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Showing 41 to 60 of 553 Records
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2004 (6) TMI 603 - PATNA HIGH COURT
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... ... ..... 8 AIR 1963 SC 1760 and New Delhi Municipal Committee (1997) 7 SCC 339, the apex Court held that the tax on sale was not hit by article 285 of the Constitution. With regard to the case of State of Punjab 1990 79 STC 437 (SC), the apex Court held that no real argument was advanced before the court in the said case and the judgment of a larger Bench in In re Sea Customs Act case AIR 1963 SC 1760 was not pointed out. Thus, the apex Court held that the sales tax is an indirect tax and as such article 285(1) is not a bar in imposing tax on the sale of goods by the Union of India through its customs department. 22.. The second submission advanced on behalf of the petitioner is also devoid of any substance as the tax is imposed on the act of sale of goods regarding which bar under article 285(1) of the Constitution of India does not operate. 23.. In the result, there is no merit in this writ application and the same is dismissed. S.N. HUSSAIN, J.-I agree. Writ application dismissed.
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2004 (6) TMI 602 - KARNATAKA HIGH COURT
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... ... ..... 101 STC 168, the revisional authority was justified in invoking his revisional jurisdiction. This submission, in our opinion, has no merit. In our view the law laid down by the apex Court in Premier Breweries case 1998 108 STC 598 case would not give jurisdiction to the revising authority to revise an order of assessment passed by the assessing authority by following the directions and guidelines issued by the Supreme Court in assessees own case. Therefore, since one of the ingredients of section 21 of the Act is absent in these proceedings, the revisional authority could not have invoked his revisional powers to revise the order of assessment passed by the assessing authority for the assessment years 1986-87 to 1993-94. In view of the above, the Tribunal was justified in allowing the appeals filed by the assessee against the order passed by the revising authority. Accordingly, petitions deserve to be rejected and they are rejected. Ordered accordingly. Petitions dismissed.
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2004 (6) TMI 601 - KARNATAKA HIGH COURT
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... ... ..... arly, while answering question No.1, referred to above, however, with the liberty reserved to the parties to place such material, as they may deem fit, in support of their respective claim before the Tribunal. 15.. In the light of the discussion made above, we make the following ORDER (1) Order dated February 6, 1998 made in S.T.A. No. 587 of 1995 by the Tribunal is hereby set aside and the matter is remitted to the Tribunal for fresh consideration, in accordance with law, and in the light of the observation made above. However, liberty is reserved to parties to place such material, as they may deem fit, in support of their respective claim, before the Tribunal. (2) The Tribunal is directed to take a fresh decision in the matter as directed above, as expeditiously as possible and at any event of the matter not later than six months from the date of receipt of a copy of this Order. 16.. In terms stated above this revision petition is allowed and disposed of. Petition allowed.
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2004 (6) TMI 600 - ORISSA HIGH COURT
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... ... ..... imultaneously along with the assessment under the Orissa Sales Tax Act in accordance with sub-rule (1) of rule 15 of the Orissa Entry Tax Rules, 1999. 10.. We, accordingly, quash the impugned assessment made under the Orissa Entry Tax Act and the Rules made thereunder on the petitioner for the period 2000-2001 making it clear that by this order the assessment made for the said period under the Orissa Sales Tax Act will not in any way be affected. The petitioner will now be given a reasonable opportunity of proving the correctness and completeness of the return filed by him under the Orissa Entry Tax Act and the Rules made thereunder for the said period 2000-2001 and thereafter fresh assessment orders will be passed in the said Act and Rules in accordance with law after complying with the provisions of the Orissa Entry Tax Act and Rules. 11.. The writ petition is accordingly allowed. 12.. Urgent certified copy of this order be supplied on proper application. Petition allowed.
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2004 (6) TMI 599 - CALCUTTA HIGH COURT
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... ... ..... n requirements and once on the basis of such requirements such industrial unit is given such benefit, subsequently, by way of amendment such right cannot be taken away. The amendment that has been made will be applicable to the other units which are set up after the said amended definition of manufacture or manufacturing process have come into force. But the petitioner should be entitled to the benefit as was available at the time of obtaining first registration of eligibility certificate. 13.. I, thus, find substance in the contention of the petitioner that the Notification No. 2425 F.T. dated August 12, 1999 will not be applicable to the petitioner and the petitioner will be entitled to the remission of tax as mentioned in Notification No. 1324 F.T. dated April 28, 1995 issued under the Central Sales Tax Act, 1956. 14.. I, thus, allow the writ application. Let there be an order in terms of prayer (a), (b) and (c) of this writ application. No costs. Writ application allowed.
