|
Advanced Search Options
Case Laws
Showing 241 to 260 of 1387 Records
-
2016 (2) TMI 1152
Service tax or VAT - contract with the ONGC for digging directional wells - stand of the State is that transactions entered into by the petitioner is for hiring of machineries which amounts to sale within the meaning of Section 2(25)(d) of the Tripura Value Added Tax Act, 2004 read with Rule 7(2) of the Tripura Value Added Tax Rules, 2005 and exigible to tax under Section 4(2) of the Tripura Value Added Tax Act, 2004 - The case of the petitioner is that this is not a contract for hiring of machinery but for hiring of services.
Whether the transactions entered into by the petitioner amount to transfer of right to use any goods and, therefore, they are exigible to tax in terms of Section 4(2) of the Tripura Value Added Tax Act, 2004 read with Rule 7 of the Tripura Value Added Tax Rules, 2005?
Held that: - A bare perusal of the provisions of the contract clearly show that the contract is basically for providing of services inasmuch as highly specialized machinery along with specialized staff is provided and the rates not only include the rates for hiring of machinery but also for the staff and the services provided by the staff.
After carefully going through the contract we are of the view that the contract is mainly for hiring of services. There may be a very small element of transfer of right to use goods but according to us the predominant portion of the contract relates to hiring of services and not to transfer of right to use the goods. We are aware that the dominant nature test is not to be used in composite contract falling within the ambit of Article 366(29A) but from the reading of the contract it is more than apparent that the intention of the parties was to treat the contract as a contract for hiring of services. Moreover, it is impossible to divide the contract into two separate portions. Every element of the digging directional wells and Mobile Drilling Rig service contains a major element of provisions of services. In such an eventuality it is virtually impossible to divide the contract.
The petitioner has also been paying service tax and if the State is allowed to tax any portion of the value of the contract then there has to be a proportionate refund of the service tax to that extent - The petitioner or the ONGC cannot be made liable to pay both the taxes for the same transaction.
The transactions do not amount to sale within the meaning of the TVAT Act, 2004. Therefore, the petition has to be allowed - decided in favor of petitioner.
-
2016 (2) TMI 1151
Disallowing exemption u/s 11 - appellant has not followed its objectives in letter & spirit without specifying any basis that objective of the appellant falls in the proviso to Sec. 2(15) i.e. appellant is carrying on activity in the nature of trade, commerce or business - Held that:- Since as stated above the facts in the present case are identcial to that in the case of Hoshiarpur Improvement Trust (2015 (9) TMI 902 - ITAT AMRITSAR), respectfully following the same we hold that the assessee trust is carrying out charitable activity of advancement of public utility and the business activity carried out by it are incidental to the attainment of its main object and thus the proviso to section 2(15) is not attracted in the assessee case. We therefore hold that the assessee is entitled to claim exemption u/s 11. - Decided in favour of assessee.
-
2016 (2) TMI 1150
Misdeclaration of imported goods - classification - poultry/fish/shrimp feed making machinery and other related equipment and accessories for feed manufacturing plant - Held that: - even though the goods are wrongly described/declared in the Bills of Entry, this itself does not result in short payment of duty. It is also observed that allegation of misdeclaration of description of goods is not sustainable in three Bills of Entry (Sl. Nos. 3, 4 and 5) because the declared description ‘Animal feed production equipment’ and ‘machinery for preparing animal feeding stuff’ are covered under the description: ‘poultry/fish/shrimp feed making machinery’.
Whether the applicant was obliged to declare the intended use of the machineries-industrial use or otherwise? - Held that: - as per HSN Explanatory Notes, if the goods are for industrial use, the classification is 8479, instead of 8436. The Bench finds that the applicant is a regular importer and is supposed to be aware of importance of HSN Explanatory Notes in the matter of classification. As such, there is a lapse on the part of the applicant to this extent and therefore the provisions of Section 111(m) and consequently Section 112(a) of the Customs Act are attracted.
Short payment of interest and duty - Held that: - the Bench holds that the applicant is liable to pay the duty demanded in the SCN along with the applicable interest. The Bench also observes that the applicant has co-operated in its proceedings - In terms of sub-section (8) of Section 127C this order of settlement shall be void if the Bench finds, at any time, that the subject settlement has been obtained by the applicant by fraud or misrepresentation of fact.
