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Case Laws
Showing 161 to 180 of 733 Records
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2009 (9) TMI 917 - DELHI HIGH COURT
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... ... ..... ies Act. In these circumstances, the Tribunal rightly held that there could not have been any assessment order passed against the company which was not in existence as on that date in the eyes of law it had already been dissolved. The Tribunal relied upon its earlier decision in Impsat Pvt. Ltd. Vs. ITO 276 ITR 136 (AT). We are of the opinion that the view taken by the Tribunal is perfectly valid and in accordance with law. No substantial question of law arises. Dismissed.
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2009 (9) TMI 916 - CESTAT CHENNAI
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... ... ..... back and vide Final Order No.1101/09 dt. 1.9.09 in appeal No.E/528/07, the penalty has been set aside by the Tribunal. I find that when the appeal of the assessee came up for hearing, neither side pointed out that there is an appeal by the department against the very same impugned order. The Registry also did not list both the appeals together as is required to be done. In any case, since the issue of penalty has already been decided by setting aside the same, the department s appeal has become infructuous. Hence the same is dismissed. (Dictated and pronounced in open court)
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2009 (9) TMI 915 - DELHI HIGH COURT
Pre-deposit - section 35F of the Central Excise Act - clandestine manufacture and removal - demand based on consumption of electricity - Held that:- There was no satisfactory explanation regarding excessive consumption of electricity during the relevant period by the appellants. Merely by relying upon certain formula and certificates stated to have been issued by State of Rajasthan and contending that the production of M/s. Shree Sharma Steel Rolling Mills (P) Ltd. was from ultra modern imported machinery with minimum requirement of operation whereas the factory of the appellants being manually operated is of no help, there was no other material placed before the adjudicating authority to disbelieve the contention that excessive consumption of electricity discloses clandestine manufacture and removal of the goods from the factory - there is no prima facie case being made out in support of the contention that the findings are not based on tangible evidence.
In exercise of the extraordinary jurisdiction under Article 226 of the Constitution, it is not a case which calls for any interference - there is no scope of interference - appeal dismissed.
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2009 (9) TMI 914 - SUPREME COURT
Whether the appeals preferred by the State of Uttar Pradesh through Collector under Section 13 of the Act, 1960 aggrieved by the orders passed by the Prescribed Authority are maintainable or not?
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2009 (9) TMI 913 - BOMBAY HIGH COURT
Pre-deposit - Held that: - It is not in dispute that the petitioner is a Government of India undertaking. Solvency is beyond doubt. The question sought to be raised in appeal, no doubt, needs serious consideration by the Tribunal, however, one cannot say that no prima facie; case was made out by the petitioner for complete waiver of the pre-deposit. As a matter of fact, as per the instructions of the Board, petitioner is exempted from furnishing any security - the direction of pre-deposit of ₹ 1,11,67,333/- stands substituted with that of general bond for the full amount of duty - petition allowed - decided in favor of petitioner.
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2009 (9) TMI 912 - MADRAS HIGH COURT
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... ... ..... ques were issued voluntarily or not need not be gone into for the purpose of this writ petition. However, since the petitioner in now reclaiming the cheques on the basis of a legally sustainable objection, the respondents are duty-bound to return the cheques. 6. In view of the above, this writ petition is ordered, directing the respondents to return the cheques detailed above within two weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed." As the petitioner is similarly placed, I have no hesitation in following the order made in the above writ petition. In these circumstances, the first respondent is directed to return the cheques bearing Nos. 263349 and 263350 dated June 9, 2005 to the petitioner within a period of two weeks from the date of receipt of a copy of this order. With the above directions, the writ petition is ordered. No costs. Consequently the connected miscellaneous petition is closed.
