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Case Laws
Showing 361 to 380 of 1580 Records
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2013 (10) TMI 1220 - MADRAS HIGH COURT
Penalty u/s 271(1)(c) of the Income Tax Act – Claim of expenditure made in P & L A/c – Held that:- Reliance has been placed upon the judgment in the case of CITv. Reliance Petro Products P. Ltd. [2010 (3) TMI 80 - SUPREME COURT] - So long as the assessee had not concealed any material or the factual information given by him has not been found to be incorrect, there would be no imposition of penalty under section 271(1)(c) of the Income-tax Act. Even if the claim made by the assessee is unsustainable in law, so long as the assessee substantiated the explanation offered by him or the same is found to be bona fide, Explanation 1 to section 271(1)(c) would not stand attracted. However, when the assessee does not substantiate the explanation or the same is found to be lacking in bona fide, Explanation 1 to section 271(1)(c) would stand attracted – In the present case, there was no lacking in bona fides in the claim of the assessee originally made – Decided against the Revenue.
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2013 (10) TMI 1219 - KARNATAKA HIGH COURT
TDS under section 194C - supply of sachets of specification to the effect that the sachets should have emblem, logo, name, quantity and price, etc., printed on the sachets - works contract or sales contract – Held that:- As per KPTCL's case [2012 (6) TMI 204 - Karnataka High Court], the amendment to the definition of "work" under section 194C(7)(iv) of the Act is clarificatory in nature and retrospective. In the light of the said ratio, if the facts of this case are read, the assessee has not supplied any material. However, the tenderer has secured the material from other source and has supplied the same to the assessee. May be, in the instant case, some of the features of works contract may overlap, but, however, that should not have been taken as necessary criteria to determine the nature of work. The Explanation "works contract" has a definite legal connotation. What is stated in the section 194C (1) is for "carrying out any works" between the contractor and specified person. The work is also defined to exclude the situation where the material is not supplied by the assessee. In view of the specific definition of work, it is to be held that contract amounts to sale and not works contract. - Decided against the Revenue.
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2013 (10) TMI 1218 - ALLAHABAD HIGH COURT
Works Contract - Whether activity of construction / development by a Builder would constitute Work Contract in certain circumstances - Held that:- Construction of flats on its own can not be tanable as work contract under U.P.T.T. where the right title and interest in the construction continue to remain with the developer mere payment term would not alter the nature of transaction - particular unit is not resold but retained by the Appellants, there would be no works contract to that extent. But so long as there is no termination the construction is for and on behalf of purchaser. Therefore, it remains a works contract within the meaning of the term as defined under the said Act. It must be clarified that if the agreement is entered into after the flat or unit is already constructed, then there would be no works contract. But so long as the agreement is entered into before the construction is complete it would be a works contract - Following decision of ASSOTECH REALTY PVT. LTD. Versus STATE OF U.P. [2007 (3) TMI 32 - HIGH COURT , ALLAHABAD] - Decided against assessee.
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2013 (10) TMI 1217 - MADHYA PRADESH HIGH COURT
Rectification of mistake - Jurisdiction of Commissioner - whether Section 54 of the VAT Act which deals with powers of rectification of mistakes by the Commissioner and the Appellate Board is attracted in the present case or not - Held that:- Commissioner may rectify its order for correcting any clerical or arithmetic mistake or any error arising therein from any omission. In the present case, we find there is neither any clerical nor any arithmetical mistake, there appears to be even no error arising from any omission. On the other hand in this matter till the passing of the impugned order, the relevant documents were not filed by the petitioner. Therefore the Assessing Officer has rightly observed that the provision of rectification is not attracted in the matter - Assessing Officer has committed no error in not exercising the jurisdiction of rectification in the facts of the present case - Decided against assessee.
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2013 (10) TMI 1216 - CESTAT CHENNAI
Franchisee Services – Bar of Limitation - Assessee contended that the demand was made on the basis of the agreement but the real state of affairs would reveal that the services fall under the category of Intellectual Property Rights Service - Held that:-The demand of tax on the franchisee service is based on the agreement - Prima facie, the tax is payable as per the agreement between the applicant and other persons - The submission of the learned counsel on the limitation aspect would be examined at the time of appeal hearing - applicant was directed to deposit a sum - Upon such deposit, pre-deposit of the balance dues stand waived and recovery thereof stayed during the pendency of the appeal – Partial stay granted.
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2013 (10) TMI 1215 - CALCUTTA HIGH COURT
Stay Application decided Ex-parte – Held that:- The observation of the Tribunal that the balance of convenience was against the writ petitioner, is unsupported by reasons - Without going into the question of whether the order ought to have been passed ex parte, the ex parte order set aside without prejudice to the rights and contentions of the respective parties - Tribunal directed to decide the application afresh in accordance with law after giving the petitioner and the department reasonable opportunity of hearing – Decided in favour of Petitioner.
