage during appellate proceedings. The appellant requested a stay based on this argument.
Appellate Tribunal's Decision:
The Appellate Tribunal noted that the appellant had raised the plea of undertaking job work and claimed exemption under Notification No. 8/2005-S.T. before the adjudicating authority. The Tribunal held that the lower appellate authority should have considered this point of law regarding the leviability of service tax and eligibility for exemption. As the lower appellate authority failed to do so, the matter was remanded back to reconsider the appellant's plea and issue a speaking order after hearing the appellant. Consequently, the appeal was allowed by way of remand, and the stay application was disposed of.
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9911796707
