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Case Laws
Showing 181 to 200 of 902 Records
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2009 (8) TMI 1123
Pipes for delivery of water - Exemption under Notification No. 6/2006-C.E. - Order - Appealable order - Appeal by Department - Non-representation - The decision in the case of COMMISSIONER OF C. EX., KOLKATA-III Versus ELECTROSTEEL CASTING LTD. [2008 (10) TMI 424 - CESTAT, KOLKATA] contested - Held that: - the decision in the above case upheld - appeal dismissed.
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2009 (8) TMI 1122
The judgment by Appellate Tribunal CESTAT AHMEDABAD in 2009 (8) TMI 1122 involved appeals regarding demands on clearances of polypropylene to advance license holders. The demands were confirmed, but later set aside based on the principle of Revenue neutrality, following a previous decision in the case of M/s. Reliance Industries. Both appeals were allowed in favor of the appellant.
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2009 (8) TMI 1121
Issues:
1. Challenge to the revocation order under Regulation 20 of the Customs House Agents Licensing Regulations, 2004.
2. Lack of opportunity for a personal hearing before passing the impugned order.
3. Delay in functioning of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).
4. Request for extension of interim suspension order by the petitioner.
Analysis:
1. The writ petition challenges the revocation order passed by the Commissioner of Central Excise & Customs under Regulation 20 of the Customs House Agents Licensing Regulations, 2004, alleging arbitrariness and illegality. The petitioner contends that the order was issued without providing an opportunity for a personal hearing, which is a crucial procedural safeguard in such matters.
2. The petitioner had filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Bangalore, along with an interlocutory application seeking a stay on the impugned order. However, due to administrative reasons, CESTAT was not functioning at the time, leading the petitioner to file the instant writ petition seeking relief.
3. The learned counsel for the petitioner informed the court that CESTAT has resumed functioning, and requested a direction to dispose of the interlocutory application filed in Appeal No. 420 of 2009. The court, after hearing both parties, directed CESTAT to adjudicate on the interlocutory application within three weeks from the date of the court's order. The interim suspension order issued by the court earlier was also extended until CESTAT's decision.
4. In light of the above directions and developments, the High Court disposed of the writ petition at the admission stage, refraining from issuing any order as to costs. The judgment focused on ensuring procedural fairness and timely resolution of the petitioner's appeal before the appropriate appellate forum, CESTAT, emphasizing the importance of providing a fair hearing and expeditious adjudication in matters of licensing regulations and revocation orders.
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2009 (8) TMI 1120
Alleged contravention of the provisions of Section 8(1) and 8 (2) of the FERA, 1973 - peanlty imposed
Held that:- The learned counsel appearing on behalf of the respondent though submitted a written note opposing the case of the appellant but has not been able to substantiate the proof of alleged statement of Surinder Kumar Dhawan, which is the basis of the involvement of the present appellant in this case. The voluntariness of the statement of the present appellant has also not been proved. No copy of the statement dated 2-7-1986 has been placed on record. Thus, there is no evidence which may prove the role of the appellant in this case. Further in this case the enquiry is not fair inasmuch as no opportunity has been granted to the appellant to cross-examine the witnesses who recorded the statement of the appellant and of other accused persons or the witnesses to the recovery of the incriminating documents or the witnesses to the recovery of the alleged foreign exchange from Surinder Kumar Dhawan and as such even the lighter burden to prove their case by preponderance of probability has not been discharged by the respondent. Moreso, they have also not been able to lead evidence before the adjudicating authority that the alleged confessional statement, on which reliance has been placed by the respondents, was made voluntarily and was not recorded by using any force upon him as alleged by the appellant in his written communication sent on 14-9-1985.
Thus no ground for imposition of penalty upon the appellant in this case and consequently, the penalty imposed by respondent No. 3 vide order dated 10-4-1991, upheld by respondent No. 2 though by reducing the penalty amount, is not sustained.
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2009 (8) TMI 1119
Issues involved: Revision filed by the department u/s 11 of the U.P. Trade Tax Act 1948 against the judgment of the U.P. Trade Tax Tribunal for the assessment year 1994-95.
Assessment of Suppressed Turnover:
The assessee, engaged in manufacturing and sale of Menthol and mentha-crystal, was found to have discrepancies in stock records and not maintaining proper books of accounts during a survey. The Assessing Officer (AO) estimated the suppressed turnover based on "best judgment" and levied tax amounting to Rs. 91,634. The first appellate authority later reduced the tax liability to Rs. 71,850 after examining the books of accounts. The Trade Tax Tribunal upheld this decision in the impugned order dated 10.05.2004.
