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Showing 201 to 220 of 1238 Records
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2014 (5) TMI 1039
Penalty u/s 11AC - Whether imposition of 100% penalty is justifiable when the duty as well as interest along with 25% of the duty has been deposited prior to the passing of the Order-in-Original dated July 20, 2009 by the adjudicating authority and/or denial of benefit provided under Section 11AC of the Act is wrong and contrary to law - Held that:- Divisional Preventive Staff conducted an inspection of the appellant-firm on July 30, 2008 during which, 20.100 MT quantity of Silicon Manganese involving Cenvat credit of ₹ 2,14,483/- was found deficit. The said fact was admitted by Darbara Singh, one of the partners of appellant-firm but he could not furnish any plausible explanation for the shortage. Accordingly, the respondent-Revenue issued a show cause notice dated January 30, 2009 which was duly replied. At the time of filing of reply to the show cause notice on February 10, 2009, the amount of duty and interest payable thereon along with 25% penalty was deposited much prior to the passing of the impugned order dated July 20, 2009 imposing penalty, of ₹ 2,14,483/- which is equal to the amount of duty of excise determined by the adjudicating authority. - whereas authority relied upon by learned Counsel for respondent-Revenue captioned as Dharamendra Textile Processor’s case (2008 (9) TMI 52 - SUPREME COURT) is not applicable to the facts of the case in hand. Even otherwise, learned Counsel for the respondent-Revenue has also failed to show any judgment taking a contrary view - Decided in favour of assessee.
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2014 (5) TMI 1038
Imposition of penalty - forged and fabricated licences - Supreme Court dismissed the appeal filed by the assessee against the decision of Delhi High Court [2011 (2) TMI 545 - DELHI HIGH COURT], wherein High Court held that the fact that no enquiry regarding the normal premium was made by the Department cannot justify the appellant’s stand of having purchased the advance licences bona fide at such a low price - This case related to fulfilling of certain export obligations under the licence and it was recorded, as a matter of fact, that the raw materials imported by the licence holders were sold before fulfilling the export obligations under the licence and that even the export proceeds had not been realized.
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2014 (5) TMI 1037
Penalty u/s 271(1)(c) - loss on account of currency fluctuation debited - Held that:- It is also true that the assessee has to evaluate the current position of such foreign exchange loan as on the last day of the previous year. If a liability is cast on the assessee on account of fluctuation in foreign exchange rate, the assessee has to provide for the same in its books of account. This is a mandatory provision for companies. The assessee has provided for such liability arising out of the currency fluctuation. In respect of such liability arising out of the currency fluctuation, treatment has to be given in two ways ; first, in respect of revenue items and second, in respect of capital items. In the present case, loss of RS.1,93,13,616 related to capital items and therefore, the said loss should have been added to the cost of assets acquired by the assessee utilising the foreign exchange loan as provided under section 43A. On the other hand, in its return, the assessee claimed this amount also as loss instead of claiming higher amount of depreciation. This is not a case of concealment of income or furnishing of inaccurate particulars. This is a case of a mistake or an oversight or at the best, a case of wrong claim. There is no scope to invoke section 271(1)(c) in the present case. - Decided in favour of assesse.
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2014 (5) TMI 1036
Land Acquisition by Government for public purposes namely the 'planned development of Delhi' - Objections under Section 5A of the Act 1894 - Principle of Natural Justice - High Court has quashed the land acquisition proceedings in view of the fact that the objections filed by the respondents-tenure holders under Section 5A of Land Acquisition Act, 1894, had not been considered by the statutory authorities in strict compliance of principles of natural justice - Held that:- Section 5-A of the Act 1894 confers a valuable right in favour of a person whose lands are sought to be acquired. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regard the public purpose as also suitability thereof must be preceded by application of mind having due regard to the relevant factors and rejection of irrelevant ones. The State in its decision making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act, 1894 confers a valuable important right and having regard to the provisions, contained in Article 300A of the Constitution of India has been held to be akin to a fundamental right. Thus, the limited right given to an owner/person interested under Section 5-A of the Act, 1894 to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away only for good and valid reason and within the limitations prescribed under Section 17(4) of the Act, 1894.
