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Showing 381 to 400 of 1054 Records
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2011 (2) TMI 1253
Whether stainless steel tubes, seamless stainless steel tubes, stainless steel ball bearing tubes and stainless steel scrap fell under item 54 of the First Schedule or item 2 of the Third Schedule to the APGST Act - The expression "that is to say" - petitioner contended that the stainless steel tubes, seamless stainless steel tubes, stainless steel ball bearing tubes and stainless steel scrap sold by them fell under item 2 of the Third Schedule, and levy of tax at six per cent was illegal - Held that:- "stainless steel tubes, seamless stainless steel tubes, stainless steel ball bearing tubes and stainless steel scrap" fell under item 2 of the Third Schedule, and not item 54 of the First Schedule to the Act Stock transfer - whether supply of goods to other units of the Department of Atomic Energy would constitute stock transfer or are inter-State sales liable to tax under the CST Act – Held that:- Transfer of goods by NFC to other units of the Department of Atomic Energy does not constitute "sale" as they are all units of the Department of Atomic Energy, and the Department of Atomic Energy cannot be said to have sold goods to itself. The STAT was, therefore, justified in holding that the transaction was in the nature of a stock transfer, and did not amount to inter-State sale
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2011 (2) TMI 1252
Whether the petitioner is entitled to concessional rate of tax on purchase of natural rubber used for rubber backing of polypropalin rubber mats done on job-work basis – Kerala General Sales Tax Act, 1963 - Held that:- petitioner satisfies both the conditions in the notification inasmuch as it is an industrial unit purchasing the rubber and though as a job-worker, it carries out industrial activity to make the product a rubber product within the meaning of the notification, denial of concessional rate to the petitioner will defeat the very purpose of notification which is promotion of rubber based industries in the State. - Petitioner is entitled to concessional rate for the purchase of rubber under the notification for the relevant year and accordingly the revision case is allowed by vacating the order of the Tribunal confirming the reassessment and by restoring the original assessment at concessional rate of tax on the purchase turnover of rubber used in rubber backing work done by the petitioner for others
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2011 (2) TMI 1251
Whether after 1.4.2003, New Okhla Industrial Development Authority (Noida) (the Petitioner) is a local authority within the meaning of section 10(20) of the Income Tax Act, 1961 petitioner was also declared to be an Industrial Township within the meaning of proviso to article 243Q of the Constitution by the notification dated 24.12.2004 and it performs the service akin to a municipality. It is a municipality or at least a municipal committee within the meaning of section 10(20) of the Act – Held that:- In Adityapur case the Supreme Court considered the provisions of the Bihar Act and held that the Adityapur-Authority is not a local body within the meaning of Section 10(20) of the Act, amendment, with effect from Aril, 1, 2003, the Explanation "local authority" was defined to include only the authorities enumerated in the Explanation, which does not include any authority such as the appellant [The Adityapur-Authority] , the Petitioner namely Noida is also not a local authority within the meaning of Section 10(20) of the Act, writ petition dismissed
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2011 (2) TMI 1250
Modification/rectification/amendment of the advance ruling – Held that:- Commissioner in his petition is not merely requesting for a modification/rectification or amendment of the ruling but he is asking for an ab initio review of the ruling pronounced by the Authority, Commissioner has not been able to substantiate his claim that a mistake of law or facts has occurred requiring us to invoke regulation 18 to modify the said advance ruling, Commissioner has also not been successful in convincing us that there has been any mistake apparent from the record or there is any factual or material error in the records for us to order any rectification or amendment of the said mistake or error under Regulation 19 or 20 of the Procedure Regulations. The Authority does not have the jurisdiction under the law to reconsider or review its own ruling as has been sought by the Commissioner, petition is rejected
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2011 (2) TMI 1249
Valuation of goods - value of imported goods were enhanced on which the duty was paid by the respondent without any protest – Held that:-respondent have produced the records of negotiations made with their foreign suppliers for the impugned goods and considering the submissions of the respondent, the lower appellate authority has set aside the adjudication order, valuation of goods wherein the value was enhanced without any evidence, appeal filed by the Revenue is rejected
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2011 (2) TMI 1248
Whether Central Sales Tax can be levied on the sales made by the petitioner from SEZ unit which is deemed to be a territory outside the territory of India u/s 53 (1) of SEZ Act, to DTA in view of Article 286 of the Constitution of India – Held that:- SEZ Act, 2005 has taken into consideration and has provided for amendment of the various taxing statutes, or modified them, for fulfilling the object and purpose of the Act. Section 7 provides for exemption from tax, duties or cess on any goods or services exported out of or imported into or produce from DTA by unit in SEZ or a developer subject to terms and conditions as may be prescribed and be exempt from the payment of tax, duties or cess under all enactment specified in the First Schedule. Section 27 of the SEZ Act, 2005 applies Income Tax Act with certain modifications in relation to developers and interpreneurs carried out authorised operations in SEZ and modifications are specified in Second Schedule. Section 57 amends the enactment specified in the Third Schedule, which are amended by SEZ Act, 2005. The Central Sales Tax is not included in any of these Schedules.