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2013 (10) TMI 1214 - CESTAT CHENNAI
Valuation - value of free services provided during warranty period - inclusion of cost of parts / spares in the value – Waiver of Pre-deposit - Revenue was of the view that the goods were required for providing services and disputed that cost of such parts would form part of the value of taxable service – Assessee contended that the Revenue has demanded service tax considering the value of parts as reimbursable expenses as per Rule 5 of the Service Tax Valuation Rules and contend that this rule has been struck down - Held that:- Prima facie materials consumed in providing service as in re-treading of tyre was different from parts replaced as in servicing of vehicles because in the matter the transaction for the material is easily discernible as distinct - We take note of the decision of the Apex Court in the case of they relied on the decision of the Hon. Apex Court in the case of Bharat Sanchar Nigam Ltd. Vs UOI [2006 (3) TMI 1 - Supreme court] in a composite transaction involving both supply of material and providing of service the state governments and the central government can tax only the respective aspects falling within its legislative competence and both the governments cannot levy tax on the same aspect – Pre-deposits was waived till the disposal the of the appeal – Stay granted.
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2013 (10) TMI 1213 - CESTAT AHMEDABAD
Erection, installation and commissioning service or manufacturing activity - Waiver of Pre-deposit – Held that:- In the appellants own case M/s Neo Structo Construction Ltd. Versus CCE & C Surat I and vice versa. [2010 (3) TMI 252 - CESTAT, AHMEDABAD] has held that fabrication of structures at various sites would amount to manufacture and hence will not fall under the category of erection, installation and commissioning and no Service Tax liability arises - The applications for waiver of pre-deposit of amounts involved are allowed and recovery thereof stayed till the disposal of appeals – Stay granted.
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2013 (10) TMI 1212 - CESTAT AHMEDABAD
Renting of immovable property service - Ex-parte order - Held that:- The factual matrix is that the appellant herein, being a municipal corporation, has not filed any reply to the show cause notice which has been received by them. The said show cause notice is raising a huge demand. The appellant, being a municipal corporation, should have been more alert and due diligence should have been done by them at least filing reply to the show cause notice, contesting the matter wherever they feel so. In the absence of reply to the show cause notice, the adjudicating authority was constrained to pass an order despite the hearing notices being given to the appellant and not being attended to.
In our view, the non-cooperative attitude is very clear from the fact that they have been given personal hearing for 4 times and 2 times at their request. Be that as it may, we are still of the view that before coming to a conclusion that huge amount of Service Tax liability arises and its consequences, it requires that at least a reply, which needs to be filed, be considered by the adjudicating authority. To our mind, the issue needs reconsideration by the adjudicating authority after the reply is filed by the appellant - appellant being non-cooperative, they need to be put to some condition so that they file a reply and appear before the adjudicating authority as and when the adjudicating authority grants a personal hearing. - matter remanded back subject to pre-deposit of Rs. 30 lakhs - Decided in favor of assessee.
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2013 (10) TMI 1211 - CESTAT BANGALORE
Demand - Section 65(88) - Real Estate Agent service - suppression of facts - ex-parte order of Commissioner (Appeals) - On behalf of the appellant, it is contended that he did not receive notice of hearing - Held that:- it is clear that the consultants of the appellant were aware that the hearing of the stay application could be scheduled to 28.12.2011, as requested by them. The appellant however asserts that no fresh notice of rescheduled hearing on 28.12.2011 was received prior to that date - prima facie no infirmity either in the order of the Commissioner (Appeals) dated 28.12.2011 (directing pre-deposit of tax and interest) as a condition for waiver of pre-deposit of the penalty, nor with the order dated 17.1.2012 dismissing the appeal for failure of pre-deposit, we are inclined to consider the plea of the appellant for another opportunity to permit him to pursue the appeal against the adjudication order dated 26.8.2011 on merits, before the Commissioner (Appeals) - matter remanded back subject to deposit of entire demand of service tax with interest.
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2013 (10) TMI 1210 - CESTAT MUMBAI
Appropriate rate of tax - Works Contract Service - whether the applicable rate of service tax would be rate in force at the time of realisation of the consideration or would it be the rate of tax which was in force at the time of the rendition of the taxable service - Held that:- Service Tax is leviable on the rendering of services. Therefore, it is the rate prevalent on the date of rendering of the service, which is relevant for levy of Service Tax. The Board's instruction and also the decision of the Tribunal in the case of Ashok Kumar Jain (2012 (9) TMI 202 - CESTAT, NEW DELHI) confirm this view. Recently, the Hon'ble High Court of Delhi in the case of Ratan Singh Builders Pvt. Ltd. [2013 (5) TMI 450 - DELHI HIGH COURT] held that the rate that should be applied for levy of Service Tax is the rate prevalent on the date of rendering the services and not the rate applicable on the date of receipt of payment. Following these decisions, which apply to facts of the present case - Decided in favour of assessee.