The Land Acquisition Collector is duty-bound to objectively consider the arguments advanced by the objector and make recommendations, duly supported by brief reasons, as to why the particular piece of land should or should not be acquired and whether the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Land Acquisition Collector should reflect objective application of mind to the entire record including the objections filed by the interested persons.
This Court in Gullapalli Nageswara Rao [1959 (8) TMI 42 - Supreme Court of India], held that “Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.” (Emphasis added) . In view of the above, the law on the issue can be summarised to the effect that the very person/officer, who accords the hearing to the objector must also submit the report/ take decision on the objection and in case his successor decides the case without giving a fresh hearing, the order would stand vitiated having been passed in violation of the principles of natural justice.
The facts are not in dispute. A huge chunk of land covering 11 villages was notified under Section 4 of the Act 1894 in 1980. A large number of people had filed objections under Section 5-A of the Act 1894 and it has been admitted on oath by the officer of the appellant department that in almost all these appeals, the tenure holders or their processor in interest had filed objections under Section 5-A of the Act 1894. This is also not in dispute that most of the objections were heard by one land acquisition collector and after his transfer, the report had been submitted by his successor. In Balak Ram Gupta v. Union of India [1987 (5) TMI 370 - DELHI HIGH COURT], full Bench of High Court of Delhi quashed the land acquisition proceedings in the said case exclusively on the ground that objections filed by the petitioner therein had been heard by one Land Acquisition Collector, however, the report was submitted by another. The land covered in these instant appeals stand covered by the same notification/declaration, same award and the objections had been dealt with by the same land acquisition collector and the report had been submitted by the same successor.
Admittedly, the appellants accepted that judgment and the same attained finality as the said judgment was never challenged by filing any S.L.P. before this court. In the light of aforesaid judgment, a large number of writ petitions had been allowed and the land acquisition proceedings arising out of the same notification/declaration had been quashed. Subsequently, in Abhey Ram & Ors. v. Union of India & Ors. [1997 (4) TMI 498 - SUPREME COURT],this Court dealt with the same issue arising out of the same acquisition proceedings and held that the judgment of quashing the acquisition proceedings would apply only to the land of those persons who had challenged acquisition proceedings and not to all the land covered by the said notification/declaration. The appellants had been under the impression that the judgment delivered by the full bench in Balak Ram Gupta , laid down the law applicable to other persons also whose land stood covered by the said notification/declaration.
In the instant cases, there had been challenge to the acquisition proceedings on various grounds including the manner in which objections under Section 5-A of the Act 1894 had been decided. In some cases, the High Court allowed amendment to the writ petitions and such order had never been challenged by the appellants. In a case where on the basis of submissions advanced in the court on behalf of the parties, the court summons the original record to find out the truth, pleadings remain insignificant. In the instant cases, the High Court was satisfied after examining the original record that objections had been dealt with in flagrant violation of law and in such a fact-situation, the prejudice doctrine for non-observation thereof would not be attracted. We do not see any cogent reason to differ from such a view. No judgment had been brought to our notice on the basis of which it can be held that the decision of the Constitution Bench of this Court in Gullapalli Nageswara Rao [1959 (8) TMI 42 - Supreme Court of India] is not a good law.
It is evident from the record that in respect of a major chunk of land which stood covered under the same Section 4 notification, the land acquisition proceedings had been quashed in a batch of 74 Writ Petitions having been filed before the Delhi High Court and the appellants, for the reasons best known to it, did not challenge the same and resultantly, the same has attained finality. For about a decade following the said judgment in Balak Ram Gupta v. Union of India & Ors. [1987 (5) TMI 370 - DELHI HIGH COURT], proceedings in other cases have also been quashed and those decisions have not been challenged and have thus, also attained finality. A large number of cases filed before this court and particularly SLP (C) Nos. 208, 211 & 212 of 2008 stood dismissed vide order dated 10.12.2008, as the petitioners did not take steps to serve the respondents therein as is evident from the Office Report dated 25.6.2013. In such a fact scenario, where in respect of major chunk of land, the land acquisition proceedings had been quashed long back and which has attained finality, it is beyond our comprehension as to whether the scheme of planned development of Delhi can be executed at such a belated stage in view of the fact that vacant land in continuous stretch may not be available.
