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Showing 261 to 280 of 2855 Records

2015 (10) TMI 2603

Works contract - compounded rates of tax - Held that: - the contract in the instant case was undertaken by the petitioner for the Kerala State Construction Corporation Ltd., which is a wholly owned Government company. The said fact however, will not entitle the petitioner to claim the concessional rate of tax of 5%, that is envisaged in respect of compounded tax payable by a works contractor in respect of works contract awarded by the Government of Kerala, Kerala Water Authority, or local authority, inasmuch as the Kerala State Construction Corporation Ltd., cannot be equated with the Government of Kerala for the purposes of the concessional rate of tax - petitioner dismissed - decided against petitioner.
2015 (10) TMI 2602

Entertainment tax u/s 4 of the Tamil Nadu Entertainment Tax Act, 1939 - the benefit of exemption from the entertainment tax is not being passed on to the viewers and the Theatre owners collect huge sums and appropriate themselves - whether the benefit of exemption is to be passed on to the viewers or not?
Held that: - the grant of exemption has devolved from mere title to the development of Tamil Language and culture. It also limits use of other languages, violence and obscenities. It is also to be noted that the exemption is granted only to the films and all the conditions are imposed keeping the viewers in mind - The duties of the theatre owners are only to display, whereas it requires certain actions from the film makers to comply with the conditions - The purpose of the exemption, as this court has already pointed out, is mainly to develop and promote Tamil Culture. The object can only mean that by viewing the movies, which comply with the conditions, the viewers would develop further liking towards the Tamil language and Culture. Therefore, it can be safely said that the exemptions are to woo more viewers and therefore, the benefit of an exemption is only for the viewers, who bare the tax burden. An exemption is not a right. It is only a grant. The authority, granting the same, has powers to impose any conditions. Section 8 of the Act has to be read along with Section 4 of the Act and the provisions of the TNCR Act.
Unjust enrichment - Held that: - the collection and retention of tax against the provisions of law is unjustifiable and would amount to unjust enrichment. As evident from the various cases relied upon by the learned senior counsel for the Petitioner above, once it is found that the tax is collected against the statute, the same is liable to be refunded. Any levy of tax or any amount in the like nature would be amenable to Article 265 of the Constitution of India.
Further, the Government issued orders in GO.Ms.No.159, Commercial Taxes and Registration (C1) Department, dated 22.08.2007, restricting the concession not to those old or new Tamil films bearing Tamil titles, but only to those conforming with Tamil culture and dignity, that is the movies not having, violence and adult only scenes were only granted exemptions.
The exemption benefit must be passed on to the viewers, as the burden falls on them - the tax burden should not be passed on to the viewers by the theatre owners in cases of exemption from the levy of entertainment tax - petition allowed - decided in favor of petitioner.
2015 (10) TMI 2601

Vires of Section 19(1), 19(10) and 19(11) of the Tamil Nadu Value Added Tax Act, 2006 and Rule 10(2) of the Tamil Nadu Value Added Tax Rules, 2007 - whether Section 19(1), 19(10) and 19(11) of the Tamil Nadu Value Added Tax Act, 2006 and Rule 10(2) of the Tamil Nadu Value Added Tax Rules, 2007 are inconsistent with the charging Section 3 and the General Scheme of annual assessment under Sections 20,21,22 of the Tamil Nadu Value Added Tax Act, 2006? - Held that: - the issue involved in these Writ Petitions have been elaborately dealt with by a Division Bench of this Court in the case of USA Agencies Versus The Commercial Tax Officer [2013 (8) TMI 532 - MADRAS HIGH COURT] where the Division Bench of this Court has rejected the similar contentions raised by the petitioners herein - Writ Petitions are dismissed holding that Section 19(11) is a valid piece of legislation which cannot be struck down as being either unreasonable or discriminatory and violative of Article 265 and 360A of the Constitution of India - decided against petitioner.
2015 (10) TMI 2600

Detention of goods - the vehicles are brought only for the purpose of exhibition - no certification obtained from the assessing authority for the proposed exhibition or display under Sub-section (13)(i) of Section 16 of the Kerala Value Added Tax Act, 2003 - Held that: - It will be far fetched to interpret that provision to hold that if any vehicle is being brought into the State for the purpose of conducting exhibition, exchange mela or any prize scheme for sales promotion, such certification or permission has to be obtained from the assessing authority to which the dealer is subject, even before the vehicle is brought in for the purpose of the exhibition or exchange mela, as the case may be.
Therefore, a certification under Section 16(13)(i) of the KVAT Act cannot be insisted upon at the time of entry of goods into the State, more particularly when the credibility of the goods under transit can be traced to a registered owner because the vehicle is already registered under the MV Act - the goods detained as per Ext.P9 shall be released on the appellant furnishing simple bond without sureties for the amount demanded.
Appeal allowed - matter on remand - goods released on furnishing of simple bond.
2015 (10) TMI 2599