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2004 (6) TMI 598 - JHARKHAND HIGH COURT
Legislative Competence of Section 25-A of the Bihar Finance Act, 1981 - Adaptation of Section 25-A by the State of Jharkhand post-Bihar Reorganisation Act, 2000 - Validity of the Third Proviso to Section 25-A(1) of the Jharkhand Finance Act, 2001 - Challenge to the Notification dated June 19, 1993 - HELD THAT:- We are inclined to agree with the learned counsel for the petitioner that, in any event, the challenge to the third proviso to section 25A(1) of the Act is not barred by res judicata, either actual or constructive. The section, as it existed, was found to be suffering from many defects by the division Bench in [1992 (11) TMI 254 - SUPREME COURT] (Larsen and Toubro Ltd. v. State of Bihar). But ultimately, the division Bench, inspite of those defects, only declared that the section could not operate on the sale transactions under sections 4, 5, 14 and 15 of the Central Sales Tax Act and labour and other components involved in a works contract. By introducing the third proviso, what the State Legislature had attempted to do, is to meet those objections indicated in [1992 (11) TMI 254 - SUPREME COURT] (Larsen and Toubro Ltd. v. State of Bihar), or, in other words, to remove the foundation of the decision in[1999 (7) TMI 646 - PATNA HIGH COURT] (Larsen and Toubro Ltd. v. State of Bihar) so as to make this section legislatively competent and enforceable. The occasion to test its validity in the context of the third proviso newly introduced has arisen for the first time only now. Therefore, we are of the view that the challenge of the petitioner to section 25A(1) of the Act with a particular reference to the third proviso thereto, cannot be shut out on the ground that the said challenge is barred by res judicata. We, therefore, overrule the contention raised in that behalf, by learned counsel for the respondents.
We may also notice that there is a challenge to the notification dated June 19, 1993 issued in the year 1993, which has been adapted or which is to be deemed to be valid, by virtue of section 85 of the Bihar Reorganisation Act, 2000 and that challenge has to be tested in the context of the third proviso to section 25A(1) of the Act as a whole.
It appears to us that it will be really difficult for a Joint Commissioner to guesstimate taxable components in a works contract in the context of the third proviso to section 25A(1) of the Act. There also still remains the vices indicated by the division Bench in the decision in (Larsen and Toubro Ltd. v. State of Bihar) of the effect of a double taxation and the unreasonable retention of the amounts of the contractor announced by the State by a tardy provision for revision and the absence of a provision for interest for the entire period of retention and the absence of a machinery to make an assessment while issuing a certificate. This implies that the adaptation of the notification dated June 19, 1993 issued earlier, has clearly made the position totally confusing.
We do not find much merit in the contention of learned counsel for the petitioner that the issuance of the certificate by the Joint Commissioner would preclude the assessing authority from applying his mind and completing the assessment, since he was only an officer subordinate to the Joint Commissioner. Issuance of a certificate under the third proviso to section 25A(1) of the Act is entirely different from the process of assessment to be completed by the assessing officer. It is not as if the assessing officer cannot go behind the certificate or beyond the certificate issued by the Joint Commissioner and complete the assessment based on the actual transactions disclosed before him at the time of assessment. It is not reasonable to expect that an assessing authority will complete the assessment not based on the materials available before him at the time of assessment, but would be guided by a certificate issued on estimate by the Joint Commissioner.
It is, no doubt, true that the State is entitled to protect the collection of the revenue by providing a deduction, like the one contained under section 25A(1) of the Act. But, at the same time, the State has to ensure that the said provision for deduction is based on an intelligible criteria and is not based merely on speculation or by including within its purview, transactions which could not be taxed by the State. What has occurred here in view of section 25A(1) of the Act, the third proviso thereto, the adaptation, either express or implied, of the notification dated June 19, 1993 and the issuance of the notification dated January 2, 2002 is to make the deduction arbitrary, which is anathema to the Constitution. We are, therefore, inclined to hold that section 25A(1) of the Act read with the notification dated June 19, 1993 is not workable and, consequently, arbitrary and unreasonable. The addition of the third proviso to section 25A(1) of the Act has failed to remove the defects in section 25-A of the Bihar Finance Act. The vices noted by the division Bench in [1992 (11) TMI 254 - SUPREME COURT] (Larsen and Toubro Ltd. v. State of Bihar) still remain. The provision as amended, remains unworkable and arbitrary. Section 25A(1) of the Jharkhand Finance Act, 2001 and the notification dated June 19, 1993 are hence struck down as unconstitutional.