In view of above, we do not see any force in these appeals even on merit and the same are liable to be dismissed. In view of the findings and particularly in view of the interpretations given to Section 24(2) of the Act 2013 in the judgments referred to herein above, it is not necessary to entertain any other ground whatsoever at the behest of the appellants. Thus, the appeals are devoid of any merit and are dismissed. - Decided against the appellant.
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2014 (5) TMI 1035
Waiver of pre deposit - Valuation - duty liability under the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - Held that:- Appellant is in manufacturing pan masala with or without tobacco and had filed declarations with the authorities as provided for in PMPM Rules. For the period in question, it is on record that the appellant was manufacturing pan masala with or without tobacco having different MRP’s like Re. 1.00, Re. 1.50, ₹ 2.00, ₹ 3.00 and ₹ 4.00 and had filed declarations in Forms 1 & 2 under Rules 6 & 9 of PMPM Rules. The lower authorities have come to a conclusion that during this material period, appellant had manufactured pan masala containing tobacco of MRP of ₹ 2.50 and had not declared the same specifically and hence duty liability was sought to be demanded from the appellants, which in our prima facie view, seems to be incorrect - assessee is required to pay the excise duty on a product manufactured of a retail sale price between ₹ 2.00 & ₹ 3.00 as determined by the authorities. Though there is a procedural requirement of filing the manufacturing activity under Forms 1 & 2 it would, in our view may not be of much consequence as the table hereinabove reproduced clearly indicates a range of MRP on which duty liability needs to be discharged. It is undisputed that during the material period appellant had discharged the duty liability as arrived under the PMPM Rules. Prima facie, additional duty demanded from the appellant seems to be unsustainable. - Stay granted.
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2014 (5) TMI 1034
Denial of promotion to Respondent - Tribunal has directed the appellant authorities that the respondent shall be governed by the provisions of DGQA Policy dated November 16, 2007 without incorporating the provisions of the impugned Policy dated April 23, 2010 and he would be considered for further promotions in terms of earlier Policy dated November 16, 2007 - Held that:- There is no breach of any service conditions under the Army Act and Rules. The non-selection of the petitioner is on account of the service conditions as mentioned in OM dated 28th October, 1978, as amended from time to time. Therefore, the objection raised by the learned counsel for the respondent, in this case is also upheld and consequently it is held that this Tribunal has no jurisdiction to interfere in this matter and direct the Principal Registrar to remit this case back to Hon'ble Delhi High Court to decide the matter in accordance with law.” When we traverse through the impugned order passed by the Tribunal in the instant case, we find that the aforesaid judgment in Major General S.B. Akali has been specifically taken note of. - Tribunal felt it appropriate not to rely upon on the said judgment, which it could not do so, having regard to the ratio in Rooplal's case (1999 (12) TMI 855 - SUPREME COURT). What is intriguing is the reasons for coming to a different conclusion.
Merely because the respondent is subject to Army Act would not by itself be sufficient to conclude that the Tribunal has the jurisdiction to deal with any case brought before it by such a person. It would depend upon the subject matter which is brought before the Tribunal and the Tribunal is also required to determine as to whether such a subject matter falls within the definition of 'Service Matters', as contained in Section 3(o) of the AFT Act. - it is required to be examined as to whether the relief claimed is entirely within the domain of DGQA or for that matter, the Ministry of Defence or it can still be treated as Service Matter under Section 3(o) of the AFT Act and two aspects are intertwined and inextricably mixed with each other. Such an exercise is to be taken on the basis of documents produced by both the sides. That has not been done. For this reason, we deem it proper to remit the case back to the Tribunal to decide the question of jurisdiction keeping in view these parameters. - Matter remanded back - Decided in favour of Appellant.
