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Showing 181 to 200 of 1046 Records
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2008 (7) TMI 949
Issues involved: Appeal against CIT(A) order for asst. yr. 2003-04 regarding treatment of loss on F&O transactions and ad hoc disallowance of expenses on speculative share trading.
Loss on F&O Transactions:
The assessee appealed against the CIT(A)'s decision to treat the loss claimed on F&O transactions as a speculation loss instead of a business loss. The counsel for the assessee argued that previous tribunal decisions supported their position that derivative trading is distinct from share trading and loss on derivatives should not be considered speculative. The Departmental Representative contended that since the transaction settlement did not involve share delivery, it constituted speculation loss. The Tribunal referred to precedents where it was held that derivative dealings do not involve share purchase/sale and loss on derivatives is not speculative. The issue was decided in favor of the assessee based on the tribunal decisions, allowing the appeal on this ground.
Ad Hoc Disallowance of Expenses:
The second ground of appeal concerned the CIT(A)'s confirmation of a 1% ad hoc disallowance of total expenses claimed for speculative share trading transactions. Following the decision in favor of the assessee on the first ground, the Tribunal ruled that the disallowance of 1% of total expenses was unwarranted. Consequently, the disallowance was deleted, and the appeal on this ground was allowed.
In conclusion, the appeal by the assessee against the CIT(A) order for the assessment year 2003-04 was allowed by the ITAT Mumbai.
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2008 (7) TMI 948
Whether the appellant-Company is right that after the writ petition was disposed of on September 6, 1999 wherein balance quantity of 1008 MTs of coal was directed to be allotted to the writ petitioner, the learned single Judge was not justified in passing an order on September 13, 1999 on mentioning of the matter without there being any application for modification/clarification of the order dated September 6, 1999?
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2008 (7) TMI 947
Issues involved: Interpretation of Cenvat Credit Rules u/s Rule 57C(1) of Central Excise Rules, 1944 and Rule 6(1) of Cenvat Credit Rules, 2002.
Summary:
Issue 1: The appellant-revenue questioned the justification of allowing Cenvat Credit on inputs used in manufacturing exempted goods, as per Rule 57C(1) of Central Excise Rules, 1944 [Rule 6(1) of Cenvat Credit Rules, 2002].
Details: The respondent-assessee, engaged in manufacturing copper tubes using duty paid Liquefied Petroleum Gas (LPG) for job work, claimed Cenvat Credit on the input. The adjudicating authority initiated proceedings but later dropped them. The revenue appealed to the Commissioner (Appeals) and then to the Tribunal, both appeals being unsuccessful.
Issue 2: The appellant sought admission of the appeal based on reliance on a Tribunal order, but the Court found the issue to be academic due to the revenue-neutral nature of the transaction.
Details: The appellant's advocate referred to a Tribunal order in a different case, pending appeal before the Rajasthan High Court, to support the appeal's admission. However, the Court noted the academic nature of the issue, being revenue neutral, and dismissed the appeal on those grounds.
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2008 (7) TMI 946
The High Court of Kerala quashed Notification No.377/05 dated 19.4.2005 cancelling exemption for units manufacturing bottled drinking water, citing a previous Division Bench judgment in favor of the petitioners.
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2008 (7) TMI 945
The Bombay High Court dismissed Central Excise Appeal No. 232 of 2007 filed by Commissioner of Central Excise, Pune-III against CESTAT Final Order No. A/494/2007-WZB/C-IV/(SMB), dated 14-3-2007. The Supreme Court found the tribunal's view in line with the law and dismissed the appeal.
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2008 (7) TMI 944
Whether in view of the provisions of Delhi Lands (Restrictions and Transfer) Act, 1972 (for short "Delhi Lands Act"), read with the provisions of the Land Acquisition Act, 1894 (for short "Land Acquisition Act") transfer of land made by the original owner by registering a sale deed on the basis of which mutation was also granted would and could be accepted as legal and valid transfer despite the fact that such land was acquired by the State Government under the provisions of the Land Acquisition Act for the public purpose?
Held that:- In the present case the registering officer appears to have registered the sale deeds illegally and without jurisdiction, as in our considered opinion, none of the pre-requisite conditions laid down under Sections 4, 5 and 8 of the Act, which are required to be strictly complied with for obtaining permission to sell or transfer and also for registering the said documents was complied with, as is required to be done.