Conclusion: The court held that Section 25A(1) of the Jharkhand Finance Act, 2001, read with the notification dated June 19, 1993, remained arbitrary and unworkable. The addition of the third proviso failed to rectify the defects. Consequently, Section 25A(1) and the notification were struck down as unconstitutional. The State and authorities were restrained from collecting tax u/s 25A from the assessment year commencing on April 1, 2004, with any amount collected to be adjusted or refunded. Writ petitions were allowed.
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2004 (6) TMI 597 - GAUHATI HIGH COURT
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... ... ..... n on the basis of finding of facts arrived at by the authorities with due application of sound discretion, the decisions relied on by Dr. Todi, learned Senior Counsel for the petitioner, viz., 1971 27 STC 199 (MP) (Pannalal Umesh Kumar of Ghoghar v. Commissioner of Sales Tax), 1970 25 STC 211 (SC) (Hindustan Steel Ltd. v. State of Orissa) and 1990 78 STC 283 (Gauhati) (Braja Lal Banik v. State of Tripura) to bring home his argument that the action of the petitioner was bona fide and there was no element of mens rea are not applicable and misplaced. Needless to say that the ratio of any decision must be understood in the background of the facts of that case. A case is only an authority for what it actually decides and not what logically follows from it. 34.. For the foregoing reasons and discussions I do not find any merit in the writ petition and the same is dismissed. However, there shall be no order as to costs. 35.. Writ petition stands dismissed. Writ petition dismissed.
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2004 (6) TMI 596 - ANDHRA PRADESH HIGH COURT
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... ... ..... that it is the only rate of tax which was reduced by way of amendment and a new right was not conferred on the dealers. Had this provision been enacted in the month of August, 1996, perhaps, the petitioner would have been right in approaching this Court with the prayer he has made in this writ petition. But what the amendment did, was only reducing the rate of tax from 4 per cent to 2 per cent, and to enable the dealer to pay the tax at the rate of 4 per cent there was a requirement under rule 6 of the rules to make an application within a stipulated period of time. It may not also be out of place to mention here that the rule 6 of the Rules prescribes one month period from the date of commencement of the business. Even in this case, the petitioner has moved an application beyond one month of the enforcement of the amendment. For these reasons, we do not find any merit in the writ petition. The writ petition is accordingly dismissed. No order as to costs. Petition dismissed.
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2004 (6) TMI 595 - GAUHATI HIGH COURT
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... ... ..... in 1998 110 STC 109 (MP) and Birla Jute and Industries Ltd. v. State of M.P., reported in 2000 119 STC 14 (SC) (2000) 5 SCC 271, I need not go into this aspect of the matter inasmuch as I have already held hereinabove that the eligibility certificate, issued in the present case was within the ambit of the powers of the authorities concerned and the cancellation thereof, in the face of the facts and the law relevant thereto is arbitrary, illegal and being violative of the principles of natural justice cannot be allowed to stand good on record. 114.. In the result and for the reasons discussed above, this writ petition succeeds. The impugned orders, dated June 3, 2000 and June 5, 2000 aforementioned, cancelling the eligibility certificate issued to the petitioners are hereby set aside and quashed. The bank guarantee furnished by the petitioners in terms of the interim directions of this Court shall accordingly stand released. 115.. No order as to costs. Writ petition allowed.