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2009 (9) TMI 911 - CHHATTISGARH HIGH COURT
Constitutional validity of Chhattisgarh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 to declare the Entry Tax (Amendment) Act, 2001, whereby maximum limit of tax imposable under section 4A has been enhanced from 10 per cent to 50 per cent, as also notification issued under section 3(2), 4A under section 10 of the Act of 1976 from time to time challenged
Held that:- The constitutional validity of the Act of 1976 has been upheld and fresh challenge to the constitutional validity of the Act of 1976 is not maintainable, in view of the law declared under article 141 of the Constitution in Bhagatram Rajeev Kumar [1994 (11) TMI 337 - SUPREME COURT OF INDIA],
The notifications issued by the State Government from time to time under sections 3(2), 4A and section 10 of the Act of 1976, vide annexure P6, and other notifications impugned by the petitioners in the connected petitions, are valid law and the same are in consonance with the provisions of the Act of 1976. Appeal dismsissed.
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2009 (9) TMI 910 - KERALA HIGH COURT
Whether the Tribunal was justified in holding that the work executed by the respondent, viz., supplying and applying hot white thermoplastic road marking paint, marking of pedestrian crossing, zebra crossing, etc., with white and yellow paints on road, constitutes civil works within the meaning of section 7(7) of the Kerala General Sales Tax Act, 1963, entitling the respondent for payment of tax at compounded rate at two per cent?
Held that:- Even though the contention of counsel for the respondent agreed that paint marking on the highway is a requirement for opening the highway for traffic under the instruction issued by the Ministry of Surface Transport, such marking does not constitute part of the construction of the road.
In the first place, marking is done after completion of the construction of the road and it is awarded under separate contract. In fact, the existing roads are also marked with paints and it is invariably done when the road is declared as national highway or State highway. Therefore, paint marking is essentially a regulation introduced for smooth and safe vehicular traffic and it is not a part of road as a structure. In fact, ever so many roads are constructed and maintained in the State without any paint marking, whatsoever. It cannot be said that such roads are maintained without completion of the construction. In our view, marking of the road is not part of the construction of the road and it is a post construction work done for safe vehicular movement and the purpose is to guide the drivers and pedestrians using the road. Revision allowed.
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2009 (9) TMI 908 - DELHI HIGH COURT
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... ... ..... ion, but not by the named Arbitrator, who is an employee of the company. Not the party could say that the party would be bound by only one part of the agreement and not by the other part, unless such other party was impossible of performance or was void being contrary to the provisions of the Act. A party to the contract cannot claim the benefit of arbitration clause under the arbitration agreement but ignore the appointment procedure relating to the named Arbitrator, contained in the arbitration clause. 5. In view of this decision of the Supreme Court, I consider that the petitioner s prayer for appointment of Sole independent Arbitrator different from the one given in the arbitration clause cannot be accepted. The petitioner therefore has to raise dispute before the Arbitrator named in the arbitration clause. The petition is disposed of with the liberty to the petitioner of raising dispute before the named Arbitrator. With these directions, the petition stands disposed of.
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2009 (9) TMI 907 - DELHI HIGH COURT
Reassessment notice - condonation of delay - Held that:- The petitioner is entitled to contest the orders passed in revision on the merits by penalizing the petitioner with cost for its conduct bordering on the negligent.
In order to balance the equities, we feel that delay should be condoned only with exemplary cost. In the facts of this case we are of the opinion that cost of ₹ 1 lakh (Rs. 50,000 for each application) be imposed. In these circumstances, the writ petition is allowed. Rule is made absolute. Orders dated December 8, 2005 passed by the Tribunal are set aside.
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2009 (9) TMI 906 - KERALA HIGH COURT
Non-payment of tax on the sale of old vehicles purchased under exchange mela - Held that:- It is the conceded position that the petitioner treats the sale of the new vehicle under the exchange scheme as full and complete with no debit balance of price in the customer's account. Therefore, purchase of old vehicle from the customer is complete when new vehicle is sold to him by recovering its value reduced by the cost of the old vehicle taken over from the customer.
The purchase and sale of the old vehicle is either by or on behalf of the petitioner. Thus the Intelligence Officer, rightly found that the petitioner evaded payment of tax on purchase and sale of old vehicle by not disclosing the sales turnover in the return filed and therefore, the penalty was rightly levied under section 67(1) of the KVAT Act.
