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Showing 321 to 340 of 1052 Records
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2011 (4) TMI 1236
Issues: Denial of credit for service tax on travelling expenses and facility management services.
Travelling Expenses:
The department denied credit for service tax on travelling expenses and facility management services, claiming they were not input services related to the applicants' activities. The advocate argued that the services of a traveling agent were used for official duties, citing a previous stay order where similar credit was allowed. The Tribunal noted that the nature of the activity for which service tax was paid should have been clearly identified. It was observed that services related to travel and office maintenance were closely linked to the manufacturing activity, and thus, the applicant was granted a waiver of pre-deposit of dues and a stay on recovery pending appeal.
Facility Management Services:
Regarding the credit for service tax on management facility services, the advocate contended that office maintenance was integral to the manufacturing activity and that denial of credit based on invoices from the office was incorrect. The Tribunal considered that maintenance of the office was connected to the manufacturing activity and that services related to office work and staff travel were linked to the business activity of the applicants. Consequently, the applicant was deemed to have established a case for a waiver of pre-deposit of dues as per the impugned order, leading to a stay of recovery pending appeal.
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2011 (4) TMI 1235
Whether purchase of tendu leaves by the appellants, who are registered exporters of tendu leaves in the State of Chhattisgarh, is inter-State or intra-State sale?
Held that:- We are in entire agreement with the reasonings of the learned single judges in holding the sale transaction of tendu leaves as intra-State sale, and not inter-State sale. We find no substance in this batch of writ appeals, the same deserve to be and are, accordingly, dismissed
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2011 (4) TMI 1234
Issues: Interpretation of Notification No. 12 of 2003-ST dated March 1, 2003 regarding services rendered by the assessee.
The judgment delivered by the Karnataka High Court involved an appeal by the assessee against the Tribunal's order holding them liable to pay service tax for services rendered starting from June 16, 2005. The assessees were engaged in turnkey projects involving fire safety and protection systems. The dispute arose regarding the taxability of the composite turnkey work contract involving fireproofing. The assessees claimed that the contract should be taxable only from May 1, 2007, while the Revenue argued that they were liable to pay service tax from July 1, 2003, under the category of "erection, commissioning or installation" services. The Tribunal ruled in favor of the Revenue, leading to the appeal.
The main contention revolved around the interpretation of Notification No. 12 of 2003-ST dated March 1, 2003, concerning the services provided by the assessee. The High Court noted that the appeal fell under section 35G of the Act, which limits the court's jurisdiction to adjudicate matters related to excise duty or goods' value for assessment purposes. Citing a previous case, the court clarified that such issues are under the exclusive jurisdiction of the apex court under section 35L. Consequently, the High Court rejected the appeal as not maintainable, advising the assessee to approach the apex court for resolution. The court directed the registry to return the certified copies of the orders to the assessee for further action.
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2011 (4) TMI 1233
Whether before proper declaration could be made and tax to the extent of goods, which were to be off-loaded in Gujarat could be paid, the vehicle was intercepted and goods seized?
Held that:- All issues are required to be first adjudicated by the competent authority before whom the petitioners may have opportunity to produce all necessary documents. However, this is bound to take some time. During this period, the goods of the petitioners could be released on certain conditions.
At the time of release of the goods petitioner No. 1 shall file declaration regarding quantity of the betel nuts that they intend to transport outside the State and the quantity they intend to off-load in the State. Necessary transit pass shall be issued by the State authorities in the light of such declarations. Upon ultimate transit of the goods outside the State, petitioner No. 1 shall produce necessary documentary proof in this regard with the competent authority adjudicating the issues
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2011 (4) TMI 1232
Order dated July 17, 2000 passed by the first respondent, viz., the State of Gujarat, in exercise of powers under section 9(2) of the Gujarat Tax on Luxuries (Hotels and Lodging Houses) Act, 1977 directing the petitioner to pay ₹ 36,035 towards luxury tax, ₹ 36,035 towards fine and ₹ 4,000 for compounding the offence, totalling to ₹ 76,070 as well as the order dated January 1, 2000 passed by the second respondent, that is, the Deputy Commissioner (Tax on Luxuries), State of Gujarat, Gandhinagar cahhalnged
Held that:- In the facts and circumstances of the case, the first respondent took note of the fact that the hotel management was regularly maintaining form No. 3 and had also deposited the amount of tax. He, therefore, modified the order passed by the second respondent and assessed the tax for a period of five months instead of twelve months as computed by the second respondent and accordingly assessed the tax payable at ₹ 36,035; reduced the penalty amount under section 7 of the Act to ₹ 36,035; and compounding charges to ₹ 4,000. Accordingly, the amount payable by the petitioner under the order passed by the second respondent was reduced from ₹ 2,26,210 to ₹ 76,070. approach and has reduced the assessed amount as well as amount of penalty and compounding charges. In the circumstances, the conclusion arrived at by the first respondent being based on concurrent findings of fact recorded by both the authorities below after appreciation of the evidence on record, does not warrant any interference by this court in exercise of powers under article 226 of the Constitution of India. Appeal dismissed.