Whether in view the various duties, namely, basic custom duties, under Customs Act, 1962, counter-veiling duties, additional duties, anti dumping duties, safeguard duties levied under the Customs Tariff Act, 1935 on the importer of the goods of domestic tariff area from the units situate in SEZ, the sale in question is purely a sale in the course of import; since these duties are leviable only on the import of the goods from outside the customs territory of India – Held that:- no substance in the contention that the sales from SEZ unit to unit in DTA shall be deemed to be imports. No such presumption can be drawn from Section 5 (2) of the Central Sales Tax Act or any of the provisions of the SEZ Act of 2005, deeming provision is not to be inferred in law. It has to be either provided by legislation validly elected and competent to declare such deeming provision with its consequences. There can be no inference drawn from deeming provisions from the provisions of any Act. The deeming provision also cannot be inferred from the analogy drawn from different Acts, writ petition is dismissed
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2011 (2) TMI 1247
Whether ITAT was justified in holding that the amount paid as advance for purchase of machinery during the year under consideration was the amount utilized for the purchase of machinery within the meaning of Section 32AB of the Income Tax Act – Held that:- Finance Act, 1986, introduced section 32AB relating to investment deposit account. The provisions apply in relation to the assessment year 1987-88 and subsequent years. Under these provisions, an assessee is entitled to a deduction of an amount up to 20 per cent of the profits of 'eligible business or profession', if the said amount is either deposited with the Development Bank within the period up to six months from the end of the previous year or before furnishing the return, whichever is earlier, or is utilised during the previous year for the purchase of a new ship, new aircraft, or new machinery or plant, ITAT was justified in holding that the amount paid as advance for purchase of machinery during the year under consideration was the amount utilized for the purchase of machinery within the meaning of Section 32AB of the Income Tax Act
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2011 (2) TMI 1246
Whether I.T.A.T. Was justified in confirming the order of the DCIT(A) deleting the amount on the basis of finding given by the Tribunal vide order dated 25.9.1989 when the said order was not in conformity with the earlier findings of the Tribunal for the Asstt. Years 1976-77 and 77-78 – respondent raised a preliminary objection that in the case, tax liability is less than Rs.2 lakh, so the aforesaid reference is incompetent and may be decided in the light of the judgment of this Court in Commissioner of Income- Tax vs. Ashok Kumar Manibhai Patel and Co., (2007 - TMI - 35003 - MADHYA PRADESH HIGH COURT) – Held that:- Board Circular dt.27.3.2000 was applicable even to the old references which are still pending and are undecided. By circular dated 27.3.2000 financial limit to the extent of tax liability of Rs.2 lakh was fixed, which is applicable in this case, question need not be answered in the light of the aforesaid circular of the CBDT and the judgment of this Court in Ashok Kumar Manibhai Patel and Co.(supra), reference is disposed of finally
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2011 (2) TMI 1245
Whether Tribunal was right in dismissing the appeal of the Department by holding that the Dy. Director of Inspection has no power to make reference to Valuation Officer under s. 131(1A) – Held that:- aforesaid provision was not invoked by the Dy. Director of Inspection (Inv.) and none of the authorities has dealt with the case in the light of s. 131(1) of the Act, so aforesaid question does not arise for consideration, appeal dismissed by holding that aforesaid question does not arise in the appeal
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2011 (2) TMI 1244
Voluntary Disclosure of Income Scheme, 1997 – Held that:- respondent declined to grant the certificate contemplated under section 68(2) by his communication dated May 15, 1998, on the ground that the payment was not made within the period permitted by the law. Such a communication is unsustainable, second respondent directed to issue the necessary certificate to the appellant, during the pendency of the litigation before this court, an assessment on the basis of exhibit P3 notice has already been made by order, initiation of such proceedings itself is not permissible under the Scheme, assessment also to be illegal, judgment under appeal is set aside and the appeal is accordingly disposed of
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2011 (2) TMI 1243