Appeal disposed off.
-
2016 (2) TMI 1149
Appeal admitted on the substantial question of law - Whether the CESTAT is right in holding that the adjudicating authority would not have considered the issue of bar of unjust enrichment when the CESTAT vide earlier order dated 29.12.2004 had remanded back the matter only to consider the documents produced by the assessee to ascertain their entitlement of refund? - Whether the CESTAT is right in holding that bar of unjust enrichment is not applicable to the facts and circumstances of the present case and the assessee is entitled for refund?
-
2016 (2) TMI 1148
Revision u/s 263 - Understatement of receipts - Held that:- When the ground of revision u/s. 263 is not mentioned in the show cause notice issued u/s. 263, that issue cannot be the subject matter of revision proceedings in the order passed u/s. 263. Hence the addition proposed towards understatement of receipt of ₹ 1,20,49,196/- is not in accordance with law. Accordingly, the order passed by the ld.CIT u/s. 263 is modified to this extent.
Addition u/s 40(a)(ia) - addition towards various expenses for non-compliance of TDs provisions - applicability of second proviso to section 40(a)(ia) - Held that:- We find that if the payees have included the subject mentioned receipts in their books/returns of income, then second proviso to section 40(a)(ia) of the Act should have to be invoked and no disallowance u/s. 40(a)(ia) of the Act could be made. . We also find that the provisions of section 40(a)(ia) of the Act has been held to be retrospective in operation by the decision of the Hon’ble Delhi High Court in the case of CIT vs Ansal Land Mark Township (P) Ltd reported in (2015 (9) TMI 79 - DELHI HIGH COURT). Thus we deem it fit and appropriate, to set aside the issue to the file of the ld.AO to decide the impugned issue u/s. 40(a)(ia) in the light of applicability of second proviso to section 40(a)(ia) as mentioned herein above and in the light of said decision of the Hon’ble Delhi High Court in the case of Ansal Land Mark Township (P) Ltd (supra).
-
2016 (2) TMI 1147
Disallowance u/s.40(a)(ia) on account of short deduction of tax - Held that:- We are faced with two diagonally opposite views about applicability of the provisions of section 40 (a)(ia)of the Act, we are taking the view which is in favour of the assessee that expenses are not liable to be disallowed u/s.40(a)(ia)on account of short deduction of tax. We are following the judgment of Samir Tekriwal (2000 (2) TMI 40 - BOMBAY High Court)- Decided in favour of assessee.
-
2016 (2) TMI 1146
Addition made under section 43B - assessee has paid service tax in advance before availing the corresponding services - Held that:- The assessee has debited the amount of ₹ 22.91 crores to the profit and loss account pertaining to the assessment year under consideration also. Since the amount of ₹ 22.91 crores has been allowed in the assessment year 2006-07 and dispute relating to the same has attained the finality, the assessee is precluded from claiming the same again in the assessment year 2007-08. Accordingly, we are of the view that the AO was justified in disallowing the same in the year under consideration. Accordingly, we set aside the order of ld.CIT(A) passed on the issue relating to ₹ 22.91 crores and direct the AO to add the same on substantive basis.
With regard to the balance amount of ₹ 2.93 crores added by the AO, we notice that the ld. CIT(A) has restored the matter to the file of the AO for considering the same afresh in the light of decision rendered by him in the assessment year 2006-07. Since the matter has been restored to the file of the AO for fresh consideration, we do not deem it necessary to interfere with his order on this issue.
In the assessment year 2008-09, we notice that the ld. CIT(A) has restored the matter to the file of the AO with a direction to examine the same afresh in the light of the decision rendered by him in the assessment year 2006-07. Hence, we decline to interfere with the order of ld. CIT(A) in this year also as the AO has been directed to examine the issue afresh.
Disallowance made u/s 14A - Held that:- Considering the fact that the assessee has made investment in one company only, that the investment was made long back, that the assessee has received dividend from that company only, we are of the view that the disallowance computed at 0.5% of the investment value of shares is reasonable, in the facts and circumstances of the case.