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2014 (5) TMI 1033
Denial of SSI Exemption - SSI exemption was denied on the ground that up to March 2010 using of brand name for the purpose of SSI exemption was not available - Held that:- The Central Government vide Notification No. 10/2013 - C.E. (N.T.) dated 02.08.2013 has provided retrospective exemption for clearances of plastic containers and plastic bottles meant for use as packing material by the person whose brand name such goods bear for the clearances from 16.06.2003 to 26.02.2010. The period involved in the present case is from July 2006 to March 2010, which is covered by the said notification for the purpose of availing the duty exemption. - Following decision of - M/s. Ajay Plastics Versus CC, CE&ST, Hyderabad-IV [2015 (1) TMI 295 - CESTAT BANGALORE], M/s. Anuradha Industries [2015 (4) TMI 275 - CESTAT BANGALORE] and M/s Pragya Packaging Pvt. Ltd. [2015 (4) TMI 274 - CESTAT BANGALORE] - Decided in favour of assessee.
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2014 (5) TMI 1032
Deduction u/s 54B - new land purchased by the assessee was in the name of Nirmal Singh that is the son of the assessee - Held that:- assessee is basically an agriculturalist and is aged about 75 years. Further the land which was sold by the assessee was in the joint name of the assessee along with his son, which means the son was also part owner of the land - Even if we consider the decision of Jai Narayan v. ITO [2007 (8) TMI 295 - PUNJAB AND HARYANA HIGH COURT] the court has simply stated that the word "assessee" occurred in section 54B must be interpreted in same manner as occurring with the context and subject of its usage. Even from that angle since the son of the assessee was also joint owner of the land, which was sold (because name of the son was there in the land which the assessee was holding though beneficial owner is only the assessee). Therefore in our opinion, if the land was purchased in the name of the son of the assessee because of old age and other technical reasons, the assessee would still be entitled to deduction under section 54B of the Act. Accordingly we set aside the order of the learned Commissioner of Income-tax (Appeals) and direct the Assessing Officer to allow deduction under section 54B of the Act. - Decided in favour of assessee.
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2014 (5) TMI 1031
Capital receipt or Revenue receipt - Corpus fund - Held that:- The capital fund of a charitable society is built-up mainly by the life membership fee. This is more true in respect of associations like assessee. The assessee is a society of practising anaesthesiologists. Therefore, among other items, the life membership fee contributed by the members is also capital fund of the society. There should not be any doubt that the life membership fee always remains as contribution to the corpus fund of the society. The amount received by the society towards award fund is a specific fund. The contribution received to that specific fund is accumulated as capital fund in the accounts of the assessee-society and interest income arising out of that fund is used by the society for giving awards. Therefore, it is to be seen that contribution made towards award fund is not a voluntary donation conceived under section 12, but, corpus donation explained in section 12(1) of the Income-tax Act, 1961. - The said award fund stands separate and even though technically not termed as corpus fund, it is in the nature of capital fund and by virtue of that nature, it always stands in pari passu with capital fund of the assessee-society.
This is the same case with the amounts received towards IJA fund and WSJA fund. Those funds are specifically created for procuring journals, books and other professional materials for the development of practising anaesthesiologists. - all the four items objected to by the Assessing Officer are essentially part of the capital fund and therefore, have to be considered as corpus of the assessee-society. These are all specific funds for fulfilling specific objectives. Further, all those funds always remain as capital funds and those funds are used only for the purpose of fulfilling the objectives for which those separate funds are constituted. - lower authorities have grossly erred in treating the above stated four funds as voluntary contributions in the nature of income as provided under section 12 of the Income-tax Act, 1961. We set aside the findings of the lower authorities. We direct the Assessing Officer to treat the four funds as capital funds and exclude them from the computation of income for the impugned assessment year. - Decided in favour of assessee.
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2014 (5) TMI 1030
Disallowance of employees' contribution to provident fund and ESI - assessee could not furnish the approval for deduction u/s 35(2AB) - Held that:- If the claim of the assessee u/s 35(2AB) is allowed, then the assessee may not be eligible for further deduction u/s 35(1) of the Act. In this case, the claim of the assessee u/s 35(2AB) was not allowed. Therefore, the provisions contained in section 35(2AB) may not prevent the assessing officer to consider the claim of the assessee u/s 35(1) of the Act. Hence, in exercise of the appellate powers of this Tribunal, the alternative claim of the assessee u/s 35(1) of the Act is remanded back to the file of the assessing officer. The assessing officer shall consider the claim of the assessee u/s 35(1) and decide the same in accordance with law after giving reasonable opportunity of hearing to the assessee. - Decided against Revenue.