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2013 (10) TMI 1209 - CESTAT BANGALORE
Demand - Incentives amount received from ICICI bank for utilizing their premises for lending activities - Held that:- demand for extended period could not have been invoked in this case on prima facie basis. However, in view of the fact that for the demand invoking larger period, the appellant has been required to deposit 25% of the demand, we consider it fair that the appellant should deposit service tax within the normal period with interest. Subject to fulfillment of this requirement within six weeks and report compliance on 22/08/2013, the requirement of predeposit of the balance adjudged dues is waived and stay against recovery is granted during the pendency of appeal - Decided against assessee.
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2013 (10) TMI 1208 - CESTAT BANGALORE
Valuation - Commercial or industrial construction service - inclusion of cost of material - Held that:- appellant has been able to show that the materials have been sold and have been assessed to VAT. Notification No.12/2003-ST requires sale of materials and evidence for sale of materials. In our opinion, appellant has been able to make out a prima facie case that the materials shown by them as sales satisfies the requirements of the Notification. Needless to say that the final decision will depend upon detailed consideration of statutory provisions, relevant VAT provisions, invoices issued, agreement between the parties etc. Since the appellant has made out a prima facie case on merits,, we consider it appropriate that there shall be waiver of predeposit. - stay granted.
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2013 (10) TMI 1207 - CESTAT BANGALORE
Waiver of pre deposit - Cable service - Held that:- entire amount of service tax with interest has been deposited after taking into account the CENVAT credit admissible and in view of the fact that there are decisions taking a view that CENVAT credit would be admissible subject to availability of documents and eligibility in cases where the duty/service tax has not been paid, we consider that the amount of service tax deposited after adjusting the CENVAT credit would be sufficient for the present purpose. We also take note of the fact that 25% of the penalty also has been paid and also appellant is challenging the penalty - amount deposited is sufficient for the purpose of stay. - stay granted.
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2013 (10) TMI 1206 - BOMBAY HIGH COURT
Accommodation after appointment - Accommodation to retired officers employed after retirement - Held that:- It appears that there are large number of Administrative Tribunals which are required to dispense justice to a large number of persons in the State of Maharashtra. Apart from Sales Tax Tribunal, there are other Tribunals and it appears that so far the policy of the State Government is not to give official accommodation to members of such Tribunals if they are retired Administrative Officers / Police Officers / Judicial Officers. Official accommodation is being provided to only those who are in service before reaching the age of superannuation. This Court fails to understand why the State Government should not provide official accommodation to the members of Administrative Tribunals even if they have retired and are now employed after their retirement - The State Government shall therefore consider providing official accommodation to the members of Administrative Tribunals even if such members are employed after their retirement from Administrative Service / Police Service / Judicial Service - Decided in favour of Appellant.
Shortage of employees - Held that:- against the strength of 10, there are only 3 persons manning the post of President and members of the Maharashtra Sales Tax Tribunal at Mumbai - retired Administrative Officers / Police Officers / Judicial Officers would be willing to accept the assignment only if they are given official accommodation and, therefore, let the State Government first decide the question of providing official accommodation to the members from amongst the retired persons - Decided in favour of Appellant.
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2013 (10) TMI 1205 - DELHI HIGH COURT
Confiscation of gold - Detention under Customs Act, 1962 - Petitioner contends that he came to know about the adjudication order only in 2009 - Held that:- As per the adjudication order in original, direction was made for absolute confiscation of 9 Kilograms of gold and penalty of Rs.8 lacs was imposed. The adjudication order was sent to the address of the petitioner at Punjab but the same could not be served as the petitioner was absconding. The petitioner cannot and should not be allowed to take advantage of his own wrong, as he was absconding and deliberately did not appear before the courts/authorities. Once show cause notice was issued and served on the petitioner, as accepted, he was aware about the adjudication proceedings. The plea taken by the petitioner that he came to know about the adjudication order only in 2009 is fallacious, wrong and cannot be accepted - Decided against petitioner.