The transfers made in favour of the appellants by the original land holders by execution of the sale deed, therefor are illegal and without jurisdiction. We have no hesitation in our mind in holding that no title could be conveyed or could pass to the appellants on the basis of such transfer and also that consequential mutation in favour of the appellants for the above reasons is found and held to be without jurisdiction.
There was no valid transfer in favour of the appellants and, therefore, there is no question of issuing any direction to the respondents to allot any alternative land to the appellants. So far as the prayer for granting liberty to the appellants to make an application under Sections 4 and 5 of the Delhi Lands Act is concerned, we do not make any observation thereto except for saying that if a statutory remedy is provided for to a person, he is always entitled to take recourse to such remedy in accordance with law. Appeal dismissed.
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2008 (7) TMI 943
Arbitration and Conciliation - appointment of independent sole arbitrator dismissed - Held that:- The contention of the appellant that appointment of Presiding Co- Arbitrator is not in conformity with the terms of the arbitration agreement is belied by the letter of the appellant dated 14/20.12.2000 addressed to the respondent, wherein it is acknowledged that the Presiding Arbitrator was appointed by both the co-arbitrators.
The learned Single Judge has rightly held that the appellants have themselves not filed any claim before the Arbitrators and the application is barred by delay. The appellant chose to keep silent for about nine years, i.e. arbitrator was appointed in 1997 and appellant approached learned Single Judge in 2006. No explanation has been offered for silence since the last letter dated 22.12.2000 till the date of filing of the petition. This is a clear case of laches on the part of the appellant.Appeal dismissed.
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2008 (7) TMI 942
Differential amount of tax due to wrong issuance of form under section 3B of the U.P. Trade Tax Act, 1948 asked by Tribunal - Held that:- On the facts of the present case, section 3B of the Act is fully attracted even on the admitted facts. The applicant has at least wrongly issued form IIIB to the Indian Oil Corporation in respect of the purchases of refined furnace oil and represented to it that it is entitled to purchase refined furnace oil and such purchases are exempt. This being the admitted position, whether Indian Oil Corporation has paid the tax or not is wholly irrelevant. Even otherwise, under section 3B of the Act the applicant's liability to pay the difference in the tax by way of penalty, is very much there. It cannot avoid its liability for its own wrong.
So far as the argument that there is no column in form IIIB to state as to whether the purchasing dealer is entitled to purchase the raw material at concessional rate of tax or whether such purchase is exempt, is concerned, it will not make any difference on the facts of the present case inasmuch as it is admitted by the dealer-applicant in reply to the show-cause notice that in form IIIB issued by it, it is mentioned that such purchases are totally exempt from payment of tax. The applicant is bound by its own representation and admission. Had there been no such writing on the said form IIIB by the applicant, there might have been an occasion for the selling dealer to ask the applicant, the purchasing dealer, to send a copy of the recognition certificate in support of the claim as to whether the purchasing dealer (applicant) is entitled to purchase the goods at concessional rate of tax or whether such purchases are totally exempt. Thus no illegality in the order of the Tribunal confirming the order passed under section 3B of the Act.
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2008 (7) TMI 941
Whether the additions made on account of suppression of inter-State purchases and sales should be only for the value of actual suppression noticed or whether the assessing authority, after rejecting the books of accounts and the returns filed, could make further addition, apart from the actual suppression?
Held that:- In the instant case, the assessee had filed its annual returns and in that had conceded a particular turnover as total and taxable turnover. Before completion of the assessment proceedings, the check-post authorities had furnished the check-post declarations to the assessing authority in regard to the consignments received by the assessee. Since the assessee had not reflected in the books of account and also in the returns filed about the goods purchased under those check-post declarations, the assessing authority, after rejecting the returns filed by the assessee, has proceeded to pass best judgment assessment. The assessee, apart from denying the transaction, had not produced any other material by way of rebuttal evidence before the assessing authority. Therefore, the assessing authority has proceeded to accept the check-post declarations and has completed the best judgment assessment and while doing so, has made certain additions towards the probable omissions of sales and purchases. While completing the best judgment assessment, the basis that is adopted by the assessing authority is the transactions reflected in the check-post declarations. It is on rational basis that a best judgment assessment could be passed. The best judgment assessment passed by the assessing authority cannot be replaced by this court by yet another best judgment assessment unless the said assessment is wholly arbitrary and whimsical. Against assessee.