The petitioner is directed to produce certificate from the assessing officer about payment of tax and interest on the sale of old vehicles as above for the above two years and if such certificate is produced, the Intelligence Officer will after rechecking the correctness of the same, reduce the penalty to 25 per cent of the tax liability and excess penalty, if any, paid should be refunded to the petitioner. However, if the petitioner does not produce proof of payment of tax and interest as above, then the penalty fixed by the Tribunal at equal amount of tax will stand confirmed.
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2009 (9) TMI 905 - KERALA HIGH COURT
Whether the Tribunal was justified in sustaining the penalty levied under section 30B(4) of the Kerala General Sales Tax Act, 1963 on the petitioner?
Held that:- Incorporation of sub-clause(3) in sub-clause (4) is only to avoid repetition of all the words used in sub-clause (3) for the purpose of assessment and demand of tax and penalty under clause (4). In fact, what is clear from clause (3) is that subject to the ceiling on penalty provided thereto and the mandatory tax on turnover of goods even below the taxable limit, all the provisions of the Act with regard to the assessment and levy of penalty are applicable. Therefore, we uphold the finding of the Tribunal that an order under section 30B(4) read with sub-section (3) should always be passed with penalty, whatever be the quantum which is a matter of discretion depending on the facts and circumstances to be considered by the adjudicating officer.
However, considering the fact that the petitioner fairly conceded the tax liability and since the tax is also paid, we modify the Tribunal’s order by limiting the penalty to an amount equal to the tax levied and confirmed by the Tribunal.
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2009 (9) TMI 904 - KERALA HIGH COURT
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... ... ..... e of the view that the item falls under entry 11 which provides as follows Asbestos sheets and products, cement products including products in combination with other materials not elsewhere mentioned in this Schedule. Since cement is a component of the product and the same obviously being one of the active ingredients, it can safely be treated as a cement product falling under entry 11 above referred. Though we accept the contention of counsel for the petitioner that the product cannot be treated as cement as such, the contention of the petitioner that the item falls under the residuary entry is absolutely unacceptable because we have already noticed that the item falls under entry 11. Residuary entry applies to items which are not covered by any of the specific entries. So much so, we allow the revision partly by declaring the item as falling under entry 11 taxable at 12 per cent and direct the assessing officer to modify the assessment by applying the rate as stated above.
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2009 (9) TMI 903 - KERALA HIGH COURT
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... ... ..... in that judgment indicating that timber or plywood used for civil construction work is assessable under the Fifth Schedule. The contention of the counsel for the respondent is that by virtue of the judgment abovereferred, tax on works contract is payable on the value of the goods and not on the intermediary products. We do not think there is any scope for considering this issue because it has no bearing on the rate of tax applicable and this issue has probably relevance in the determination of taxable turnover on works contract which is not an issue raised in the revision cases filed by the State. We, therefore, conclude by stating that the rate of tax applicable for works contract involving supply of timber, plywood, etc., is the rate provided under entries 18 and 19 of the Fourth Schedule to the KGST Act depending on the nature of work. Consequently the orders of the Tribunal and that of the first appellate authority are reversed and assessment is restored on rate of tax.
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2009 (9) TMI 902 - RAJASTHAN HIGH COURT
Grant of exemption under the Sales Tax Exemption Scheme, 1998 in the category of new industrial unit
Held that:- In full agreement with the orders passed by the District Level Screening Committee and the learned Tax Board that the petitioner-firm is not entitled for tax incentive under the category of expansion as per the Scheme of 1998. Further, upon perusal of the order passed by the learned Tax Board, it is not established that any subsequent application was filed under the category of new industrial unit under which now the petitioner-firm is claiming for benefits of tax incentive under the Scheme of 1998. Appeal dismissed.
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2009 (9) TMI 901 - KERALA HIGH COURT
Whether CST assessment could be completed by the fast track team under the provisions of section 17D of the Kerala General Sales Tax Act?
Held that:- The applicability of section 17D of the KGST Act for completion of pending assessments under the CST Act does not bar regular assessing officers to complete CST assessments if the fast track team does not take up such assessments. We therefore uphold the judgment of the learned single judge and dismiss the writ appeal.