Security deposit to release the goods - the petitioner had produced a delivery note together with an 8F declaration, which showed that the goods were being transported for exhibition purposes, but there was no document that was produced to show that the consignor/petitioner had a permission for exhibition/display purposes - whether demand of deposit valid? - Held that: - there was no compliance with the procedure required to be followed as per Section 16 (13) of the KVAT Act - this is a case where the necessary documents that had to accompany the transportation were not there, and therefore direction to furnish a bank guarantee for the security deposit is sustainable - the adjudicating authority shall adjudicate the matter and pass orders - petition allowed by way of remand.
2015 (10) TMI 2598

Jurisdiction to collect tax at the time of inspection - return of cheques - reliance placed in the decision of the case of Sri Balaji Auto Spares v. Assistant Commissioner (CT), Annadhanapatty Circle, Salem [2012 (3) TMI 380 - MADRAS HIGH COURT] for seeking refund of cheques - Held that: - it was held in the case that the powers conferred, under section 64(4) of the Tamil Nadu Value Added Tax Act, 2006, does not provide the power or the authority to the respondents to collect the tax, said to be payable by the petitioner. The enforcement wing officials had no jurisdiction to collect tax at the time of the inspection, without verification of the monthly returns, before the completion of the assessment - the issue is squarely covered by the facts of the present case, the case is applicable to the present case.
The respondents are directed to return the cheques. However the respondents are open to pass appropriate assessment orders - appeal allowed - decided in favor of appellant.
2015 (10) TMI 2597

Condonation of delay - mode of communication - Held that: - the adjudication order has not been served on the appellant in the manner and mode presented in Section 37C of the Central Excise Act, 1944. Thus, it has to be construed that the order was not communicated to the appellant within time as claimed by the Department. Hence, for the purpose of computation of limitation, I accept the date of receipt of order as claimed by the appellant. Since, after receipt of the order, the appeals filed within the statutory time limit, I am of the view that there is no delay in filing the appeals - appeal allowed by way of remand.
2015 (10) TMI 2596

Rejection of books results - Auditor’s Report reliance - whether the reports of the auditors could be said to be “material” on which reliance could be placed by the income tax authorities? - Held that:- We find that the books of accounts were destroyed due to fire that broke out in the business premises of the assessee on 18.5.2006 and hence the assessee had to heavily rely only on the audited balance sheets and tax audit report that were practically ready before the date of fire as assessee being a listed company , it had to submit quarterly financial results to the stock exchange after due review by its auditors. We also find that the case law relied upon by the Learned AR on the decision of Hon’ble Delhi High Court in the case of Addl CIT vs Joy Engineering Works Ltd(1978 (2) TMI 94 - DELHI High Court ) is well placed as it deals with identical situation.
Keeping in view of the fact that the revenue could not contradict the submissions of the assessee as well as the observations of the ld.CIT(A) in the impugned order, we find no infirmity in the orders of the ld. CIT(A) - Decided against revenue
2015 (10) TMI 2595

Income arising on sale of shares - capital gain or business income - Held that:- During the year under consideration, the assessee has dealt in 68 scripts. But the repetitive transactions are few in numbers. The period of holding was less than 30 days in respect of 49 scripts and the same may actually go against the claim of the assessee. However, we notice that the assessee’s claim of Long term capital gains has been accepted by the AO. Hence, in our view, the low period of holding in respect of certain scripts may not be considered to be the sole determining factor. The assessee has furnished details of the days spent by the assessee on stock market at page 23 of the paper book. A perusal of the same would show that the assessee has spent on an average only 6 days in a month on share trading activity. The assessee has also earned dividend income of ₹ 46.25 lakhs.
All the factors discussed above, in our view, shows that the intention of the assessee was mainly to act as investor only. Accordingly, we are of the view that the gains arising on sale of shares should be assessed under the head Capital gains only. Accordingly, we set aside the order of Ld CIT(A) and direct the AO to assess the profits arising on sale of shares as Capital gains only. - Decided in favour of assessee.
2015 (10) TMI 2594

CENVAT credit - outward transportation of the goods from the appellant's factory to the buyer - denial on the ground that the place of removal in the appellant's case is the factory gate - Held that: - dispute relates to the factual position and requires verification and examination of documents, I deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision - matter on remand - appeal disposed off.
2015 (10) TMI 2593