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2004 (6) TMI 594 - GUJARAT HIGH COURT
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... ... ..... orporation v. State of Gujarat 2002 125 STC 369 (Guj) it is apparent that where the transactions are found to be genuine they will not be affected by provisions of section 30AA and the provisos thereunder. In the case of the petitioner the assessment had already been framed under section 41(3) of the Act. In the circumstances, it is apparent that the impugned orders dated August 26, 2003 (annexure A) and December 29, 2003 (annexure B) will have to be quashed and set aside. Accordingly order dated August 26, 2003 made under section 48A of the Act and order dated December 29, 2003 made under section 30B of the Act are declared to be bad in law and are quashed and set aside. The respondents are directed to release stock of oil and the petitioners shall not be required to maintain minimum stock of oil as ordered on January 13, 2004 while granting ad interim relief. 9.. The petition is accordingly allowed. Rule made absolute. There shall be no order as to costs. Petition allowed.
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2004 (6) TMI 593 - KARNATAKA HIGH COURT
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... ... ..... e Appellate Tribunal on this point. It is not the case of the revision petitioners before this Court, that the decision of the Tribunal relying on the decision of this Court is either contrary to the facts of the case or the question of law decided in the said case. 10.. The Tribunal while answering, as we have already noticed, has just followed the law laid down by this Court in Vishista Solvent Oils Pvt. Ltd. case 2001 121 STC 492 and in our opinion, it is expected of the Tribunal to follow the decisions rendered by the superior courts. If that is so, in our opinion, it cannot be said that the Tribunal has failed to decide or has erroneously decided the questions of law. 11.. In view of the above, in our opinion, no question of law would arise for consideration of this Court. In that view of the matter, interference with the order made by the Tribunal is not called for. 12.. Accordingly, the revision petitions are rejected. Ordered accordingly. Revision petitions rejected.
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2004 (6) TMI 592 - ANDHRA PRADESH HIGH COURT
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... ... ..... e light of the specific stand taken in the counter-affidavit by the first respondent and on a careful analysis of the impugned order and also the order made by this Court in W.P. No. 22434 of 1999 this Court is satisfied that the applicability of doctrine of merger cannot be stretched too far to an assessment of this nature especially in the light of the fact that the original assessment was left untouched by the prior judicial verdict and an interpretation that in the light of the above factual position the present order would be contrary to the prior order made by this Court would lead to absurdity. Apart from this aspect of the matter, this Court is thoroughly satisfied that absolutely no prejudice is caused to the writ petitioner by the present impugned order. Hence, for the reasons referred to above, this Court sees no valid reasons to interfere with the impugned order and accordingly the writ petition is dismissed as devoid of merits. No costs. Writ petition dismissed.
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2004 (6) TMI 591 - ITAT MUMBAI
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... ... ..... arges arises only when the property is not self-occupied but is let out. In this view of the matter, we are of the opinion that the non-occupancy charges levied by the society will have to be considered under Section 23 even while arriving at the estimate of the annual letting value of the property. We accept the assessee s contention and direct the AO to recompute the annual letting value. 5. The other issue relates to the disallowance of l/3rd of the cosmetics and costume expenses of the assessee. The argument before us was that the AO has himself allowed 2/3rd of the expenses and there was no justification for disallowing l/3rd thereof. However, these are personal expenses and we do not see how they can be allowed as a deduction even though the AO has himself allowed 2/3rd thereof. In our opinion, the expenses cannot be allowed at all. However, since only 1/3rd has been disallowed, we confirm the disallowance to that extent. 6. In the result, the appeal is partly allowed.
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2004 (6) TMI 590 - GUJARAT HIGH COURT
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... ... ..... The second ground about pendency of the appeal before the Tribunal is also untenable because the Tribunal has not granted any stay in favour of the department and against the petitioner regarding operation of the order of the Commissioner (Appeals). The impugned show cause notice is not at all tenable and is issued by the Assistant Commissioner of Central Excise, Ahmedabad-I in defiance to the order of the Commissioner (Appeals) and cannot be countenanced. The impugned show cause notice is, therefore, without any authority of law and deserves to be quashed and set aside. 7. Accordingly, this petition is allowed and the impugned show cause notice dated 16.2.2004 is quashed and set aside. It goes without saying that ultimately if the department succeeds before the Tribunal, the petitioner will have to refund the amount. It is also clarified that we have not gone into the merits of the controversy which is the subject matter of appeal before the Tribunal. Rule is made absolute.
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2004 (6) TMI 589 - ITAT MUMBAI
Income derives from hotel business - Advances given to subsidiary companies - Commercial expediency and business prudence in advancing loans to a subsidiary - difference of opinion between the Accountant Member and Judicial Member - Third Member Order - Whether, the learned CIT(Appeals) is justified in deleting the addition being disallowance on account of concessional rate of interest charges on advances made to the subsidiary company ?