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2013 (10) TMI 1204 - SUPREME COURT
Offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Rights of the accused - an opportunity to the appellant for holding any search in the presence of a Gazetted officer or a Magistrate - Necessity to comply with Section 50 of the NDPS Act - Quantification of punishment - Trial Court relied on the case of State of Punjab vs. Baldev Singh [1999 (7) TMI 630 - SUPREME COURT] - Held that:- after noticing three gunny bags, P.W.6, as an investigating officer, felt the need to invoke the provisions of Section 50 and thereby provide an opportunity to the appellant for holding any search in the presence of a Gazetted officer or a Magistrate. When once P.W.6 could assimilate the said legal requirement as stipulated under Section 50 of the NDPS Act, we fail to understand as to how principle No.1 in paragraph 25 of the decision reported in Balbir Singh (supra) could be applied. Unfortunately, the trial Court failed to understand the said principle set out in Balbir Singh (supra) in the proper perspective while holding that neither Section 42 nor Section 50 was attracted to the facts of this case.
The conclusion of the trial Court in having held that Sections 42 and 50 were not applicable to the case on hand was a total misunderstanding of the legal provisions in the light of the facts placed before it and consequently the conclusion arrived at for convicting the appellant was wholly unjustified.
All that the trial Court did was to hold that the version of the prosecution witnesses cannot be discarded merely because they were police officers and that the evidence of P.W.3 was sufficient to support the search and recovery of the narcotic substance from the appellant. The trial Court also held that the version of the defence witnesses was not worth mentioning.
It will be highly dangerous to simply affirm the ultimate conclusion of the trial Court in having convicted the appellant and the sentence imposed based on such conviction, as the same was without any ratiocination. It was most unfortunate that the High Court failed to independently examine the correctness of the findings recorded by the trial Court by simply extracting a portion of the judgment of the trial Court, while affirming the conviction - Judgment of the trial Court and the confirmation of the same by the High Court cannot be sustained - Decided in favour of assessee.
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2013 (10) TMI 1203 - CESTAT NEW DELHI
Valuation - Import of artificial marble slabs - Import of restricted goods without licence - Benefit of Notification No.41 (RE-2008)/2004 - 09 - Held that:- a restricted goods cannot be converted into freely imported goods since import was made without valid license and that is patent from record. Goods in question therefore do not loose the character of restricted goods. By artificial adoption of the value, restricted goods, do not become unrestricted goods. Accordingly valuation adopted by Customs has no basis on law for which declared value rejected by Customs is reversed.
Once the restricted goods imported were subject to licence condition which was not fulfilled by the appellant, there is no scope to interfere with the redemption fine and penalty imposed by Customs. Therefore, these two levies are confirmed. Ld. Adjudicating Authority shall verify the challans, if any, showing deposit of duty, redemption fine and penalty and grant consequential relief of refund if any that may arise upon proper verification in accordance with law - Decided partly in favour of assessee.
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2013 (10) TMI 1202 - CESTAT CHENNAI
Origin of goods - Imposition of anti dumping duty - Re export of goods on payment of redemption fine - Goods declared as manufactured in Malasia but later found to be Chinese products - Import of one set of plastic injection moulding machine - Sl. No. 12 to Notification No. 47/2009-Cus. dated 12.5.2009 - Held that:- the veracity of any document is also depending upon the contents of that document. It is seen that the country of origin certificate as produced by the importer has not specifically certified the goods in question are origin of Malaysia. The expression “produced” and “processed” as mentioned in the certificate are different and distinct in nature. Apart from that, the time of examination of the machines by the Customs officers, it is seen that the goods were manufactured in China by M/s. Ningbo Bole Import & Export. Co. Ltd. China on the basis of the technical literature and marking on the machines. Serial No. 12 to Notification No. 47/2009-Cus. dated 12.5.2009 provides that goods manufactured in China, even if exported from a country other than China, it would be liable for anti-dumping duty.
Goods were not prohibited for imports - Since, the goods were liable for confiscation under Section 111(m) of the Customs Act, 1962 the same has to be allowed for redemption even for the purposes of re-export - Court allow the re-export of the impugned goods on payment of redemption fine and penalty imposed by the LAA under Section 125 of the Customs Act, 1962 and under Section 112(a) ibid respectively. I also uphold the penalty imposed on Shri Chandradeep Baid, Managing Partner of the importer's firm under Section 114AA - Decided partly against Revenue.
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2013 (10) TMI 1201 - CESTAT NEW DELHI
Mis-declaration of Goods – Undervaluation of goods - Waiver of Pre-deposit – Held that:- The adjudication based on the materials recovered from a different importer and used against appellant - Present appellant has not suppressed the import value and there was no mis-declaration - Perused the gravity of the order as to the untruthful disclosure which made appellant’s application dismissed before settlement Commission - Invoices of the import resulted with undervaluation from the incriminating document recovered in the course of the proceeding - Keeping in view the financial difficulty expressed as well as the appropriation and encashment of Bank Guarantee stated, the appellant is directed to deposit the amount in two equal installments – Upon such submission rest of the duty to be waived till the disposal – Partial stay granted.
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