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Showing 241 to 260 of 1288 Records
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2014 (9) TMI 1054
Withdrawal of approval status of Institute - All India Council for Technical Education (for short 'AICTE') decided to place the petitioner-institute under "withdrawal of approval status" for 2014-15 and requested the Principal Secretary (Higher and Technical Education) Delhi and also Registrar, GGSIP University to shift affected students of the institute to other AICTE approved institutes affiliated to their University in consultation with the State Government - Held that:- Reliance of petitioners on University's inspection report dated 16th June, 2014 is misplaced as AICTE has taken a decision in accordance with the procedure prescribed in its regulations and the same did not contemplate inspection by an affiliating university. It is to be noted that the respondent- University before this Court has admitted that its inspection was purely an annual exercise to evaluate academic standards and teaching methods at the institute and not for evaluating the infrastructure and other physical parameters pertaining to the respective institutes. Thus, the University's inspection report cannot be taken into account while deciding the issue of grant of approval to petitioners.
The contention of petitioner regarding deficiencies in the case of Amity School of Engineering and Technology cannot be adjudicated upon in view of its non-impleadment. It is to be noted that it is AICTE's case that while Amity college was granted permission on self assessment basis, petitioner's application was rejected after the Expert Visiting Committee inspected petitioners' premises in accordance with the procedure prescribed under Clause 11 of Chapter IV of AICTE Approval Process Handbook.
Moreover, the equality concept in Article 14 of the Constitution is a positive concept and petitioners cannot claim parity for continuing a deficiency. In a catena of judgements it has been held that negative equality is not a valid legal ground.
From the aforesaid facts, it is apparent that the petitioner-institute suffers from several deficiencies pointed out by the Expert Visiting Committee. Despite various notices issued by AICTE to petitioner-institute to shift to a permanent site, it has been conducting engineering course from temporary premises for more than fifteen years. While it is true that the time to shift premises has been extended till 31st December, 2014, yet this Court finds that no steps have been taken by petitioners for shifting their college to a permanent site. After all a building cannot be constructed overnight!
Consequently, this Court of the view that the impugned order dated 24th June, 2014 suffers from no illegality, irregularity and/or procedural impropriety. Accordingly, the writ petition as well as applications are dismissed and the interim order dated 3rd July, 2014 is vacated.
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2014 (9) TMI 1053
Imposition of penalty - travelled beyond the scope of remand order of CESTAT - no differential duty arose as a result of de novo proceedings - Held that:- CESTAT nowhere stated that the penalty would be imposable only on the basis of the amount of differential duty. Indeed, it clearly stated that the penalty would depend on the consideration of the relevant factors. Thus the appellants’ contention is not tenable as the same is not based on the correct reading of the said CESTAT judgment. Further, it is found that the adjudicating authority in the impugned order has discussed the issue of imposability of penalty in the given facts and circumstances of the case and come to the finding that the appellants had been wrongly deducting the sales tax which was collected by them but not paid to the State Government and found the said conduct of theirs deserving of penalty of the amount imposed in the said order. - Decided against the appellant
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2014 (9) TMI 1052
Transfer of right to use - contract for hiring of mud logging services with the ONGC - service contract or contract for hire - VAT or service tax - whether the transactions entered into by the petitioners 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: - there is both an element of service and transfer of right to use goods. It however appears to us that the pre-dominant 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 contracts 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 mud logging contract contains a major element of provisions of services. In such an eventuality it is virtually impossible to divide the contract. It is not possible to work out the value of the right to use goods transferred under the contract. In cases, where the contracts are easily divisible or where the parties have by agreement clearly indicated what is value of the service part and what is value of the transfer of right to use goods part, the contract may be divided. We are in agreement with the Delhi High Court that when the contract cannot be divided with exactitude then the Central Law must prevail.
Parties have 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. This cannot be done without hearing the Union of India. If there is any dispute between the State or the Union of India then they must resolve it between themselves. The petitioners or the ONGC cannot be made liable to pay both the taxes for the same transaction. It is for the State in consultation with the Union of India to come up with the scheme whereby such contracts may be divided but in the absence of any such provision we are clearly of the view that the State has no jurisdiction to levy tax on such a transaction.