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2011 (4) TMI 1231
Notice dated July 1, 1981 issued by the Deputy Secretary, Information and Broadcasting Department (annexure F to the petition) as well as the order dated February 6, 1993 (annexure H to the petition) passed by him in exercise of powers under section 13 of the Gujarat Entertainments Tax Act, 1977 challenged
Held that:- It is apparent that from September 24, 1990, when the Regular Civil Suit No. 76 of 1989 came to be dismissed, there was no order of status quo or any other order operating against the respondent No.1 restraining it from exercising powers under section 13 of the Act. Computing the period of limitation of two years from September 24, 1990 till the date of passing of the impugned order, that is, February 6, 1993, evidently the same has been passed much after the expiry of period of two years from the date of the order of the prescribed officer, as prescribed under sub-section (2) of section 13 of the Act. The impugned order dated February 6, 1993 passed by respondent No. 1 is, therefore, clearly barred by limitation and as such cannot be sustained. In the circumstances, without going into the merits of the impugned order, the same is required to be set aside on the ground of being barred by limitation alone. Appeal allowed.
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2011 (4) TMI 1230
Issues Involved:
1. Rejection of claim of deduction u/s 80-IA(iv)(a) on income generated from the windmill.
2. Entitlement for depreciation on machinery used in job work done by assessee's vendors.
3. Estimating selling and administrative expenses attributable to windmill.
4. Revision of AO's order by CIT invoking provisions of section 263 for A.Y. 2004-05 and 2005-06.
5. Claim of deduction u/s 80-IA/80-IB on income from machining charges, sale of scrap, DEPB sale, turnover tax, and surcharge refund on purchases.
Summary:
1. Rejection of Claim of Deduction u/s 80-IA(iv)(a) on Income Generated from the Windmill:
The assessee's claim for deduction u/s 80-IA(iv)(a) was based on the provisions amended by the Finance Act 1999, allowing a ten-year deduction period within the first fifteen years of business commencement. The assessee exercised this option in A.Y. 2004-05. The Tribunal referred to the decision of the Madras High Court in Velayudhaswamy Spinning Mills (P) Ltd. Vs. ACIT (231 CTR 368), which held that losses and depreciation from earlier years absorbed against other business profits cannot be notionally carried forward and set off against profits for computing the deduction u/s 80-IA. Thus, the issue was decided in favor of the assessee.
2. Entitlement for Depreciation on Machinery Used in Job Work Done by Assessee's Vendors:
The Tribunal examined whether the machinery supplied to vendors for job work was used for the assessee's business. It was established that the vendors substantially worked for the assessee, and the ownership and usage of the machinery were not doubted. Citing the decision of the Madras High Court in CIT vs. Indian Express (255 ITR 68 Mad.), the Tribunal concluded that the machinery was used exclusively for the assessee's business, thus entitling the assessee to claim depreciation. The Tribunal reversed the findings of the lower authorities and allowed the claim.
3. Estimating Selling and Administrative Expenses Attributable to Windmill:
The assessee maintained separate accounts for the windmill division and contended that only directly relatable expenses should be allocated while computing the deduction u/s 80-IA. The Tribunal restored the issue to the Assessing Officer to verify the maintenance of separate books of account and decide accordingly, providing an opportunity for a hearing to the assessee.