Disallowance u/s 14A - assessee has not apportioned any expenditure towards this investment and earning of income therefrom - Held that:- even though no expenditure was incurred by the assessee, the Income-tax rules provide for computation of expenditure with regard to the investment made for earning exempted income. The earning of income or actual incurring of expenditure is immaterial for application of Rule 8D of the IT Rules. Therefore, this Tribunal cannot appreciate the contention of the assessee that there was no expenditure claimed. Rule 8D would come into operation irrespective of the claim of the assessee for expenditure. Therefore, this Tribunal do not find any infirmity in the order of the lower authorities. - Decided in favour of Revenue.
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2014 (5) TMI 1029
Income or not - Whether excise duty refund claim made by the assessee is income under the Act u/s 28(iii) - Held that:- CIT(Appeals) held that when the business of the assessee is not yet set up then the question on assessing income of the assessee company to the Previous Year does not arise. Even otherwise the excise duty on the question was of material used for construction/erection of the project, which is in the capital filed and the refund of the same goes to reduce the cost of the assessee. Hence we uphold the order of the First Appellate Authority and dismiss this appeal by the Revenue. - Decided against Revenue.
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2014 (5) TMI 1028
Disallowance of depreciation - Lease rental income - Income from house property - Held that:- Since both parties have accepted that the assessee herein has leased out only building during the years relevant to the assessment years 2007-08 and 2009-10, the rental income is assessable under the head "Income from house property" only. Hence, we do not find any infirmity in the decision of the learned Commissioner of Income-tax (Appeals) in confirming the assessment of rental income under the head "Income from house property" - Admittedly, the assessee is submitting certain facts which were not considered by the Assessing Officer. According to the learned authorised representative the assessee has leased out building and plant and machinery during the year relevant to the assessment year 2004-05. However, the assessment order is silent about the receipt of rental income. It is seen that the Assessing Officer has disallowed the depreciation only for the reason that the assessee did not carry on any manufacturing activity and hence the assets were not put to use. If the assessee has let out the building and plant and machinery together, then the decision rendered by this Bench of the Tribunal in the assessee's own case for the assessment year 2005-06 is applicable to this year. However, as stated earlier, the Assessing Officer has not examined these aspects. - Matter remanded back - Decided partly in favour of assessee.
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2014 (5) TMI 1027
Disallowance of unabsorbed depreciation - Whether it is proper on the part of the Assessing Officer to disallow a sum of ₹ 13,71,60,209 from unabsorbed depreciation eligible to be carried forward and set off against future profits of the assessee-company - Held that:- Ongoing through the orders of the Assessing Officer and the Commissioner of Income-tax (Appeals), we find that both authorities have considered different case law not relevant for the issue in hand. It is true that for an interregnum period, the eligibility of unabsorbed depreciation to be carried forward was limited for a period of eight years. But, the old position that unabsorbed depreciation becomes the current depreciation under section 32(2) and therefore eligible for carry forward and set off without any limitation, was restored by the amendment brought in with effect from the assessment year 2002-03.
When the quantum of unabsorbed depreciation is computed after the amendment, whatever balance of unabsorbed depreciation is available to the credit of the assessee, must be determined as unabsorbed depreciation eligible for carry forward and set off. The interregnum restriction of limiting the claim for an eight-year period does not take away the right of an assessee to claim the balance of unabsorbed depreciation, forever. The balance of unabsorbed depreciation revives back into life and becomes eligible for carry forward and set off along with the other part unabsorbed depreciation available to the credit of the assessee. - Decided in favour of assessee.
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2014 (5) TMI 1026
Determination of net profit rate - Rejection of books of accounts - Held that:- Authorities below have applied excessive net profit rate of 6.5% against total receipts before allowing interest and salary to the partners. History of the assessee clearly suggests that the assessee has reasonably declared profit rate of 2.49% as against 2.66% of the preceding assessment year. The total receipts of the assessee have admittedly exceeded very high as against the receipts declared in the last year. Therefore, when the receipts have exceeded, there is bound to be fall in the net profit. The explanation of the assessee also suggests that labour/wages paid was a necessary component for the purpose of executing the contract.