By operation of law services of renting-a-cab have been brought within the ambit of service tax. This is a Central law which governs the field and renting of cab services has been held to be a service amenable to service tax. The consistent view is that where vehicles are rented out with or without drivers they are amenable to service tax and therefore, no sales tax or VAT can be levied on such transaction.
Petition allowed - The State is not entitled to levy any sales tax or Value Added Tax on the transactions in question. It is, therefore, directed that the amount of tax, already deducted and received by the State shall be refunded to the petitioners along with statutory interest latest by 31st December, 2014 - decided in favor of petitioner.
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2014 (9) TMI 1051
Classification - Steam Coal imported - Demand of duty along with interest - Appellant agrees that issue is no longer res integra - Held that:- in view of the earlier decision of this Tribunal in the case of M/s. Coastal Energy Pvt. Ltd. & others Vs Commissioner of Customs, Central Excise and Service tax [2014 (8) TMI 246 - CESTAT BANGALORE], the demand of duty and interest payable thereon are upheld within the normal period. If there is any demand for extended period, the demand for extended period is not upheld. Penalty and fine, if any, imposed are set aside.
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2014 (9) TMI 1050
Disallowance u/s 40A(3) - cash payment to the agents - Held that:- Issue in question is squarely covered in assessee's own case for A.Y. 2007-08 wherein the ITAT by considering the same issue about the alleged cash payments of purchase of petrol/diesel held that provisions of section 40A(3) are not applicable to the assessee’s case. - Decided against revenue
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2014 (9) TMI 1049
Import of baggages – Non declaration of certain articles – opting green channel - unable to prove sanction order issued to him and the independent witnesses named in the panchnama, and in whose presence the arrest and seizure took place, were not examined - Held that:- having named the panch witnesses, it was incumbent on the petitioner to produce them as witnesses. It would have been a different matter if there were no witnesses at all. In that case, the question whether in the absence of panch witnesses, the offence could be proved on the basis of the evidence of the official witnesses, could have arisen. However, where a panch witness is named and later it transpires that the address given by the panch witness is fictitious, then a different set of consequences will follow. It would throw grave doubts on the truthfulness of the panchnama which is shown to have been signed by the said panch witnesses. In the present case, the failure to produce the panch witnesses would lead to an adverse inference being drawn against the petitioner and in favour of the respondent. - Decided against the revenue
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2014 (9) TMI 1048
Condonation of delay - High Court held that as appeal is filed after a period of five years from the date of receipt of these orders cannot be accepted reported in [2014 (4) TMI 1124 - BOMBAY HIGH COURT] - Apex Court dismissed the petition
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2014 (9) TMI 1047
Disallowance made u/s 14A - Held that:- In the instant case, the AO did not make any reference to the accounts in order to examine the correctness of the claim made by the assessee. The dividend income earned by the assessee is also ₹ 62,134/- only. The disallowance computed by the AO show that he has proposed to disallow only general expenses only. Hence, under these circumstances, in order to put this issue at rest, we estimate the disallowance to be made u/s 14A of the Act at ₹ 1,000/- by considering the Profit and loss account placed at page 7 of the paper book. Accordingly, we set aside the order of Ld CIT(A) on this issue and direct the AO to restrict the disallowance u/s 14A at ₹ 1,000/-.
Assessment of Short Term Capital Gains as business income of the assessee - Held that:- There is no reason to suspect the nature of activity carried on by the assessee during the year under consideration. Accordingly, we are unable to agree with the view taken by the tax authorities. Accordingly, we set aside the order of Ld CIT(A) on this issue and direct the assessing officer to assess the impugned gain as Short term Capital gain only.
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2014 (9) TMI 1046
The appeal is admitted on the following substantial questions of law :
(i) Whether the CESTAT was right in holding that the supplies made from DTA unit to SEZ developer/promoter as ‘exports’ are entitled for the exemption provided under Rule 6(6) of the Cenvat Credit Rules, 2004?
(ii) Whether in the CESTAT was correct in holding that the amendment to Rule 6(6)(ii) of Cenvat Credit Rules, 2004 vide Notification No. 50/2008-C.E. (N.T.), dated 31-12-2008 shall be applicable with retrospective effect, when the Board vide Circular No. 267/52/2008-CX.8, dated 7-1-2009 has clarified that the Notification No. 50/2008-C.E. (N.T.), dated 31-12-2008 is prospective in nature and would apply to supplies cleared from the date of notification only?