Disallowance of prior period expenses - Held that:- It is a well settled proposition of law that the income relating to one year cannot be assessee in any other year. Under the same principle, the expenditure relating to one year cannot be claimed in any other year. Both the principles shall have exception, if it is expressly provided in the Act. Hence, we are of the view that the tax authorities are not justified in disallowing entire amount of prior period expenses, while assessing the entire amount of prior period income, without bringing support of any of the provisions of the Act. Accordingly, we are of the view that the assessee was justified in computing the disallowance by netting off the prior period income against the prior period expenditure. We further notice that the assessee has offered net income in assessment year 2007-08, i.e., the prior period income was more than the period expenditure. We direct the AO to accept the disallowance/ computation made by the assessee in this regard.
Addition made u/s 145A in respect of MODVAT amount- Held that:- We set aside the order passed by Ld CIT(A) on this issue in assessment years 2007-08 to 2010-11 and restore them to the file of the AO with the direction to examine the same afresh in all the four years under consideration, by duly considering the information and explanations furnished by the assessee. With regard to the deposit made with Port Trust, we make it clear that the same is not includible in the computation made u/s 145A of the Act, if it does not fall in the category of tax, duty, cess or fee levied under any law. Hence, the same shall be liable to included in the adjustments made u/s 145A of the Act, only if it is shown that the payment was made under authority of any law. Further, if the deposit so made is refundable to the assessee, then also the question of including the same u/s 145A does not arise.
-
2016 (2) TMI 1145
Method of computation of ALV - AO invoked the provisions of section 23(1)(a) of the Act on the premise that the annual value of the property deemed to be the sum for which the property might reasonably be expected to let out from year to year, therefore, the municipal valuation is not binding upon the Department - Held that:- CIT (A) has rightly relied on the binding judgment of the Hon’ble jurisdictional High Court Smitaben N Ambani vs. CWT [2009 (1) TMI 430 - BOMBAY HIGH COURT] wherein it was held that rateable value of the properties determined by the Municipal Authorities shall be the yard stick. It is also noted that in the cases of Shri Satyapal Jain (husband of the assessee) for A.Y. 2006-07 and other family members the amount is to be taxed u/s 23(1)(a) of the Act and would be rateable at municipal value. In view of this uncontroverted position, appeal of the assessee is allowed.
-
2016 (2) TMI 1144
Transfer of shares - Held that: - issue notice to the respondent company - the respondent company is restrained, till the next date of hearing, from alienating, selling, transferring and / or creating third party interest in its immovable properties save and except in the usual and normal course of business.
-
2016 (2) TMI 1143
Proportionately allowing the deduction u/s. 80IB(10) - Tribunal justifcation in upholding the decision of the CIT(A) in proportionately allowing the deduction u/s. 80IB(10) of the I T Act, 1961 out of profits in respect of wings “A” to “F” - Held that:- The impugned order of the Tribunal while dismissing the Revenue's appeal, had followed the decision of this Court in CIT v/s. Vandana Properties [2012 (4) TMI 54 - BOMBAY HIGH COURT] Learned Counsel further states that the present appeal memo has been filed only in view of the fact that the Revenue has challenged the decision of this Court in Vandana Properties (supra), in the Apex Court and the same is awaiting disposal.
The question as formulated stands concluded in favour of the Respondent-Assessee and against the Revenue.
-
2016 (2) TMI 1142
Notification dated 17th September, 2015 - date of notification coming into force - When did the notification dated 17th September, 2015 issued under Section 25(1) of the Customs Act come into force? - Held that: - A reading of the Sub-section (4) as above may lead to the inference that every notification issued under sub-section (1) or sub-section (2A) shall come into force on the date of its issue by the Central Government for publication in the official gazette. This reading may appear to be slightly in conflict with sub-section (1), which provides that notification in the official gazette is required to grant the exemption. But this is not a conflict because the provision in sub-section (1) is qualified to that extent by sub-section (4). The notification comes into force when it is issued for publication in the official gazette. It is not dependent upon any further act, or activity. The mandate that the notification shall also be published and offered for sale by the Directorate of Publicity and Public Relation by the Board on the date of its issue by the Central Government is a follow up action. But nonetheless that follow up action has to be performed on the date of issue of the notification by the Central Government.
There is thus ample evidence to hold that the mandate that the notification issued under sub-section (1) or sub-section (2A) shall also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relation of the Board was duly complied with.