Profit rate applied by the authorities below at 6.5% is very excessive and unreasonable. The assessee has agreed for application of net profit rate of 4% of the gross receipts before salary and interest to the partners before the AO, which in our view is most reasonable and appropriate considering the previous history of the assessee and facts and circumstances of the case. Therefore, to meet the ends of justice, we modify the orders of the authorities below and direct the AO to apply net profit rate of 4% of the gross receipts before salary and interest to the partners for the purpose of estimating business income of the assessee - Decided partly in favour of assessee.
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2014 (5) TMI 1025
Determination of rate of tax - At what rate the item “Aluminum conductors" was liable to be taxed under the provisions of The Assam Value Added tax Act 2003 - Held that:- Mere perusal of section 105 and specially sub section 2 read with proviso to sub section (1) would indicate that Commissioner is invested with quasi judicial powers to determine the question/s specified in sub section (a) to (j). A right to raise the questions for its determination is given to those specified in Sub Section (2). This sub-section equally cast a duty on the Commissioner to afford a reasonable opportunity of hearing to the person who has applied for determination. Similarly, proviso to sub section (1) empowers the Commissioner to hold an inquiry at his discretion and while holding such inquiry, he is empowered to take assistance of an officer appointed for the purpose to enable him to decide the question.
Commissioner did not keep these requirements in mind while passing the impugned order, in as much as, he neither held any inquiry nor sought any assistance from any officer and nor assigned his reasons for coming to a conclusion. In other words, the impugned decision did not appear to have been rendered after following the procedure prescribed in Section 105 because it did not contain any reason/justification as to how and on what basis and material, the Commissioner could come to a conclusion that the "Aluminum Conductor" was taxable at the rate of 12%. The so-called reason assigned cannot be said to be reasons much less justifiable to sustain the order. We cannot uphold the impugned order. - Decided in favour of assessee.
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2014 (5) TMI 1024
Waiver of pre deposit - reason for imposing condition not stated - Held that:- The requirement of giving reasons, albeit minimal in stay orders, especially in matters of taxation cannot be understated. The duty to give reasons for a decision is one that is conducive to fairness in judicial/quasi judicial/administrative action. Reasons for a decision are required to address the primary concern of an assessee in knowing what weighed with the authority in question while deciding the issue against him. The practice accords with the concept of fairness in action and recognises the dignity of the individual whose rights are affected by the decision in question. In taxation matters where the Constitution of India itself gives ample indication that the rights of a citizen against arbitrary taxation are zealously guarded, I would think that the requirement of giving reasons to support even a conditional order of stay would not tantamount to unduly burdening the administration. The law has necessarily to strike a balance between the necessity to govern and the rights of those governed. - it would only be just and proper for this Court to set aside Ext.P7 order of the 2nd respondent and direct the said respondent to consider the stay application preferred by the assessee afresh after affording him an opportunity of being heard in the matter - Decided in favour of assessee.
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2014 (5) TMI 1023
Scope of the term Motor Vehicle with regard to repair and management service - whether repair of part of vehicle is amount of repair of vehicle as such - Exclusion of the maintenance and repair of motor vehicle from service tax - period up to 30.4.2006 - Extended period of limitation - appellant engaged in the business of reconditioning engines and parts thereof and repairs of other parts of vehicles of all brands - appellant contended that they were in bona fide believed that they had no tax liability in respect of the activities in question and hence did not include the relevant particulars in their returns.
Held that:- The word exclusion apparently means excluding any maintenance or repair relating to a motor vehicle. A motor vehicle has several parts and if only a part of the motor vehicle requires maintenance or repair, can it be said that it is not maintenance or repair of a motor vehicle? - It is not in dispute that if the motor vehicle was brought to the service centre of the appellant and they themselves had dismounted the engine and repaired it and then refitted it to the motor vehicle, they are entitled for the exclusion. But exclusion is not given by stating that dismounting has taken place at a different place. Such a view, according to us, cannot be accepted on account of the fact that motor vehicle apparently includes all its parts as well. Without its individual parts, it does not become a motor vehicle. Such part cannot be used for any other purpose as well and it is normally fitted to the same vehicle from which it is dismounted. Therefore, if any service centre or maintenance centre or workshop does maintenance or repairs to any part of the motor vehicle, it is also entitled to get the benefit of exclusion, as provided under Section 65(64) of the Finance Act, 1994. - Decided in favor of assessee.