4. Revision of AO's Order by CIT Invoking Provisions of Section 263 for A.Y. 2004-05 and 2005-06:
The CIT revised the AO's order for A.Y. 2004-05 and 2005-06, invoking section 263, following the view taken in A.Y. 2006-07. The Tribunal found that the AO had adopted a possible view in line with the decision of the Chennai Tribunal in Mohan Breweries and Distilleries Ltd. v. ACIT (114 TTJ 532). Citing the Supreme Court decision in Malabar Industrial Co. Ltd. Vs. CIT (243 ITR 83 SC), the Tribunal held that the CIT was not justified in invoking section 263 and allowed the assessee's appeals.
5. Claim of Deduction u/s 80-IA/80-IB on Income from Machining Charges, Sale of Scrap, DEPB Sale, Turnover Tax, and Surcharge Refund on Purchases:
The Tribunal referred to the decision in Ramchandra Enterprises (ITA No. 1066, 1067/PN/2008 and 353/PN/2009) and allowed the claim of deduction u/s 80-IB on income from machining charges and scrap sale, as these were directly linked to the manufacturing activity. However, the claim for deduction on DEPB sale, turnover tax, and surcharge refund was decided against the assessee, following the Supreme Court decision in Liberty India Vs. CIT (317 ITR 218 SC) and S.N. Gupta (297 ITR 322 SC).
Conclusion:
The assessee's appeal for A.Y. 2006-07 was partly allowed, appeals for A.Y. 2004-05 and 2005-06 were allowed, and the Revenue's appeal for A.Y. 2006-07 was partly allowed. The judgment was pronounced in the open court on 29th April 2011.
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2011 (4) TMI 1229
Whether the order of the Tribunal holding that the transaction pertaining to taking of photograph, developing and printing is works contract?
Held that:- The grounds covered both transactions, including taking of photographs and sitting charges, as well as developing negatives and making positive prints out of it. We find, both cases fall under the concept of works contract to be considered under section 3B of the TNGST Act. In the circumstances we set aside the order of the Tribunal, thereby remand the assessment back to the assessing officer to consider the issue afresh in the light of the development of law in this regard.
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2011 (4) TMI 1228
Issues Involved:
1. Disallowance of Input-Tax Credit (ITC)
2. Levy of Tax on Unrecorded Sales
3. Levy of Purchase Tax
4. Levy of Interest
5. Imposition of Penalty
Detailed Analysis:
1. Disallowance of Input-Tax Credit (ITC):
The petitioner-company challenged the disallowance of ITC by the Sales Tax Officer, arguing that all necessary stock registers and production registers were produced. The Tribunal found that the petitioner maintained all relevant registers to ascertain purchases, sales, manufacture, and stock of goods. It was noted that the assessing officer did not prescribe any specific manner for maintaining these records in writing. The Tribunal concluded that maintenance of a stock register does not fall within the accepted principles of accountancy and that the petitioner-company complied with the requirements. Consequently, the Tribunal found no reason to disallow the ITC claimed by the petitioner.
2. Levy of Tax on Unrecorded Sales:
The Sales Tax Officer treated Rs. 51,04,220 as unrecorded local sales made to unregistered dealers. The petitioner argued that this discrepancy was due to differences in foreign currency exchange rates at the time of raising invoices and receiving payments. The Tribunal found substance in the petitioner's submission and directed the Sales Tax Officer to re-examine the documents and verify the exchange rates at the time of invoicing and payment receipt to determine the accuracy of the claim.
3. Levy of Purchase Tax:
The petitioner disputed the levy of purchase tax on goods purchased from unregistered dealers, arguing that such goods were used in the manufacturing process and should not attract purchase tax. The Tribunal examined the provisions of section 12 of the VAT Act as it prevailed at the material time and concluded that the petitioner was liable to pay purchase tax on purchases from unregistered dealers. However, the Tribunal noted that the Sales Tax Officer levied a flat rate of 12.5% without determining the tax rate for individual items. The Tribunal directed a re-calculation of the purchase tax, considering the specific tax rates for different items.
4. Levy of Interest:
Interest was levied on the tax payable under sections 16 and 17 of the VAT Act. The petitioner argued that no interest was leviable as the alleged tax liability was not admitted. The Tribunal directed that since the discrepancy in sales figures due to exchange rate differences needed re-examination, the question of interest levy should also be re-examined. However, interest on the sale of the trimming machine was upheld, subject to re-calculation based on the actual date of sale.