(iii) Whether the Tribunal was justified in following the decision of the Tribunal in the case of Sujana Metal Products Ltd., wherein the issue was that supplies from DTA units to developers in SEZ are to be treated as export of dutiable goods and entitled to benefit as such whereas the issue involved in the present case is that the Cenvat credit is not available for the inputs in the finished product supplied to developers of SEZ ?
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2014 (9) TMI 1045
Share transaction - Capital gain OR business income - Held that:- No infirmity in the order of the CIT(A) holding that the activity of transactions in shares/mutual funds by engaged the PMS was an investment activity and therefore the resultant gain was assessable under the head ‘capital gains’.
Disallowance u/s.14A - Held that:- CIT(A) has given a categorical finding that expenditure on PMS has not been claimed by the assessee and there does not remain any other expenditure other than this expenditure. Therefore, no disallowance u/s.14A r.w. Rule 8D can be made. The above factual finding given by the Ld.CIT(A) could not be controverted by the Ld. Departmental Representative. Under these circumstances, we hold that the CIT(A) was justified in deleting the disallowance made by the AO.
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2014 (9) TMI 1044
Leviability of Service tax and interest - Construction of residential complexes for the period April 2009 to December 2012 - Held that:- the issue is clarified by the Board vide Circular 151/2/2012-S.T., dated 10-2-2012, which makes it clear that even in the cases where builder/developer receives consideration for the construction service provided by him from land owner in the form of land/development rights, the service would not be taxable for the period prior to 1-7-2010. Therefore, here even if there is any agreement for sale of UDS of land prior to agreement for sale of flat, the activity for the period prior to 1-7-2010 would not be taxable in terms of Circular dated 10-2-2012. The aforesaid Circulars, clarifications in Budget Instructions. Notifications, Judicial pronouncements overwhelmingly hold that the construction of residential complexes undertaken prior to 1-7-2010 is not liable for Service Tax. Therefore, the liability of the applicant requires to be decided only for the period commencing from 1-7-2010 onwards and not earlier to that results in Service Tax demanded prior to 1-7-2010 under ‘Construction of Residential Complex Service’ is not payable.
As the applicant has made full and true disclosure, accordingly after allowing the benefit in terms of Board’s clarifications in respect of services rendered prior to 1-7-2010 of ‘Construction of Residential Complex Services’ and considering value after 1-7-2010 as cum-tax value for computation of Service Tax as communicated by Revenue, Service Tax liability works out to ₹ 88,45,406/-. As such the Bench settles the Service Tax liability at ₹ 88,45,406/-. The applicant is eligible for refund of ₹ 1,40,912/- which should be dealt with in accordance with law. The Jurisdictional Commissioner would work out the interest liability and communicate to the applicant.
Imposition of penalty - Non-payment of Service Tax on the various services rendered during the period April 2009 to December 2012 - Held that:- out of the demand, the major portion of the demand pertains to ‘Construction of residential complex service’ in respect of which the applicant admitted and paid Service Tax on the services rendered after 1-7-2010. The applicant had collected Service and had not paid the same on the services rendered by him. For the period prior to 1-7-2010, due to lack of clarity on the taxability of ‘Construction of Residential Complex service’, the applicant did not pay Service Tax. Also the applicant had admitted some amount of Service Tax liability which was not part of the SCN demand. For the Act of non-payment of Service Tax, the applicant is liable for penalty. However considering the co-operation, full and true disclosure the partial immunity from penalty to the applicant is granted.