Legal Precedents and Observations:
The High Court considered the facts and circumstances of the case, noting that estimation of turnover is a question of fact. Citing previous cases, the Court emphasized that interference is not required in such cases where estimation is a factual matter. Referring to specific cases like TTR No. 163 of 2007 and New Plaza Restaurant v. ITO, the Court highlighted that estimation is a factual issue, and no question of law emerged from the Tribunal's order in the present case.
Decision:
After reviewing the Tribunal's order and considering the lack of any legal issue, the High Court upheld the Tribunal's decision. The revision filed by the Commissioner Trade Tax, U.P. Lucknow, was dismissed, affirming the Tribunal's order and the reasons provided therein.
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2009 (8) TMI 1118
Sale as contemplated under section 3 of the Central Sales Tax Act - Held that:- What has been decided by the lower appellate authorities were all disputed questions of facts relating to inter-State sale falling under section 3 of the Central Sales Tax Act. While examining the findings rendered by the Appellate Assistant Commissioner as affirmed by the Tribunal, we find that the lower appellate authorities have chosen to accept the stand of the respondent-assessee based on the relevant documents found in the assessment file. With reference to those documents when such a categoric finding came to be recorded by the Tribunal, we are not in a position to interfere with the said findings in the absence of any other valid material displayed by the Revenue which was omitted to be considered by the lower appellate authorities.
In the absence of any question of law, the orders impugned cannot be revised under section 38 of the Tamil Nadu General Sales Tax Act. Revision dismissed.
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2009 (8) TMI 1117
Reassessment orders - Held that:- There is considerable force in the submission of the learned counsel for the petitioner that the orders impugned are not speaking orders. The orders, annexure F series, of the first respondent-assessing officer being illegal cannot be sustained, and as a consequence, the demand notices, annexure G series, are also unsustainable.
In the result, the petitions are allowed. The assessment orders, annexure F series and demand notices, annexure G series, are quashed. The proceeding is remitted with a direction to consider afresh the petitioner's objections after extending a reasonable opportunity of hearing to the petitioner and to pass the orders thereon, in accordance with law.
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2009 (8) TMI 1116
Issues:
- Forfeiture of collected tax under section 46A(1) of the Kerala General Sales Tax Act, 1963 during the period of exemption.
- Impact of forfeiture on the benefit of tax exemption granted to the appellant.
- Permissibility of forfeiture and set-off against certified exemption amount under the notification granting exemption.
Analysis:
The judgment of the High Court of Kerala pertained to a writ appeal challenging the orders issued by the assessing officer forfeiting tax collected by an SSI unit engaged in the manufacture of wheat products under section 46A(1) of the Kerala General Sales Tax Act, 1963. The appellant had collected tax on supplies to the Government for distribution under the public distribution system during the period of exemption granted from 1991 to 1996. The Civil Supplies Department directed the appellant to deposit the collected tax, which was done. However, the assessing officer issued orders forfeiting the collected tax, which were upheld by the learned single judge.
The main contention raised by the appellant was that the forfeiture adversely affected them as the forfeited tax was set off against the exemption amount, resulting in the loss of the benefit of tax exemption. The Government Pleader argued that both forfeiture and set-off were permissible under the notification granting exemption. The Court observed that the tax recovery occurred before the issuance of the exemption order in 1994, and the petitioner had not disclosed the turnover as taxable or paid tax voluntarily. The Department requested the tax remittance due to information about tax collection during the exempted period.
The Court found the forfeiture justified as the appellant claimed exemption on the turnover and collected tax after exemption. However, it noted that setting off the forfeited amount against the total exemption would lead to the loss of benefits for the appellant without fault on their part. Therefore, the Court directed that the forfeited amount should not be set off from the total exemption granted, ensuring the full exemption amount for the specified period to be made available to the appellant. The writ appeal was disposed of by upholding the forfeiture but with a direction to modify assessments for the relevant years and grant relief accordingly. The Court emphasized that the entire amount paid should be adjusted towards tax liability and any applicable interest under the Kerala General Sales Tax Act.