Deduction u/s 80P(2)(a)(i) eligibility - Held that:- The Commissioner of Income Tax (Appeals) has allowed the claim of deduction under sec. 80P(2)(a)(i) of the Act by following the decisions of the Hon’ble Karnataka High Court in the case of Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha, Bagalkot (2015 (1) TMI 821 - KARNATAKA HIGH COURT ) and in the case of General Insurance Employees Cooperative Credit Society Ltd. (2014 (6) TMI 912 - KARNATAKA HIGH COURT ) wherein held when the status of the assessee is a Co-operative society and is not a Co- operative bank, the order passed by the Assessing Authority extending the benefit of exemption from payment of tax under Section 80P(2)(a)(i) of the Act is correct.
No contrary decision could be cited by the Departmental Representative. We, therefore, do not find any good and justifiable reason to interfere with the order of the Commissioner of Income Tax (Appeals), which is hereby confirmed and the ground of appeal of the Revenue is dismissed.
2015 (10) TMI 2592

Penalty u/s 271(1)(c ) - Held that:- Penalty proceedings are distinct and separate from assessment proceedings and just because an addition has been sustained in quantum proceedings, levy of penalty is not automatic. What has to be seen is whether there was a bonafide belief and bonafide explanation given by the assessee. If it is so, no penalty could be levied u/s 271(1)(c ) of the Act.
Moreover, we also find that the additions sustained by this tribunal in quantum proceedings in the sum of ₹ 1,45,000/- has been admitted by the Hon’ble Calcutta High Court as involving substantial question of law. Hence we hold that no penalty could be levied u/s 271(1)(c ) of the Act in respect of issues involving substantial question of law as no allegation could be raised on the assessee with regard to concealment of income or furnishing of inaccurate particulars of income and the issue involved is highly debatable in nature - Decided in favour of assessee
2015 (10) TMI 2591

Cenvat credit - Interest - Penalty - there are clear evidence that the appellants had been fraudulently taking cenvat credit on the basis of the invoices, against which no goods were received by them - It is noticed that the various suppliers of input confirmed that they had not supplied any defective type or grade "D" material to the appellant - Appeal dismissed.
2015 (10) TMI 2590

Penalty - Time limitation - Reversal of cenvat credit - Held that: - It is an admitted fact that irregularly availed cenvat credit and subsequently reversal thereof is not attributable to any fraud, collusion, misstatement with intent to evade payment of duty. In such an eventuality, the Department was required to issue the SCN within a period of one year from the relevant date i.e. reversal of cenvat credit -
The Hon’ble Supreme Court in the case of T.V.S. Whirlpool [1999 (10) TMI 701 - SUPREME COURT OF INDIA] have held that period of limitation is not only applicable for the claim of the Principal amount, but has also applicable to the claim of interest thereon - appeal allowed - decided in favor of appellant.
2015 (10) TMI 2589

Denial of CENVAT credit - repair and maintenance service during warranty period - Held that: - The issue has been settled by this Tribunal in the case of Commissioner of Central Excise, Vadodara II Vs. Danke Products [2009 (7) TMI 137 - CESTAT, AHMEDABAD] wherein it has been held that repair and maintenance of transformers during warranty period is an activity of relating to sale of goods. Therefore, relying on the decision of the Tribunal in the case of Danke Products, I hold that the appellant is entitled for input service credit on repair charges paid to the dealers by the appellant as the same is an activity relating to sale of goods by the appellant - appeal allowed - decided in favor of appellant-assessee.
2015 (10) TMI 2588

Revision u/s 263 - reliance on audit objections - capital gains - Held that:- The Assessing Officer has made enquiry with regard to investments in shares and mutual funds at assessment stage and assessee vide his reply dated 07.12.2010 offered the amount for taxation on account of capital gains. Therefore, it is not a case of no enquiry on capital gains by Assessing Officer. Therefore, the reasons given by the CIT in the impugned order are wholly unjustified for invoking jurisdiction under section 263 of the Act. Thus, the CIT did not assume the jurisdiction under section 263 in accordance with law and cannot substitute his opinion against opinion expressed by the Assessing Officer in the assessment order. Therefore, there is no justification to sustain the impugned order under section 263 of the Act. We, accordingly, set aside and quash the order under section 263 of the Act and restore the assessment order under section 143(3) of the Act dated 16.12.2010. - Decided in favour of assessee.
2015 (10) TMI 2587