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2008 (7) TMI 940
Whether the first respondent is justified in setting aside the order of the second respondent dated October 20, 2004 in rejecting the concessional rate of tax at four per cent on the supply made by the appellant to taluk panchayat in terms of the notification dated March 30, 1996?
Held that:- From the perusal of section 8A that the Government may extend the benefit of tax either by reducing it or granting concessional rate to any particular class of persons and the same has to be interpreted considering the background of such instructions. In the instant case though taluk panchayats, zilla panchayats or gram panchayat are created under the one Act, in the first notification concessional rate of taxes has been shown to zilla panchayats only. Subsequently, in the year 1999, such benefit is also extended to taluk panchayats and gram panchayats. We have noticed that in the second notification concessional rate of tax granted to taluk panchayats and grama panchayats is with prospective effect and not from retrospective effect. Therefore, if the goods are supplied by the assessee to the taluk panchayat, the assessee cannot rely upon the first notification and at best if any supply is made subsequent to second notification, such concession can be made applicable. Even otherwise we cannot consider assessee as an aggrieved person. If the taluk panchayat has purchased A.C. sheets from the assessee, it is for the taluk panchayat to pay the tax as prescribed under the Sales Tax Act. Therefore, we do not see any merit in this appeal.
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2008 (7) TMI 939
Seizure order - Held that:- The Tribunal itself has found that the goods are traceable to bona fide dealer but are not duly account for by the dealer in the account books.
Whether the applicant is dealer or not is required to be find out first. There being no such finding, the order of seizure cannot be sustained. Viewed as above, sufficient force find in the revision. There was absolutely no justification for the Department to seize the goods in question. The seizure order is therefore, illegal and contrary to law. Revision succeeds and is allowed.
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2008 (7) TMI 938
Tax on execution of works contract - Held that:- The authorities below including the Tribunal were not justified to separate the works contract in two contracts, one for supply of goods and the other towards installation expenses. The contract was one and indivisible. Thus, it is held that the authorities below were not justified in law in imposing tax on the amount of ₹ 13,96,228.23 which was received by the applicant on account of execution of works contract. The assessing authority was not justified in levying the tax on the material used for the amount of ₹ 7,00,000 in execution of works contract.
The question of law raised in the revision is therefore, decided in favour of the applicant and against the Department and demand of Central sales tax on supply of sprinklers used in execution of works contract is held contrary to law.
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2008 (7) TMI 937
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to direct the assessing authority to accept the counterfoil of form III-B and to allow the exemption on that basis?
Held that:- This court is of the view that the Tribunal was not legally justified in directing the assessing authority to accept the counterfoil of form IIIB and to allow the exemption on that basis. In the result, the revision succeeds and is allowed and it is held that the direction of the Tribunal with regard to form IIIB bearing No. 87566 is not justified. The said direction is therefore, set aside.
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2008 (7) TMI 936
Whether the Trade Tax Tribunal was legally justified to set aside the demand of interest imposed by the assessing authority despite the fact that the dealer had failed to deposit the tax due under the Act within the prescribed time?
Held that:- Coming to the facts of the present case, the exemption claimed by the dealer-opposite party on certain purchases on the basis of form IIIC(2) having been rejected, the liability to pay tax on such purchases is nothing but an admitted liability to pay the tax under the Act, the purchases being undisputed. In this view of the matter, the dealer-opposite party is liable to pay the interest on the said turnover in view of the statutory provision as contained in section 8(1) of the Act.
Thus find sufficient force in the revision. The revision is on terra firma and the Tribunal has obviously committed a legal error in holding that the dealer-opposite party is not liable to pay the interest as it had filed forms IIC(2) which were subsequently found to be forged one. Question of law raised in the revision is decided in favour of the Department and against the dealer-opposite party.