5. Imposition of Penalty:
The Tribunal did not interfere with the imposition of a penalty of Rs. 5,000, finding it appropriate under the circumstances.
Conclusion:
The Tribunal set aside the assessment order dated January 28, 2010, and directed a fresh assessment with specific instructions:
1. Allow the ITC disallowed by the Sales Tax Officer.
2. Re-examine the difference between the return figure and balance sheet figure.
3. Re-calculate the purchase tax considering the specific tax rates for different items.
4. Examine the entitlement of ITC on purchase tax in light of relevant provisions.
5. Re-determine the interest based on the re-examination of the sales discrepancy.
6. Complete the fresh assessment by July 31, 2011, ensuring all relevant records are produced and verified.
The petition was disposed of with no order as to costs.
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2011 (4) TMI 1227
Whether according to the provision of the SOD Act, it is the duty of the designated officer to verify whether the said dispute application has been filed after complying with the requirement of the Act and deposit of the payment prescribed under the Act?
Held that:- The designated authority under the SOD Act, committed a jurisdictional error in directing the appellant to deposit the amount which he has challenged in the appeal as not payble as condition of entertainment of the application under section 5 of the SOD Act.
The Tribunal below also did not appreciate the aforesaid contention of the writ petitioner and erroneously affirmed the order passed by the designated authority. Thus set aside the order passed by the designated authority as well as the Tribunal below and direct the designated authority to consider the application for settlement of the dispute without insisting on deposit of any further amount by the writ petitioner as a condition for considering the merit of the application.
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2011 (4) TMI 1226
The Punjab and Haryana High Court dismissed the revenue's appeal under Section 35G of the Central Excise Act, 1944. The appeal questioned whether a person not providing services but paying Service Tax can avail Cenvat Credit for GTA Services Tax. The court ruled against the revenue based on a previous order in CCE v. Nahar Industrial Enterprises Ltd.
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2011 (4) TMI 1225
Waiver of pre deposit - Availmet of CENVAT Credit - Credit has been denied on the ground is that the appellant was not a manufacturer and not being a manufacturer the Cenvat credit could not have been taken - Held that:- this is a case where the procedure has been followed correctly. There is no dispute that duty was paid by utilizing Cenvat credit and paid in cash while claiming the rebate and there is no lacuna in the procedure they were required to follow. The only ground on which credit has been denied is that the appellant was not a manufacturer and not being a manufacturer the Cenvat credit could not have been taken. Further duty has been paid and the duty paid is resulting in a revenue neutral situation. Similarly in case of rebate also there are several decisions which have taken a view that even if the duty is not payable, and the same has been paid, rebate would be admissible - appellants have made out a very strong case in their favour for waiver of pre-deposit - Stay granted.
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2011 (4) TMI 1224
Levy of tax u/s 7A of the Tamil Nadu General Sales Tax Act, 1959 - Imposition of penalty under Section 12(5)(iii) - Held that:- In order to make the recorded cassettes marketable under its name, the assessee had pasted its name therein, apart from printing the details of contents of the recorded cassettes by purchasing inlay cards as well as stickers from unregistered dealers, got them printed and pasted them in the plastic case, in which recorded the cassettes were laid and sold. A look at the cassettes placed before this Court shows that the ownership of the cassettes were vested with the assessee and that the sale is under the brand name of the assessee - assessee had thus gone further on the sale of the cassettes by putting them in the plastic case with its name printed therein, with other details of the contents by getting them printed on the blank papers purchased, the provision of Section 7-A(1)(a) of the Tamil Nadu General Sales Tax Act, 1959, stands attracted, particularly on the aspect of the purchase of the white card boards from unregistered dealers and printed with materials for further pasting them on the cassettes for sale.
Section 7-A(1)(a) of the Act applies not only to a case of manufacture of other goods for sale, but also to cases falling under 'otherwise', which means, dealing with the materials purchased in any other manner too, we have no hesitation in holding that the purchase of white boards from the unregistered dealer and got them printed and pasted in a plastic case, in which cassettes are laid and sold, certainly would fall under the term 'otherwise' for the purpose of making levy under Section 7-A(1)(a) of the Tamil Nadu General Sales Tax Act, 1959.