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2009 (8) TMI 1115
Condonation of delay - Held that:- These appeals are allowed being squarely covered by the Division Bench judgment of this court rendered in Sachdeva & Sons Rice Mills Pvt. Ltd., Amritsar v. State of Punjab [2009 (3) TMI 426 - HIGH COURT OF PUNJAB & HARYANA] The matter is remanded back to the Tribunal for deciding the questions of law raised in the appeals by the respondent-State in accordance with law, within four months from the date a certified copy of this order is received. The Tribunal is directed to intimate the parties by issuing notices to them of the next date of hearing so fixed by it.
It is pertinent to notice that along with the appeals, the dealer-assessee have also filed miscellaneous applications seeking condonation of delay in re-filing the appeals. Since no serious objection has been raised by the learned counsel for the Revenue-respondent, therefore, the same are allowed as prayed.
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2009 (8) TMI 1114
Issues involved: Appeal against order u/s 143(3) of the Income-tax Act, 1961 for Assessment Year 2002-03; Permission required from Committee on Disputes (COD) for raising specific grounds before Tribunal; Addition of provision for diminution in value of investments under section 115JB; Disallowance of prior period expenditure; Disallowance of depreciation on office premises.
Provision for diminution in value of investments: The Tribunal held that provision for diminution in the value of investments cannot be considered as provision for any unascertained liability and cannot be added in computation of book profit under section 115JB, following its own decision and the decision of the Hon'ble Supreme Court.
Disallowance of prior period expenditure: The Assessing Officer disallowed the prior period expenditure as the liability was not proven to have crystallized during the year, and the CIT(A) confirmed the disallowance. The Tribunal directed the assessee to provide necessary evidence to determine the year of allowability for the expenses.
Disallowed depreciation on office premises: The Assessing Officer disallowed depreciation on the office building as registration formalities were pending, and the possession was not considered to be with the assessee. The CIT(A) upheld the disallowance based on the reasoning for the previous assessment year. However, the Tribunal allowed the depreciation, stating that possession was handed over to the assessee, and registration formalities pending did not affect the claim of depreciation based on previous court decisions.
Conclusion: The appeal was partly allowed by the Tribunal, emphasizing the importance of possession and payment in determining the allowability of depreciation, and directing the assessee to provide evidence for prior period expenditure.
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2009 (8) TMI 1113
Penalty on the petitioner under section 45A of the Kerala General Sales Tax Act, 1963 challenged
Held that:- A reading of exhibit P13 order itself shows that the aforesaid six documents, both original and forged, have been attached as annexure D only as "samples of such originals as well as forged export documents as specimens testifying the fraud". If these documents are only specimens and samples, the petitioner cannot contend that the respondents have completed the penalty proceedings adopting sampling method. In fact, during the hearing of the case, the learned Government Pleader produced a file containing all the 137 export bills produced by the petitioner and the corresponding export bills obtained from the ports, all of which showed that the export bills produced by the petitioner contained forged signature of the port officer and that the goods mentioned in the originals were not HSD, but provisions, rice, etc. In this context the fact that it was burden of the petitioner to prove that the entire quantity has been shipped and therefore they are not liable for the penalty also cannot be forgotten. In this factual situation, contention is only to be rejected.
In this case, it is the mere commission of an offence that has been committed by the petitioner. Penalty confirmed. Appeal dismissed.
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2009 (8) TMI 1112
Constitutional validity of the provisions introduced to the Kerala Tax on Luxuries Act, 1976 by the Finance Act, 2006 with effect from April 1, 2006, authorising levy of luxury tax at the rate of ₹ 5 per connection per month to be collected and remitted by every cable TV operator from the person enjoying the connection challenged
Held that:- It is the settled position that so long as the levy of tax is constitutional, the court has no authority to go into the reasonableness of the levy or justification of the same which are purely matters of legislative policy. Further, cable TV subscribers as a whole or any substantial number have not approached this court raising objection against the levy which means that there is general acceptability of the tax liability by those who are liable under the Act. We, therefore, find no merit in the challenge raised by the individual subscriber against the levy of luxury tax on cable TV subscriber who enjoys the luxury.
Those who have access to only programmes from Doordarshan channels are not comparable to other class of cable TV subscribers who get access to large number of other channels and entertainment programmes. So much so, we do not find any substance in the allegation of discrimination pertaining to exclusion of subscribers who have taken only cable connection giving Doordarshan channels only. This contention also, therefore, fails and is rejected. The right to collect tax unlike in other statutes is not left to the discretion of the cable TV operators, but the statute makes it their duty to collect and remit the same to the Government. Thus the constitutional validity of the legislation upheld.