The learned Accountant Member, held that act of giving advances forms integral part of hoteliers’ business. In that light, no concession was provided with regard to advances made to the subsidiary company, which made investment in shares of other public limited companies having business dealing with the assessee-company. This way the assessee was benefited to a large extent and was compensated for the concession in the rate of interest allowed.
Further observed that it was the prerogative of the businessman how to run his business and it was not open to the revenue to prescribe what expenditure the assessee should incur and in what circumstances. Thus, confirmed the order of the learned CIT (Appeals) in his proposed order.
The learned Judicial Member did not agree with the view taken by the learned Accountant Member. He took into account the decisions in the case of Shankar Theatres and Doctor & Co.[1983 (1) TMI 50 - BOMBAY HIGH COURT] with relevant portions extracted in his proposed order. The learned Judicial Member observed that it was not disputed by the assessee that it had diverted borrowed funds to advance loans to its subsidiaries (wrongly stated as sister concern). There is no material on record to support this contention that the assessee was able to earn large operating fees only due to the fact that it advanced monies to its subsidiary for a concessional rate of interest. In absence of such material and nexus, the disallowance made by Assessing Officer amount in question is justified and the CIT(A) was not right in deleting the disallowance....." With the above observations, the learned Judicial Member restored the order of the Assessing Officer in his proposed order.
Third Member Order - HELD THAT:- In the present case, the assessee has elaborately explained that on account of restrictions on investment in its hands to buy shares of other public limited companies from whom the assessee was receiving operation fees, the subsidiary company was used to buy above shares and for that purpose loan was advanced to the subsidiary. It was a measure of business prudency. The loan advanced helped the assessee to earn substantial amount of operating fees. In fact, it was more than 60% of total receipts. This was besides dividend to be received from the subsidiary. Having regard to all the circumstances and benefits to the parties, it was agreed that interest on advance be charged @ 6% per annum. This advance was made wholly and exclusively for the purpose of business and to earn income. I find lot of force in the above submissions. In fact the revenue authorities did not challenge above facts/background which clearly showed that advance was made for purpose of business. It was a measure of business prudency.
Further there is nothing to show that agreement to advance loan was not bona fide entered into or was intended to divert income belonged to the assessee. The Assessing Officer while disallowing and making the addition in dispute, did not keep above legal principles in mind and applied subjective standards. The disallowance made is unjustified. I agree with the learned Accountant Member and uphold the deletion of the disallowance.
Thus, I agree with the view taken by the learned Accountant Member.
Final Decision: The Honourable President, ITAT, sitting as the Third Member, concurred with the views of the learned Accountant Member, answering the referred question in the affirmative. The issue was thus decided in favor of the assessee, and the deletion of the disallowance was upheld.
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2004 (6) TMI 588 - ITAT, MUMBAI
Penalty - For concealment of Income ... ... ... ... ..... eral authorities cited at p. 2 of the compilation of judgments filed before him. The assessee rsquo s explanation cannot be said to be mala fide because there is no evidence to show that the bank staff had checked the stock figure furnished by the assessee at Rs. 5,39,175 and found the same to be false or incorrect. In fact, the assessment order itself records the fact that the stock statement as on 31st March, 1997, was given to the bank only in October, 1997, and this means that the bank staff could not have got it verified in the month of March itself. In my view, all the three conditions required for invoking Explanation 1(B) below to section 271(1)(c) should be satisfied. None of them has been satisfied in the present case. In this view of the matter, I hold that the order of the CIT(A) cancelling the penalty imposed on the assessee requires no interference. The same is upheld and the appeal filed by the Department is dismissed. 7. In the result, the appeal is dismissed.