Levy of penalty under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, it is not denied that the turnover was available in the books of accounts and on a bona fide impression as to the non liability the said turnover was not included in the taxable column - it is held that no levy of penalty is warranted on the assessment made solely relying on the turnover available in the books of accounts. Following the above said decision, we set aside the order of penalty imposed under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act - Decided partly in favour of assessee.
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2011 (4) TMI 1223
Whether Appellant conviction under Sections 8/21(b) of the Narcotics Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.25,000/- with the direction that in default of payment of fine, he would undergo rigorous imprisonment for a further period of one year was correct?
Held that:- Appeal allowed. The view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched.
The appellant is entitled to the benefit of doubt and acquit him of the charges and set aside the judgments and orders passed by the trial court and the High Court.
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2011 (4) TMI 1222
Deduction u/s 80P(2)(a)(i) of the Act - Whether the CIT(A) is justified in directing the AO to grant deduction u/s 80-P(2)(a)(i) of the Act – Held that:- The provisions of section 80P(4) has got its application only to cooperative banks - Section 80P(4) does not define the word “cooperative society” - The existing sub-section 80P(2)(a)(i) shall be applicable to a cooperative society carrying on credit facility to its members - This view is clarified by Central Board of Direct Tax vide its clarification No.133/06/2007-TPL dated 9th May, 2007 - The new proviso to section 80P(4) which is brought into statute is applicable only to cooperative banks and not to credit cooperative societies - The intention of the legislature of bringing in cooperative banks into the taxation structure was mainly to bring in par with commercial banks - Since the assessee is a cooperative society and not a cooperative bank, the provisions of section 80P(4) will not have application and it is entitled to deduction u/s 80P(2)(a)(i) of the Act – thus, the order of CIT(A) is correct and upheld – Decided against Revenue.
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2011 (4) TMI 1219
Whether the award passed by Labour Court, Patiala for reinstatement of the appellant set aside and declared that he shall be entitled to wages in terms of Section 17-B of the Industrial Disputes Act, 1947 was correct?
Held that:- Appeal allowed. The impugned order is set aside and the award passed by the Labour Court for reinstatement of the appellant is restored.
The appellant could hardly be blamed for the delay, if any, in the adjudication of the dispute by the Labour Court or the writ petition filed by the respondent. The delay of four to five years in the adjudication of disputes by the Labour Court/Industrial Tribunal is a normal phenomena. If what the High Court has done is held to be justified, gross illegalities committed by the employer in terminating the services of workman will acquire legitimacy in majority of cases. Therefore, we have no hesitation to disapprove the approach adopted by the High Court in dealing with the appellant's case.
The plea of the respondent that the action taken by it is covered by Section 2(oo)(bb) was clearly misconceived and was rightly not entertained by the Labour Court because no material was produced by the respondent to show that the engagement of the appellant was discontinued by relying upon the terms and conditions of the employment.
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2011 (4) TMI 1217
Detention orders - Held that:- Appeal allowed. Detention orders quashed. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.
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2011 (4) TMI 1216
Quashing of punishment order of dismissal from service as well as the disciplinary proceeding against respondent no.1 (hereinafter called the delinquent), giving liberty to the present appellants to initiate the proceedings afresh, if the disciplinary authority so desired
Held that:- The relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, cannot be entertained and is hereby rejected. In case the appellants choose to hold a fresh inquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled for subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of.
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2011 (4) TMI 1215
Acquittal of the accused persons - Held that:- Appeal dismissed. No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused.
Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt. Thus the trial court as also the High Court on the basis of the circumstantial evidence rightly came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned.
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2011 (4) TMI 1214
Whether, on account of the corrigendum whereby the provisions of Section 3 of the Tender documents and Section 7 of the Bidder’s Check List were amended, the appellant was, disqualified from consideration, in view of the fact that along with the Tender documents it had filed, through inadvertence or otherwise, a copy of the ISO 9001:2000 certificate of the previous year, instead of the current year, although, it did have the said valid ISO 9001:2000 certificate at the time of making of the bid?
Held that:- Appeal dismissed. We need not refer to the decisions cited by the learned Attorney General or the Appellant in this regard, as the principles enunciated therein are well-established.
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