Writ petition - eligibility certificate - section 12 of the Madhya Pradesh General Sales Tax Act, 1958 - petitioner is claiming exemption under Notification No. A-3-24-94-STV (108) dated October 6, 1994 providing exemption scheme for new units – Held that:- clause 3(i) specifically deals with different situations where the dealer who establishes a new industrial unit on or after 6th May, 1994 or who undertakes expansion in the existing industrial unit on or after such date shall have the option to avail of the facility of deferment of payment of tax under the Madhya Pradesh Deferment of Payment of Tax Rules, 1994 in lieu of the facility of exemption from payment of tax under this notification. It is not the case here. The petitioner never claimed for deferment of the payment of tax, so the sub-clause is not applicable in the present case. Sub-clause (ii) applies where effective steps were taken for establishing a new industrial unit before May 6, 1994, but who commences commercial production in such industrial unit on or after the said date, such dealer was having an option to avail of the facility of exemption from payment of tax under any scheme, to a new industrial units in force before May 6, 1994. But in the present case, the aforesaid position is not in existence and the said clause (ii) is also not available, matter is remanded to the State Level Committee to consider the case of the petitioner for grant of eligibility certificate
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2011 (2) TMI 1242
Exercise of powers u/s 127(2) of Income-tax Act, 1961 - transferred IT cases of petitioners - from Dy. Commissioner of Income-tax, Circle-2, Jaipur to DC/ACIT, Rourkela (Orissa) – Held that:- it has not been controverted by the respondents authority that the notice to the assessees despite individual assessees, was never served and at no point of time, they were called upon at any stage in regard to centralization and transfer of their IT cases from Jaipur to Rourkela. Whereas the defence of respondents authority that Kamlajeet S. Ahluwalia was always representing all the assessees; as such no individual notice to the assessees was required to be served, in absence of material on record about authorizing Kamaljeet S. Ahluwalia to represent on behalf of other assessees named supra; or holding power of attorney on their behalf and they being individual assessees, their rights are seriously prejudiced in the absence of notice being individually served and opportunity of hearing being afforded to each of them, which is a mandate of law u/s 127(2) of IT Act, the very order impugned regarding transfer of IT cases qua petitioners named (supra) is held to be not sustainable and deserves to be set aside.
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2011 (2) TMI 1241
Whether the paper imported by them and sold under the name "Euro craft waste paper" falls under entry 102 of the First Schedule to the Kerala General Sales Tax Act, 1963 taxable at four per cent or whether the item falls under entry 106 of the same Schedule taxable at eight per cent – Held that:- paper imported and sold by the petitioner was already used up for its primary and intended use for which it was specifically made, i.e., as an absorbent material for use in printing where excess ink in the course of printing currency is removed with the paper and so much so, it is waste paper, no matter it is capable of being used as packing material, claim of the petitioner that the item falls under entry 102 as waste paper and consequently allow the revision by reversing the order of the Tribunal and by restoring the order of the first appellate authority. However, since the Government Pleader expressed doubt about the factual position with regard to prior use, it is open to the Department to ascertain through inspection and examination as to whether the paper was used in the way stated by the petitioner prior to import and if not, to move this court for review of the judgment
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2011 (2) TMI 1240
Refund of the excess excise duty paid - appellant had made claim for refund under Section 11-B of the Act, 1944, excise duty was payable only on sale value, which was Rs. 30,50,000/-. By mistake, the appellant has miscalculated the sale value by adding cost of machining of Rs. 5,01,760/- and by adding the cost of packing and forwarding of Rs. 15,052.80/- in a sale value of Rs. 30,50,000/- Held that:- Tribunal has travelled beyond the show cause notice and has given a reasoning in paragraph 5 of the order passed by the Tribunal that the appellant has not established whether incidence of excess paid duty was not passed to the customer in the form of availment of MODVAT/CENVAT credit. Had this reason been given in the show cause notice, the appellant could have given detailed answer. Moreover, the customer is not a manufacturer of the goods and, therefore, no question of availment of MODVAT/CENVAT credit, whatsoever, arises, Tax Appeal is allowed and disposed of
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2011 (2) TMI 1238
Whether the petitioner is an "eligible assessee" - assessee is engaged in the business of manufacture of Aluminium Profiles. The details of international transactions in terms of section 92B of the Act between the assessee and its Associate Enterprise are given in Form 3CEB. Relevant details regarding international transactions were produced by the assessee and are kept on record. After discussion and based on records produced, no adjustment is being made to the arm's length price of the transactions – Held that:- Plain reading of clause (b) of sub-section (15) of section 144C would show that an assessee can be stated to be an eligible assessee as referred to in sub-section (1) of section 144C in whose case variation referred to in the said sub-section arises as a consequence of order of Transfer Pricing Officer passed under sub-section (3) of section 92CA. Petitioner cannot be stated to be an eligible assessee as defined in clause (b) of sub-section (15) of section 144C of the Act. Procedure for issuance of draft order calling for his objection and taking further steps as laid down under section 144C therefore, would not apply, petition is disposed of