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2008 (7) TMI 935
Issues: Tax liability on coal turnover purchased from unregistered dealers, constitutionality of section 3AAAA, rejection of rectification application
In the present revision, the main issue revolves around the tax liability of coal purchased by the dealer for consumption in the brick kiln from unregistered dealers. The Tribunal had deleted the tax on this turnover, citing the unconstitutionality of section 3AAAA. The Department filed an application for rectification of the Tribunal's order after the said section was amended with retrospective effect. The key question raised was whether the Tribunal was justified in rejecting the Department's application in light of the retrospective substitution of provisions by U.P. Act 8 of 1992.
The High Court, after hearing the arguments, noted that the controversy was settled by a Supreme Court decision in Hotel Balaji v. State of Andhra Pradesh, where it was held that both the original and amended versions of section 3AAAA were valid legislation. The Supreme Court's ruling overturned the decision of the High Court in a previous case that had declared the section ultra vires. Consequently, the High Court held that the Tribunal erred in rejecting the Department's application for rectification of mistake under section 22 of the Act.
As a result, the revision was allowed, and the dealer was deemed liable to pay tax on the turnover of coal purchased from unregistered dealers. The Tribunal's order deleting the tax was set aside, affirming the tax liability on the said turnover.
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2008 (7) TMI 934
Whether the honourable Trade Tax Tribunal is legally justified in reducing the turnover and rate of tax on electric wire made of copper and aluminium whereas the assessing authority has assessed the turnover on the basis of evasion detected on the survey dated November 25, 1983 and imposed the tax at the rate of 12 per cent as the dealer has manufactured the electric wire made of aluminium and copper?
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal has properly utilized the material available on record?
Held that:- In the present case the learned standing counsel could not point out any illegality or perversity in the finding of the Tribunal reducing the estimated turnover. In this view of the matter, no justification to interfere with the order of the Tribunal estimating the suppressed taxable turnover.
Sufficient force in the argument of the learned standing counsel that the commodity in question was liable to be taxed as unclassified item as was taxed by the assessing officer and not under the aforestated notification at the rate of four per cent. Aluminium and copper wires are not included in "metal" and thus are liable to be taxed as unclassified item.
In the result, the revision succeeds and is allowed in part. Question No.1 so far as it relates to rate of tax at the rate of four per cent on the aluminium and copper wires is concerned, is answered in favour of the Department by holding that the said commodities were taxable at the rate of 12 per cent. So far as the remaining part of question No. 1 is concerned find no force in the revision.
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2008 (7) TMI 933
Issues: Challenge to order of Trade Tax Tribunal in Second Appeal No. 195 of 1991 for assessment year 1983-84 regarding acceptance of disclosed firing period for brick kiln.
Detailed Analysis:
The dealer-applicant, engaged in manufacturing and selling bricks, faced a discrepancy in the acceptance of disclosed firing period for the brick kiln between the first and second seasons. The authorities rejected the disclosed firing period for the first season based on a survey report dated June 4, 1983, which indicated that the brick kiln was fired on June 5, 1983, contrary to the disclosed period. The assessing authority extended the firing period until June 30, 1983, based on this survey, a decision upheld by the Tribunal. The revision primarily focused on whether this rejection and estimation were justified.
Upon review, the High Court noted that the survey report revealed the brick kiln was closed due to a chimney fault, with an expectation of firing after repairs. The authorities presumed firing on June 5, 1983, adding 11 days to the period. The dealer argued that the presumption was unfounded, as the actual firing occurred on June 16, 1983, not June 5, 1983. The court emphasized that the inference drawn by the authorities lacked justification, especially since no discrepancies were found in the account books, a crucial aspect for a best judgment assessment under the U.P. Trade Tax Act.
The court highlighted that the rejection of the disclosed firing period was based on presumption and assumption, without concrete evidence of incorrectness or incompleteness in the dealer's accounts. Referring to the proviso of section 7(3) of the Act, the court emphasized that resorting to best judgment assessment is only warranted in case of incorrect or incomplete returns. As the Tribunal failed to provide any material justifying the rejection of the disclosed firing period, the court ruled in favor of the dealer-applicant, accepting the disclosed firing period for both seasons.
In conclusion, the High Court allowed the revision, answering the key question in favor of the dealer-applicant. The court held that there was insufficient material before the Tribunal to reject the disclosed firing period, emphasizing the importance of concrete evidence in tax assessments. No costs were awarded in this judgment.