The writ petitioner cannot succeed because there is evidence which has remained uncontroverted to show that the notification was duly published in the official gazette on 17th September, 2015 and the notification was also offered for sale on 17th September, 2015 by the Directorate of Publicity and Public Relation of the Board.
The notification came into force on 17th September, 2015 - appeal dismissed - decided against appellant.
-
2016 (2) TMI 1141
Evasion of ADD - import of 14” and 21” Coloured Picture Tube - overvaluation of the imported goods - application to Settlement Commission - Held that: - From the scrutiny of the SCN, the settlement application and the replies to the notice of proceeding it was noticed that present dispute involves various inter-linked companies, in which M/s. Videocon India Ltd. was the main company. As M/s. Videocon India Ltd., they have not come for settlement; the issue that was required to be examined was the maintainability of the settlement applications of other applicants before the Commission, in absence of M/s. Videocon India Ltd. In view of the same it was decided as to whether the applications may be allowed to be proceeded with or not.
The Bench has carefully gone through the record and submissions made by both the sides. The Bench observes that M/s. Applicomp India Ltd. (Applicant No. 1) has pleaded that a sum of ₹ 5 crores deposited by M/s. VIL may be treated as payment towards their duty liability because the VIL has deposited this sum on their behalf. The Revenue has contested this fact and stated that the deposit made by M/s. VIL was towards the duty liability of M/s. VIL only. In this same SCN, a duty of ₹ 127.30 crores has been demanded from M/s. VIL. M/s. VIL and M/s. Applicomp India Ltd. are two separate legal entities and therefore, the liability of M/s. Applicomp cannot be adjusted against the payment made by M/s. VIL. Thus, M/s. Applicomp India Ltd. has not fulfilled the condition (c) of the First proviso to Section 127(B)(1) of the Customs Act, 1962 and is liable to be rejected on this ground alone - The Bench has also observed that the applicant is not interested in settling of their case and is asking adjournments on one ground or other. It appears that the applicants are adopting this tactic to delay the proceedings before the Commission. The Commission is statutorily bound by the time limit laid down by the statute to settle the cases and cannot indefinitely postpone the matter without any solid and cogent reasons. The whole tactic adopted by the applicant is to simply delay the proceedings and to gain time and for that they give different excuses at different time. The applicant has not co-operated with the Commission in disposing of the case in accordance with the provisions of the Customs Act.
The Bench, by virtue of the power vested in it in terms of Section 127-I(1) of the Customs Act, 1962, sends the case back to the respective adjudicating authorities for adjudication in accordance with the provisions of law. The adjudicating authorities will decide the case as if no application for settlement has been filed by the applicants in this regard - matter remanded.
-
2016 (2) TMI 1140
Offence under Section 138 of the Negotiable Instruments Act - non compliance of provisions of Section 202 of Cr.P.C. - mandatory provision to hold a preliminary enquiry contemplated by section 202 Cr.P.C. - Held that:- Section 142 of the Negotiable Instrument underlines the procedure for taking cognizance of offences under the Act. Departing from the general rule that the criminal law can be set in motion by any person either by written complaint or oral information, the provision of section 142 of the Act mandates that the complaint under section 138 N.I.Act should be in writing and should be filed and signed by the payee or the holder in due course, as the case may be, before the concerned court. There is thus no scope to refer the case for police investigation or enquiry. The exception engrafted in section 142 serves as a safeguard against false and frivolous complaints and thus eliminates the need to hold a preliminary enquiry contemplated by section 202 Cr.P.C.
In the complaints under section 138 NI Act, the Magistrate is not obliged to examine the complainant under section 200 Cr.PC and can rely on affidavit filed along with the complaint. The Magistrate can take cognizance and issue summons if upon scrutinizing the complaint, the affidavit and the documents he is satisfied that prima facie offence has been made out against the accused.