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2009 (8) TMI 1111
Whether the items in question manufactured and supplied by the petitioner to M/s. Kirloskar Brothers Ltd., are covered by entry 7, Part IV of the Second Schedule to the Act or entry 89 of the First Schedule to the Act and are taxable accordingly?
Held that:- In the instant case, it is not in dispute that the items in question can also be used as accessories to the electric motor but when the electric motor itself is integral part and inseparable form the monoblock pump then in such a case items in question will not be accessories of the electric motor but accessories of the monoblock pump. When these items are used as accessories to the monoblock pump sets of less than 10 horse power capacity they are covered by entry No. 89 of the First Schedule. The accessories used in the pump sets covered by specific entry No. 89 of the First Schedule cannot be held to be covered by entry No. 7, Part IV of the Second Schedule which is a general entry in respect of electric machine, its part and accessories.
Thus, we set aside the impugned order of the Commissioner dated October 12, 2004 and hold that the "terminal boxes" and "fan covers" sold by the petitioner to Kirloskar Brothers and used as accessory in monoblock pump sets below 10 horse power mentioned in annexure B/2 of the petitioner’s applications under section 68 are covered by entry No. 89 of the First Schedule. Appeal allowed.
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2009 (8) TMI 1110
The petitioner challenged the sustainability of assessment proceedings under section 17D of the Kerala General Sales Tax Act, 1963. The court dismissed the writ petition, stating that the fast track assessment is only for KGST Act, not CST Act, and the impugned orders were valid. The petitioner's remedy lies elsewhere.
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2009 (8) TMI 1109
Liablity to pay sales tax on the "transfer of the right to use any goods for any purpose" - Held that:- This court need not determine the question as to whether in the facts and attending circumstances of the present case there is any transfer of the right by the GAIL to use any goods for any purpose in favour of NEEPCO or the State Government inasmuch as the statute, in the light of the decision in Smt. Namita Paul [2007 (8) TMI 694 - GAUHATI HIGH COURT] has not imposed any liability to pay "sales tax " on a transferor of the right to use goods for any purpose. The impugned letter, dated January 1, 1999, issued by respondent No. 2 and also the letter, dated January 2, 1999, issued by respondent No. 3, are, thus, clearly without any authority of law and cannot, therefore, be sustained.
In the result and for the reasons discussed above, this writ petition succeeds. The directions and/or information, contained in the impugned letters, dated January 1, 1999 and January 2, 1999, are hereby set aside and quashed.
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2009 (8) TMI 1108
Provisions of section 62(5) of the Punjab Value Added Tax Act, 2005 - whether unconstitutional and ultra vires to the Constitution being illegal and arbitrary to the extent that there is no provision for exemption of prior deposit of 25 per cent for filing the appeal by those persons/dealers whose entire goods are lying in the custody of the Department
Held that:- It is admitted position that the entire goods of the value of ₹ 2,98,850 have been detained by the respondents and are lying in their custody whereas the tax assessed is ₹ 1,58,139 which is far less than the value of the goods detained. At the rate of 25 per cent the amount of tax, penalty, etc., would be less than ₹ 40,000 whereas the jewellery worth ₹ 2,98,850 is lying in custody. The valuable goods stand already detained. If in such a situation, the petitioner-firm is insisted upon to make pre-deposit of 25 per cent of the amount of tax assessed before filing of the appeal it would mean burdening it with another liability. The gold jewellery being worth more than four times the requirement of the provision is deemed to be complied with.
In the facts and circumstances of the case, we allow the writ petitions and direct the respondents that the condition of pre-deposit of 25 per cent of the total tax assessed shall not be insisted upon in the case of the petitioner-firm. The appeal filed by the petitioner-firm shall be entertained by the appellate authority without any pre-deposit of 25 per cent of the amount assessed and decided on merit.
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2009 (8) TMI 1107
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Department has discharged burden of proof cast on it to sustain the additions is correct in law?
Whether, on the facts and in the circumstances of the case, the Tribunal was right in partly remanding the turnover, when the basis for all are one and the same, is correct in law?
Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining the penalty imposed on the petitioner without bringing home the guilt, is right in law?