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2011 (2) TMI 1237
Whether Tribunal is right in holding that TDS and prepaid taxes should be set off against the total taxes payable and then only a MAT credit should be allowed - Whether the Tribunal was correct in holding that on the MAT credit over which refund had been allowed, interest u/s. 244A has to be paid by ignoring the proviso to Section 115JAA(2) of the Act – Held that:- MAT credit is to be set off first, thereafter TDS, then the advance tax paid and then the tax paid along with returns, no interest is claimable against the MAT credit. Therefore, it is clear that under no circumstances, MAT credit can become the subject matter of refund. It is only liable to be adjusted for five years and it does not carry any interest, decision in favour of the assessee and against the revenue
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2011 (2) TMI 1236
Whether the calculations have to be made on completion of the project after registering the plots in favour of the intended purchasers or customers, who had invested the amount from time to time, or as and when the amount is paid and accrued to the benefit of the petitioner for each assessment years and, also to consider the deductions available as per Section 80IB(10) of the Act – grievance of the petitioner is, neither the Assessing Officer nor the Revisional Authority namely, the Commissioner of Income Tax have taken into consideration the tax holidays and the exemption granted as per Section 80IB(10) of the Income Tax – Held that:- to pass appropriate orders in accordance with law, the matter is remanded to the Assessing Officer, Petitions are accordingly allowed
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2011 (2) TMI 1235
Exemption under Section 10 (23C)(iii)(ab) of the Income Tax Act - assessing officer denied the exemption on the ground that, the assessee is not registered under Section 12A nor under Section 10(23C)(iv) of the Act, as such, the assessee cannot claim exemption – Commissioner was of the view that in order to get exemption, Government Aid should be more than 70%, in this case it is not more than 34%, he upheld the order of the assessing authority - assessee running 18 units, out of which, 12 units are not receiving any grants and only 6 institutions are receiving the Government Grant. If the percentage of Government Grant in respect of only 6 institutions is taken into consideration, this percentage would be 68.57%. If the Government Grant is considered as against all the 18 units, percentage would be 34.33% - Held that:- when 36.42% constitutes grant of the government aid to the educational institutions involved in the said case, it was held, it satisfies the requirement of Section 10(23C)(iii)(ab), government aid centers the status of Substantially Government Aided Institution and the assessee is entitled to the exemption, the order passed by the tribunal is in accordance with law and do not suffer from any legal infirmity, appeal is dismissed
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2011 (2) TMI 1234
Penalty under Section 271C - assessee had failed to deduct tax at source under Section 194-I of the Act - before the assessing officer they contended that M/s. Wipro Limited had paid the entire tax. Therefore, it was under the impression that no TDS may be made - revenue contended that the cause shown by the assessee does not constitute sufficient cause so as to waive penalty under Section 273B – Held that:- If really no rent is paid as contended by the assessee and only in the course of audit proceedings, on advice they made and entry and consequently the payee has paid the entire tax probably they can be given the benefit under Section 273B, orders passed by all the authorities are hereby set aside, matter is remanded to the assessing officer to give an opportunity to the assessee to put forth his case in writing or produce documents to substantiate his claim and thereafter to consider his case on merits
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2011 (2) TMI 1233
Permanent establishment - as per Double Taxation Avoidance Agreement, the profit attributable to the liaison office held as a permanent establishment in India – Held that:- merely because the buyers place orders directly with the Head Office and make payment directly to the Head Office and it is the Head Office which directly sends goods to the buyers, would not be sufficient to hold that the work done by the liaison office is only liaison and it does not constitute a permanent establishment as defined in Article 5 of DTAA, liaison office is undertaking an activity of trading and therefore entering into business contracts, fixing price for sale of goods and merely because, the officials of the liaison office are not signing any written contract would not absolve them from liability, finding recorded by the tribunal is based on legal evidence and that the finding that the liaison office is a permanent establishment as defined under Article 5 of DTAA and therefore, the business profits earned in India through this liaison office is liable for tax is established, appeals are dismissed
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