Section 143 of the Act empowers the Court to try cases under the Act summarily and thus, reinforces that every trial shall be conducted as expeditiously as possible. Sub-section (3) of Section 143 mandates that the trial would proceed, as far as practicable, on a day-to-day basis and sub-section (4) of the section requires the Magistrate to make the endeavour to conclude the trial within six months from the date of filing of the complaint. Section 144 makes the process of service of summons simpler and cuts down the long time ordinarily consumed in service of summons. whereas Section Section 146 contemplates that bank slip or memo having official mark denoting that the cheque has been dishonoured, shall constitute prima-facie evidence of dishonour of the cheque, unless and until, such fact is disapproved. The legislature has inserted these provisions and has provided a special procedure with an object of expeditious disposal of the cases under section 138 of the Act. The very object of the Act will stand defeated if the enquiry under subsection (1) of section 202(1) of Cr,P.C. is held to be mandatory in complaints under section 138 of N.I.Act.
-
2016 (2) TMI 1139
Reference of matter to DVO - non rejection of books of accounts - unaccounted investment - Held that:- As rightly contended by the ld. Counsel for the assessee, when the assessee is maintaining books of account, the Assessing Officer cannot refer the matter to the DVO without rejecting the books of account maintained by the assessee. It is also not in dispute that the assessee has sold the flats and majority of the purchasers of the flat occupied the same. Therefore, the improvement made by the respective purchasers of the flat has to be considered only in the hands of the respective purchasers and not in the hands of the assessee. As observed by the CIT(A), when the purchasers of the flats engaged the contractors to make improvement in the flats, this Tribunal is of the considered opinion that no addition can be made in the hands of the present assessee. In view of the above, this Tribunal do not find any reason to interfere with the order of the CIT(A). - Decided against revenue
-
2016 (2) TMI 1138
Clandestine removal - demand of duty with penalty - Held that: - The evidentiary value of all the grounds adopted by the Revenue and contested by the appellant can be taken note of at the time of final disposal of the appeal. Suffice it to say that at this stage, the appellants have not been able to make out a good prima facie case in their favour so as to allow the stay petitions unconditionally - appellant is directed to deposit 50% of demand.
-
2016 (2) TMI 1137
Seeks extension of time so as to enable the whole time member of SEBI to pass an order in compliance with the orders passed by this Tribunal from time to time - Held that:- Counsel for SEBI, on instructions, states that the whole time member of SEBI would hear the appellants and pass appropriate order on before February 29, 2016 as stipulated in our order dated October 16, 2015.
In view of above we see no reason to entertain the Miscellaneous Application.
-
2016 (2) TMI 1136
Change of venue of meetings of the Secured and Unsecured Creditors of the applicant Company - Held that:- Having heard learned counsel for the applicant and upon consideration of the submissions advanced, the following order is passed: Paragraph 4(i) of the order dated 07.12.2015, passed by this Court in Company Application No.374 of 2015, is modified to the extent that the venue of the meetings shall now be at AMA Hall, AMA Complex, ATIRA, Dr. Vikram Sarabhai Marg, Ahmedabad 380015.
-
2016 (2) TMI 1135
Refund of unutilised CENVAT credit - appellant failed to carry out exports - applicability of Rule 5 of Cenvat Credit Rules, 2004 - Held that: - When law itself does not deny grant of refund of unutilised credit there shall be no question of limitation to apply - reliance placed in thew case of 2011 (9) TMI 964 - ANDHRA PRADESH HIGH COURT [2011 (9) TMI 964 - ANDHRA PRADESH HIGH COURT], where it was held that the Rule entitles the manufacturer to refund of the Cenvat Credit where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification - appeal allowed.
-
2016 (2) TMI 1134
Sanction of the Scheme of Arrangement - dispensation of meeting - Held that: - this Court dispensed with the requirement of convening the meeting of the Equity Shareholders, Secured Creditors and Unsecured Creditors of the petitioner Company, who had given their consent to the proposed Scheme - petition admitted.
-
2016 (2) TMI 1133
Dispensation of meeting - Held that: - The meeting of the Equity Shareholders of the applicant Company is dispensed with in view of the consent letters of all the Equity Shareholders and Chartered Accountant’s certificate certifying the list of Equity Shareholders - meeting of the Secured Creditor of the applicant Company is dispensed with in view of consent letters of the entire Secured Creditors and Chartered Accountant’s certificate certifying the number of Secured Creditors - meeting of the Unsecured Creditors of the applicant Company is dispensed with in view of consent letters of the entire Unsecured Creditors and Chartered Accountant’s certificate certifying the number of Unsecured Creditors - application allowed.
............
|
9911796707