When the Statute clearly intended to exclude motor vehicle, it is apparent that it excludes parts of motor vehicle also. If such an interpretation is not given, the very purpose of such exclusion will be rendered ineffective. - Decided in favor of assessee.
Extended period of limitation - Held that:- Adjudicating authority found that the assessee has not furnished all material details in their ST-3 returns and such details came to be disclosed only as a result of audit conducted by the department. This is a finding of fact, which we do not think can be ignored and there is no material to come to a different finding. In that view of the matter, we are of the view that the department was justified in invoking the extended period of limitation. - Decided against the assessee.
Levy of penalty - Held that:- if the appellant has a case that repair of engines and other parts of a motor vehicle are excluded from the liability to pay service tax, definitely the issue ought to have been decided by a proper authority. Unless such a decision is taken in accordance with the procedure prescribed, it cannot be treated that there is a deliberate attempt to evade tax. Therefore, the imposition of penalty for that reason was itself bad in law. - no penalty - Decided in favor of assessee.
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2014 (5) TMI 1022
Waiver of pre deposit - Quantum of deposit - Held that:- primary dispute that arises for consideration in this appeal relates to the quantum of pre-deposit to be made by the appellant as a condition precedent for the hearing of the appeal. After hearing learned counsel for the appellant and keeping in view the totality of the facts and circumstances of the case, the order of the Tribunal requiring the appellant to deposit Rs. 5 lacs as a condition precedent for hearing of the appeal appears to be just and reasonable. we do not find any reason to reduce the quantum of amount to be deposited as a condition precedent for hearing of the appeal - No substantial question of law arises - However, time period to make pre deposit is extended.
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2014 (5) TMI 1021
Maintainability of writ petition - Assessee being Local Authority contended that it is not able to recover the amount from the parties - Service Tax on Bus stand fee, Advertisement tax, and fee collected on letting out of immovable property - Held that:- it is clear that the Bench specifically observed that the case of a person who did not choose to avail the statutory remedy within the specified time, is never seated on a better position than a person who approached this Court directly by filing a writ petition instead of availing a statutory remedy before expiry of the time and driven out relegating to avail the statutory remedy declining interference under Article 226. Undisputedly, the petitioner was simply sleeping over the issue.
Whether the petitioner has approached this Court at least within 'reasonable time', after expiry of the statutory period for filing the appeal - Held that:- even if it is presumed that, no statutory remedy is available, could the matter be agitated before this Court at this distance of time; is the point to be considered. Obviously, the impugned orders (Exts.P3 and P4) are dated 24.05.2012 and 23.08.2012 respectively, whereas the writ petition has been filed only about 1= years after passing the said orders. This being the position, it cannot but be held, that the petitioner has not approached this Court within a reasonable time, so as to call for interference by this Court in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India. - Decided against assessee.
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2014 (5) TMI 1020
Demand of service tax - Management/maintenance/repair service - maintenance contract with supply of goods - assessee contended that entire amount relates to supply of goods - Re quantification of demand - Exclusion of value of goods - Held that:- both Revenue as well as the appellants have not segregated the amounts received towards service and supply of goods and quantified the demand correctly. That being the position, the matter in any case has to be remanded. At the same time, it would be unfair to the Revenue if the remand order is passed without requiring appellants to make any pre-deposit especially in view of the fact that they have made a claim that entire amount relates to supply of goods which does not seem to be based on facts. In view of the above, while we consider it appropriate and in the interest of both the sides that the matter should be remanded at this stage itself rather than granting a stay subject to pre-deposit and passing a final order thereafter, yet we consider that appellant should be put to terms. Accordingly, the appellant is required to deposit an amount of Rs.50,00,000 within eight weeks and report compliance to the Commissioner (original adjudicating authority) who after noting compliance shall proceed to adjudicate the matter afresh after giving reasonable opportunity to the appellants to present their case - Decided partly in favour of assessee.
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9911796707