Prosecution - Section 32K of Central Excise Act, 1944 - Held that:- the applicant is granted immunity from prosecution under Section 32K of Central Excise Act, 1944, as made applicable to Service Tax vide Section 83 of the Finance Act, 1994. - Matter disposed of
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2014 (9) TMI 1043
Pre-deposit of differential duty - Held that:- nobody appears on behalf of the applicant so, it seems that the applicant is not interested to proceed in the stay application hearing. Accordingly, the applicant is directed to predeposit the entire amount of differential duty within a period of four weeks and report compliance. Upon such deposit, predeposit of the balance dues stands waived and recovery thereof stayed during the pendency of the appeal. - Decided against the appellant
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2014 (9) TMI 1042
Disallowance u/s 14A r.w.r. 8D - whether ITAT was correct in law in setting aside the disallowance made u/s.14A by relying on the decision of the Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. V/s. DCIT (2010 (8) TMI 77 - BOMBAY HIGH COURT), when the department has not accepted the principles laid own by the said decision as evidenced by the SLP filed ? Held that:- A similar issue had arisen in Income Tax Appeal in the case of the same assessee [2014 (8) TMI 119 - BOMBAY HIGH COURT] and after considering all these questions, this Court vide order dated 23rd July, 2014 to which one of us (S.C.Dharmadhikari, Jther .) was a party, did not find any merit in the appeal. - Decided in favour of assessee
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2014 (9) TMI 1041
Seeking directions for release of goods - Imported Coco beans - Samples failed to conform the standards laid down for Dry Fruits and Nuts under the provisions of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 and hence detained - Non issuance of NOC - Appellant contended that Coco beans can not be considered as dry fruit or nuts and do not come under the Food Safety and Standards Act, 2006 - Held that:- the standards applicable to dry fruits and nuts are made for the analysis of the standards of coco bean is prima facie an erroneous procedure. There are no prescribed standards for the coco bean. The coco bean by its very nature and on reading of the clause 2.3.47.5 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 under which dry fruits and nuts are defined, cannot be equated with a dry fruit or nuts. The specifications therein based on the nature of the coco bean is totally varying from the dry fruit and nuts as mentioned in the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. Therefore, in the absence of any prescription of the standards with regard to the coco beans, necessarily, the imported goods shall be released to the petitioner. - Petition disposed of
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2014 (9) TMI 1040
Levy of penalty under section 271(1)(c) - disallowance of depreciation claimed on capital subsidy - Held that:- Admittedly the assessee was in receipt of capital subsidy which had to be adjusted against the cost of assets purchased during the year and the depreciation on such assets had to be allowed on reduced value. The assessee had declared the complete information in respect of the said transaction in the return of income. However, under bonafide impression, the depreciation on assets had been claimed at a higher value but that itself would not establish that the assessee had furnished inaccurate particulars of income. The claim made by the assessee was bonafide. Where the assessee had submitted complete information and merely because the claim of depreciation had been made on a higher figure, does not make the assessee exigible to levy of penalty under section 271(1)(c) of the Act.
In the totality of the facts and circumstances, we find no merit in the order of Commissioner of Income Tax (Appeals) in levying the penalty for concealment under section 271 (1) (c) of the Act. - Decided in favour of assessee
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2014 (9) TMI 1039
Demand of Differential custom duty - Undervaluation - Import of spices by declaring custom value less than actual price - Investigation held and different confessions taken from agent and foreign suppliers - Held that: the cross- examination of the confessionary statement was conducted after more than 5 years which is clearly afterthought therefore, can not be taken into account for the purpose of defence of the appellant. Also in the confessionary statement of the manager of the appellant that he was actively involved in all the activities of the appellant , there is no dispute at all. Apart, from the statements, evidence was also recovered from the agent that the price of the goods indicated in the public ledger clearly suggests the undervaluation has been made by the appellant. Therefore, once the witnesses admitted the undervaluation and accepted the actual price contained in the fax messages of foreign supplier, then the said admitted price become the transaction value and there is no need to resort to price of contemporaneous import so, the differential demand of custom duty on such value and corresponding interest and penalties imposed under Section 114(a) of Customs Act, 1962 are upheld.