Withdrawal of appeal - Held that:- In view of the amendment in section 253(1)(f) of the Income Tax Act, 1961, a provision has been made for appeal to the Tribunal. He, therefore, seeks permission to withdraw the petition.
Permission, as prayed for, is granted. The petition is disposed of as withdrawn. Notice is discharged.
2015 (10) TMI 2586

CENVAT credit - 100% EOU - manufacture of Polypropylene Multi Filament Yarn, falling under Chapter 54 of the First Schedule to the Central Excise Tariff Act, 1985 - Rule 3 (7)(a) of the Cenvat Credit Rules, 2004 - Held that: - N/N.23/2003-CE dated 31.02.2003 permits the EOU Units for payment of Central Excise Duty equivalent to the special additional duty leviable under Section 3 (5) of the Customs Tariff Act, 1975. The payment of duty under the prescribed rate is subject to fulfilment of condition that the goods supplied to the units in DTA are not exempt from payment of tax levied by the State Government.
In the present case, it is a fact on record that the goods were supplied by M/s. Reliance Industries Ltd. a 100% EOU Unit to the appellant on payment of Central Sales Tax (CST) levied and collected under the Sales Tax Statute. Since, supply of goods from M/s. RIL to the appellant has suffered payment of CST, in my opinion, the appellant falls under the purview of Sl.No.1 of Notification dated 31.02.2003. Thus, the formula prescribed in Rule 3 (7) (a) of the Cenvat Credit Rules, containing the stipulation for taking of cenvat credit will have no application and the appellant will be entitled for the full cenvat credit of Central Excise duty paid and reflected by the EOU unit in its invoices. I also find that condition No.2 itemized in the Notification dated 31.02.2003 is subject to observance of the procedures laid down in Clause (a), (d), (e) and (g) of paragraph 6.8 in the Foreign Trade Policy- 2004-09. However, in the present case, since the supplier M/s. Reliance Industries Ltd. has opted for payment of duty under the conditions itemized in clause (h) in the FTP (supra), the case squarely falls under Sl.No.1 in the said Notification, for which the embargo/restriction created in the Rule 3 (7) (a) of the cenvat credit rule will have no application.
I am of the considered opinion that the impugned order is not legally sustainable. Therefore, the same is set aside and the appeal is allowed in favour of the appellant.
2015 (10) TMI 2585

Manufacture - Acetic Anhydride - hazardous chemical - The repacking of the said goods from the bulk packs, to retail packs - Held that: - we hold that the appellant is not engaged in repacking from bulk packs to retail packs. Neither the appellant is packing the goods in retail packs and neither adopting any of the treatment to retail sale to the consumer. As such, we hold that the provisions of Note 11 of Chapter 29 of CETA, 1985, are not attracted. we also hold that under the facts and circumstances, there is no concealment of facts, contumacious conduct et cetera on the part of the appellants and as such extended period of limitation is not attracted in this case. Accordingly, the impugned orders are set aside - appeal allowed - decided in favor of appellant-assessee.
2015 (10) TMI 2584

Denial of cenvat credit alongwith interest and imposition of penalty - Dises - Held that: - The appellants had taken 100% cenvat credit on Dises instead of 50% of cenvat credit in the same financial year and the balance 50% of cenvat credit are to be taken in any financial year, subsequent to the financial year in which the capital goods are received - the demand of cenvat credit alongwith interest on this issue is justified.
Denial of cenvat credit on plastic crates/ bins used for outward transportation of the final product - Held that: - The appellant contended that the value of plastic crates/bins cleared alongwith the final products, was included in the value of the final product. Hence, there is no reason to deny the cenvat credit on this issue.
Demand of interest on payment of the differential duty on supplementary invoices raised due to enhancement of the Assessable value with retrospective effect on the excisable goods manufactured and cleared by the appellant - Held that: - I find that this issue is decided by the Hon’ble Supreme Court in the case of CCE, Pune vs. SKF India Ltd., [2009 (7) TMI 6 - SUPREME COURT], where it was held that it is to be noted that the assessee was able to demand from its customers the balance of the higher prices by virtue of retrospective revision of the prices. It, therefore, follows that at the time of sale the goods carried a higher value and those were cleared on short payment of duty. The differential duty was paid only later when the assessee issued supplementary invoices to its customers demanding the balance amounts. Seen thus it was clearly a case of short payment of duty though indeed completely unintended and without any element of deceit etc. The payment of differential duty thus clearly came under sub-section (2B) of section 11A and attracted levy of interest under section 11AB of the Act.
The impugned order is modified in so far as demand of cenvat credit alongwith interest is set aside. As the issues involved are interpretation of the provisions of law, penalty is set aside. The appeal field by the appellant is partly allowed - decided partly in favor of assessee.