The appellant will deposit ₹ 50,000 towards assessed tax for 2003-04 and ₹ 1 lakh towards assessed tax for 2004-05 before the assessing officer within two weeks from the date of receipt of a copy of this judgment.
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2009 (9) TMI 900 - RAJASTHAN HIGH COURT
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... ... ..... they are required to give in the declaration form(s). We have come across numerous cases where columns are left blank. The forms are duly signed. However, the relevant columns are left blank. In the instant case, admittedly, the assessing authority made the following assessment order In the above facts and circumstances of the case, it is abundantly clear that clear violation of section 78(2) of the Act of 1994 was made by the respondent and the controversy involved in this case is squarely covered with the judgment in case of Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. 2008 18 VST 436 (SC) 2009 1 SCC 308. Therefore, this revision petition is allowed. The order dated March 12, 1999 passed by the Deputy Commissioner (Appeals), Udaipur and the judgment dated May 17, 2002 passed by the Tax Board impugned in this revision petition are hereby set aside and the order passed by the assessing authority dated October 10, 1997 is hereby restored. No order as to costs.
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2009 (9) TMI 899 - KARNATAKA HIGH COURT
Whether the assessee had failed to prove that the goods have suffered tax in the hands of the dealers and accordingly demand was raised on the petitioner?
Held that:- The assessee, viz., the petitioner having submitted himself before the authorities and contended on merits with regard to the submission of form No. 32, now cannot, at the revisional stage contend that by non-submitting of the intelligence report the right of the revision petitioner is prejudiced, more particularly, when the opportunity was available at all points of times and not made use of. In fact even on merits with regard to form No. 32, the assessing authority has found that he himself has visited and has investigated the genuineness of the dealers who is said to have issued form No. 32 filed by the revision petitioner and after making cross-verification has come to the conclusion that they are bogus in nature and no such dealers are available at the addresses mentioned in the invoices. In fact the discussion made by the Tribunal at paragraph Nos. 6 to 9 is a complete answer by itself to the grounds now urged by the revision petitioner. Revision dismissed.
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2009 (9) TMI 898 - KARNATAKA HIGH COURT
Whether the total amount of ₹ 5,79,06,193 was a turnover, which in fact had escaped assessment in terms of the original assessment order and if so, was required to be brought to tax and the assessee/dealer called upon to pay the commensurate tax liability, as it arises under the provisions of the Act?
Held that:- The assessing officer as well as the Additional Commissioner are very correct, in concluding that the assessee had in fact not come up with any supporting, clinching material to demonstrate that the assessee had actually utilized the turnover of iron and steel of the value of ₹ 5,79,06,193 and inspite of several opportunities, the assessee had not produced the books of accounts and evidences, before the assessing authority and in terms of the material subsequently placed before the Joint Commissioner (Appeals), the position did not improve in any manner.
On the failure of the assessee to discharge the burden cast under section 6A, the value of the iron and steel acquired by it, has to be presumed to have been sold within the State and more so, the assessee itself being a dealer dealing with such products, the assessing authority and the Commissioner have rightly arrived at the proper conclusion. The Joint Commissioner was wrong in varying the order of the assessing authority. We do not find any question of law which is erroneously decided by the Additional Commissioner, as is sought to be made out in the questions of law raised in the memorandum of appeal. Appeal dismissed.
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2009 (9) TMI 897 - BOMBAY HIGH COURT
Exemption from payment of purchase tax under section 13AA and consequent penalties and interest under section 36 as levied by respondent No 3. claimed - Held that:- We are really not concerned with the import of goods which is taxable separately. We are only concerned with SIL licences which was purchased by the petitioners and it was used for import of the goods whether at Mumbai or Delhi. There is no dispute that the petitioners purchased the licence in Mumbai. These licences have not been sold by the petitioners. As such the purchase tax under section 13AA becomes due and payable.
After the judgment in Devi Dass [1994 (4) TMI 312 - SUPREME COURT OF INDIA] and knowing what the position in law would be, it will be difficult to hold that imposition of penalty and interest was without jurisdiction. That contention must be rejected
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