Confiscation and redemption fine - Held that: confiscation of goods can only be made of physically available goods, if the same is seized and either lying under seizer or if provisionally released. As here the goods were not physically available for confiscation and redemption, the confiscation can not be made and redemption fine can not be imposed supported by various decisions. -Decided partly if favour of appellant
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2014 (9) TMI 1037
Expenditure incurred in foreign currency excluded from export turnover - whether has to be excluded from total turnover when there is no provision in Section 10B to exclude from total turnover? - Held that:-Substantial question of law is covered by the judgment of this Court in the case of Commissioner of Income Tax & Another –vs- Tata Elxsi Ltd. & Ors. Reported in (2011 (8) TMI 782 - KARNATAKA HIGH COURT) wherein held There should be uniformity in the ingredients of both the numerator and the denominator of the formula, Section 10-A is a beneficial section. The components of the export turnover in the numerator and the denominator cannot be different. - Decided in favour of assessee
Unabsorbed depreciation and the brought forward loss - whether cannot be set off from business profits before computing deduction u/s.10B when section 10B of the Act provides for deduction of benefit on the profits and gains? - Held that:- Substantial question of law covered by the decision of this Court in the case of Commissioner of Income Tax & Another –vs- Yokogawa India Ltd. & Ors. Reported in (2011(8) TMI 845 - Karnataka High Court ) wherein held as deduction under section 10A has to be excluded from the total income of the assessee the question of unabsorbed business loss being set off against such profit and gains of the undertaking would not arise. - Decided in favour of assessee
As submitted by the Revenue that against the aforesaid two judgments in this Court, appeals are filed and are pending before the Apex Court. Hence, in the event of Revenue succeeding before the Apex Court, the Assessing Authority shall pass consequential orders under Section 260(1A) of the Income Tax Act, 1961, as per the orders to be passed by the Apex Court.
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2014 (9) TMI 1036
Refund claim - Admissibility, if Cenvat credit not admissible as output service not taxable - Held that: Relying on paragraph 6.12 of the Interim Order Nos. 79 to 152/2014 dated 18.9.2014 in case of M/s Apotex & Others 2015 (3) TMI 346 - CESTAT BANGALORE, the refund claim is admissible.
Refund claim - Barred by limitation under Section 11B of Central Excise Act 1944 - Held that: Limitation is considered as per paragraph 6.15 of the Interim Order Nos. 79 to 152/2014 dated 18.9.2014 in case of M/s Apotex & Others 2015 (3) TMI 346 - CESTAT BANGALORE, and paragraph 6.16 on method of calculating relevant date. The claim is within the normal period.Therefore, as regards nexus, the same has to be considered in accordance with the Interim Order (supra). - Decided in favour of appellant
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2014 (9) TMI 1035
Eligibility for exemption- Notification No. 21/2002-Cus. and 6/2006-CEX- Import of Customized Software- Revenue contended that the software loaded on the CDs is not a customized software, as the software is to be used by nodal maintenance centres, franchise maintenance centres, channel partner and to some extent by the end users therefore, covered under definition of canned software Held that: As per the explanation in the notifications, the customized software, is any custom design software developed for a specific user or client, other than packaged and canned software and a ‘packaged software’ or ‘canned software’ means a software developed to meet the needs of a variety of users. Respondent have produced a certificate from the suppliers certifying that the software, in question, supplied to the respondent is a software design specifically for them to meet the software requirements of fixed wireless phones/terminals supplied by the respondent against order on them from BSNL against tender No. MM/SW/072004/000277, dated 17-7-2004. Also the opening para in the catalogue states that software is a subject interactive software, which is specifically developed for use of the manufacturers and operators to do the programming of wireless phone before delivery to the customers. Thus it is BSNL who is using the software for specific purposes and the same is loaded at the BSNL’s Centres, from where the value added service is provided to the subscribers after programming their phone. The subscriber’s phones are programmed to be compatible with the software used by the BSNL. From supplier’s catalogue and supplier’s certificate, it is clear that the software has been specifically developed for the BSNL and as such the same has to be treated as a customized software. Therefore, from supplier’s catalogue and supplier’s certificate, it is clear that the software has been specifically developed for the BSNL and as such the same has to be treated as a customized software. - Decided against Revenue
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2014 (9) TMI 1034
Cenvat Credit - duty paying documents - address mentioned on the Invoice was of different premises of the assessee - Held that:- as there was no lapse in payment of duty or tax and filing Service Tax return by the appellant the other premises/units also belong to the appellant from where the output services are rendered. The input services to which the invoices in dispute relate are utilized in rendering output taxable service. The appellant have made payment of input service alongwith the Service Tax charged by the service provider. The appellant have maintained proper records in normal course of business, and have disclosed the credit taken regularly in periodical returns. Thus I hold that the appellant is entitled to avail CENVAT credit, disputed by Revenue. - Decided in favor of assessee.
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