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2004 (6) TMI 587 - ITAT CHENNAI
Deduction of interest income u/s 10B - Inclusion of sales tax refund - Export-oriented undertaking - Treatment of provision written back in the books of account - Eligibility of resale value of Special Import License - HELD THAT:- The case of the assessee is that since the provision is written back in the accounts, it has to be treated as business income and the assessee is eligible for deduction u/s 41(1). From the order of the first appellate authority, it appears a remand report was called for from the Assessing Officer. It appears for the assessment years 1999-2000 and 2000-01, the assessee was allowed exemption u/s 10B fully which included the provision. Once the excess provision is withdrawn and admitted as income for the assessment year under consideration, which will not automatically qualify for deduction u/s 10B. It may be an income derived in the respective assessment year after a provision was made. However, for the purpose of claiming deduction u/s 10B, the assessee should show that the profit was received from the export for the assessment year under consideration. In our view, though by way of legal fiction, the excess provision was treated as income u/s 41(1) of the Income-tax Act, it cannot be treated as income derived from export. Therefore, we do not find any infirmity in the order of the first appellate authority. Accordingly, we confirm the same.
Refund received by the assessee from sales tax authorities. As already discussed regarding the issue of excess provision, the refund of sales tax may be a business income because of section 41(1) of the Income-tax Act. However, it cannot be construed as income received from export of business or it would not form part of export turnover.
Now coming to the special import license, the assessee received this special import license because of the scheme framed by the Government of India to encourage the export business. It may be a business income because of section 28(iii) of the Income-tax Act. For the purpose of claiming deduction under section 10B, the income should be derived from export business and form part of export turnover. The immediate source for special import license may be the scheme framed by the Government of India and not the export. As held by the Madras High Court in the case of Menon Impex (P.) Ltd.[2002 (9) TMI 75 - MADRAS HIGH COURT], the income should be derived from the export business. In view of the above, we do not find any infirmity in the order of the first appellate authority. Accordingly, we confirm the same.
In the result, both the appeals filed by the assessee stand dismissed.
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2004 (6) TMI 586 - ITAT DELHI
Revision - Of orders prejudicial to interests of revenue ... ... ... ... ..... der of the Assessing Officer passed in the present case as alleged by the learned CIT and in the absence of this jurisdictional aspect, the learned CIT, in our opinion, was not justified in assuming jurisdiction under section 263. In that view of the matter, we set aside his impugned order passed under section 263 restoring that of the Assessing Officer passed under section 143(3). 8. As regards the contention raised by the learned counsel for the assessee before us on the merits of the issue relating to assessee rsquo s claim for deduction under section 80HHC, we find merits in the contention of the learned DR that the learned CIT having not decided this issue on merits in his impugned order, it is neither proper nor necessary to render any verdict or this issue especially keeping in view our decision rendered in the preceding paragraphs of this order setting aside the order passed by the learned CIT under section 263. 9. In the result, the appeal of the assessee is allowed.
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2004 (6) TMI 585 - ITAT CHANDIGARH
Cash credit ... ... ... ... ..... trovert the finding of the ld. AR. 8. We have heard the rival submissions, perused the orders of the tax authorities and gone through the material available on record as well as the case law cited by the assessee. We find that the issue involved is same and identical as decided by the Supreme Court in the case of Steller Investment Ltd. (supra). We also do not find any force in the plea advanced by the ld. DR that the ratio of the aforesaid decision is not applicable in the case of a private limited company, in the light of the decision in the case of CIT v. Down Town Hospital (P.) Ltd. 2004 267 ITR 439 (Gauhati), wherein the issue was decided in favour of the private limited company, i.e., the assessee, following the decision in the case of Steller Investment Ltd. (supra). We, therefore, following the aforesaid decisions of the Supreme Court and the Gauhati High Court decide the issue in favour of the assessee and against the revenue. 4. In the result, the appeal is allowed.
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2004 (6) TMI 584 - ITAT DELHI
Charitable or religious trust ... ... ... ... ..... poses which are duly accepted and acknowledged by the revenue authroities. The income of the trust during the year has been sought to be accumulated by the assessee trust for the purposes specified by the assessee trust during the assessment proceedings. We see no ground whatsoever to deny the benefit of section 11(2) merely for the reason that in the original Form No. 10 enclosed with the return such purposes have not been indicated by the assessee trust. We feel that a liberal and purposive approach in conformity with the legislative intent should be adopted while considering the claim of benefit under section 11(2) by the assessee trust. 6. Viewed in the backdrop of these factual and legal perspective, we feel that this is a fit case for allowing benefit of accumulation as per the provisions of section 11(2). We, therefore, reverse the findings of the learned CIT(A) on this count and allow the appeal of the assessee. 7. In the result, the appeal of the assessee is allowed.
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