Held that:- We confirm the order of the Tribunal in so far as it ordered for the restoration of the estimation with regard to the stock variation noticed and arrived at by the assessing authority, which resulted in the determination of the taxable turnover in a sum of ₹ 8,26,305 and the tax levied thereon. In so far as the equal addition is concerned, the Tribunal itself has sustained the order of the Appellate Assistant Commissioner deleting such equal addition. The order of remittal passed by the Tribunal for the purpose of estimation of purchase tax turnover of raw materials for the manufacture of almirahs, wire chairs and tables is set aside and after deleting the equal addition as confirmed by the Tribunal, the taxable turnover determined by the assessing authority in a sum of ₹ 15,90,125 stands modified as ₹ 8,26,305. The tax payable on the sum of ₹ 8,26,305 shall be calculated and recovered from the assessee. Appeal partly allowed.
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2009 (8) TMI 1106
Whether the Commissioner is authorised to issue the impugned circulars fixing the "minimum sale price" for calculating the advance tax realisable under section 47(16A) of the Kerala Value Added Tax Act, 2003?
Whether the sale price fixed in respect of "live chicken" as involved in W.P. (C) No. 17708 of 2008 and that of "timber" involved in other cases is based on the actual market value and legally reckonable, for quantifying the advance tax?
Held that:- Every bona fide dealer, who is promptly submitting the returns every month as specified, is entitled to obtain the green cards and on such an event, there is absolutely no liability to pay any advance tax at the check-post for clearing his goods. The petitioners herein, having an opportunity to obtain necessary "green cards" as contemplated under section 19A, read with rule 21A and thus to cross the check-post/ border without any necessity to pay the advance tax or else to remit the advance tax as assessed by the assessing authority on the basis of the invoice/bill price + transportation charges and other amounts as specified in circular No. 53/06, it can never be said that the petitioners are left with "no remedy" because of the fixation of the sale price by the Commissioner vide the impugned circular 28/08 dated June 19, 2008. The contention raised in this regard miserably fails and it is only to be rejected.
Thus all the contentions raised by the petitioners against the impugned circulars fixing the "sale price" of "live chicken" and "timber" (exhibit P4 circular/order No. Cl-70910/04CT dated May 15, 2008 in W.P. (C) No. 17708 of 2008 and circular No. 28/2008 dated June 19, 2008 in other cases) are devoid of any merit. The challenge against the above circular/order fails and the validity is upheld as not assailable. Appeal dismissed.
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2009 (8) TMI 1105
Escaped turnover - whether the "sugarcane", which was used as "industrial input" for sugar manufacturing was exigible to tax at four per cent, since sugar was exempted from taxation by entry 70 in Part II of the OVAT Act placing reliance on the Explanation thereto since sugar was subject to levy of excise duty under the Additional Duties of Excise (Goods of Special Importance) Act, 1957?
Held that:- A bar perusal of the assessment order shows that the assessing authority has not correctly understood the import of entry 108 and the Explanation to Part II of Schedule B, which negates collection of VAT
The reasons ascribed by the assessing authority while completing the assessment being based on a misinterpretation of the provisions of the OVAT Act, we quash the order of assessment dated February 12, 2007 (annexure 1) passed by the Sales Tax Officer, Bhanjanagar Circle, Bhanjanagar. The amount, which has been deposited by the petitioner by virtue of the order of this court dated March 13, 2007, be refunded to it by the Revenue, on proper application, within three months from the date of communication of this judgment, failing which, the petitioner shall be entitled to interest at 10 per cent per annum to be computed from the date of deposit.
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2009 (8) TMI 1104
Whether the first respondent has no jurisdiction to invoke the provisions of section 25 of the Revenue Recovery Act, as it does not pertain to arrears of land revenue?
Held that:- In the event of default in repayment of Government loan, the same shall be recoverable in such manner as specified under the Revenue Recovery Act, as per section 24(2) and section 26 of the TNGST Act. Therefore, even though under G.O. Ms. No. 48 the deferred sales tax will be treated as Government loan, by virtue of the agreement executed by the petitioner, the petitioner has agreed that the amount shall be recoverable under sections 26 and 24(2) of the TNGST Act. Therefore, reading the G.O. Ms. 48 along with the agreement which is also mentioned in the said G.O., the petitioner has agreed for the recovery of the Government loan as arrears of land revenue as per sections 26 and 24(2) of the TNGST Act .
Thus the first respondent is justified in invoking the section 25 of the Revenue Recovery Act by issuing the impugned notice. Writ petition dismissed.
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