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2008 (7) TMI 932
Issues: Determination of whether the supply of cast iron scrap to contractors constitutes a "sale" under section 2(h) of the U.P. Trade Tax Act, 1948 for the assessment year 1988-89.
Analysis:
The judgment by the Allahabad High Court, delivered by Justice Prakash Krishna, addressed the controversy surrounding the supply of cast iron scrap by a unit of Northern Railway to contractors engaged in laying railway tracks. The primary question was whether this supply amounted to a "sale" as defined in the U.P. Trade Tax Act, 1948. The applicant contended that providing scrap free of cost did not constitute a sale, while the authorities, including the Tribunal, held otherwise.
The court noted that the applicant had entered into contracts with contractors for the supply of sleepers, agreeing to provide cast iron scrap at no additional cost. The key issue was whether this supply of scrap to contractors, ultimately used in the production of sleepers, qualified as a "sale." The court referred to a previous judgment where a similar issue was considered, and it was held that such transactions did not amount to a sale, thereby absolving the applicant from tax liability.
Given the precedent set by the previous judgment, the court concluded that the supply of cast iron scrap by the applicant to contractors did not fall under the definition of a "sale" as per the relevant provisions of the Trade Tax Act. Consequently, the court allowed the revision, set aside the orders of the lower authorities, including the Tribunal, and ruled in favor of the applicant, stating that no sales tax was payable on the said transactions.
In conclusion, the judgment clarified the legal position regarding the supply of cast iron scrap by the Northern Railway unit, emphasizing that such transactions did not constitute a sale under the Trade Tax Act. The decision was based on established precedent and the interpretation of relevant legal provisions, ultimately relieving the applicant from any tax liability in this regard.
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2008 (7) TMI 931
Whether Trade Tax Tribunal was legally justified to quash the order passed under section 22 of the Act despite the fact that the question of tax liability was not debatable and Tribunal has accepted the fact that the dealer was liable to pay tax?
Whether Trade Tax Tribunal was legally justified to hold that the mistake in the assessment order was not apparent on the face of record despite the fact that is quite apparent from the records available that the amount of ₹ 5,250.66 was not covered by form C and the exemption was wrongly allowed in the assessment order?
Held that:- The order of the assessing authority asking the dealer-opposite party to pay further tax at the rate of six per cent in addition to the tax already paid at the rate of four per cent in proceedings under section 22 of the Act is perfectly justified. It is well-settled that if there is some defect in the form, opportunity should be given to get the defect removed. In this view of the matter, the mistake in the form appears to be a trivial one and the interest of the Revenue is not at all affected in any manner and the levy of tax at concessional rate was justified. Since the matter is an old one, it is not desirable to remit the matter back to the Tribunal and to afford opportunity to the dealer-opposite party to get the form C rectified. The order of the Tribunal with regard to C form No. 72714 is sustained though for different reason.
Viewed as above, the revision succeeds and is allowed in part and the order of the Tribunal is modified accordingly and it is held that the dealeropposite party is liable to pay the differential rate of tax at the rate of six per cent on a sum of ₹ 7,871.70. With regard to the rest, there is no force in the revision.
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2008 (7) TMI 930
Detention orders - failure to produce tax invoice along with the challan - Held that:- As per prescription under rule 107(1) of the VAT Rules, it was obligatory on the part of the driver of the vehicle to produce the tax invoice on demand. Sub-rule (2) of rule 107 of the VAT Rules also prescribes that a driver should carry with him the documents referred to in sub-rule (1) and other documents of like nature. These two sub-rules should be read simultaneously and in this case, we are of the view that there was contravention of the provision of rule 107 of the VAT Rules. Therefore, we hold the seizure to be a valid one.
Though held that the seizure to be valid, do not find that non-production of tax invoice at the time of seizure did lead to any possibility of evasion of tax in the given facts and circumstances of the case. The order dated May 30, 2008 of the STO/SGR imposing penalty of ₹ 86,616 is, therefore, set aside. The respondent-authorities, under our order dated June 13, 2008, were directed to release the seized goods on payment of ₹ 50,000 by the petitioner, as security.
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