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Showing 501 to 520 of 1052 Records
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2011 (4) TMI 1025
Sales tax on works contract - composition of tax - section 67 of the Gujarat Sales Tax Act, 1969 - notice dated March 14, 2001 issued in form 45, the petitioner was informed that the petitioner was liable to pay sales tax and additional tax of 20 per cent and interest under section 47(4) (a) of the Act and penalty under section 45(6) as the petitioner was not granted permission for composition under section 55A in the assessment period 1990-91 - notice is barred by limitation as the same has been issued beyond the period prescribed under section 67(1)(a) of the Act, even otherwise on merits also, the said notice cannot be sustained - decided in favor of assessee.
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2011 (4) TMI 1023
Building developer - Whether the construction activity being performed/undertaken by assessee as a service to Co-operative Housing Society and its members, is a taxable activity or not - there is nothing to indicate that the respondent has been hired as a contractor by the society so as to bring the activities of the respondent within the ambit of taxable services as contemplated under section 65(105)(zzzh) of the Act - In the absence of there being any service provider and service recipient in relation to the transaction in question, the Tribunal was justified in holding that the transaction in this case cannot be considered as taxable
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2011 (4) TMI 1022
Exclusion of the payment made for import from the export for the purpose of computation of deduction u/s 10A - netting of export is permissible as per the RBI circular, there should not be any reduction of such amount while calculating the export turnover. He has further contended that the assessee has utilized the export proceedings for import of goods which is used for the export business of the assessee, therefore, this expenditure cannot be considered as sale proceed not brought into India - in the case of J. B. Boda & Co. (P.) Ltd. (1996 - TMI - 40198 - SUPREME Court) - assessee's appeal is allowed Reduction in expenditure incurred in foreign currency while calculating the export turnover - AO has not given the findings that the other expenditure in foreign currency are for providing the technical services outside India, therefore, the same cannot be excluded as per the meaning of export turnover provided under Explanation (2)(IV) - expenditure other than freight and insurance not incurred for technical services outside India cannot be excluded while calculating export turnover Interest earned on deposits as income from other sources - in the case of CIT v. Menon Impex (P.) Ltd. (2002 - TMI - 12192 - MADRAS High Court) Held that the interest received by the assessee was on deposits made by it in the banks, It was the deposit which was the source of the interest income. The mere fact that the deposit was made for the purpose of obtaining letters of credit which were in turn used for the purpose of the business of the industrial undertaking did not establish a direct nexus between the interest and the industrial undertaking and, therefore, the assessee was not entitled to get the benefit of section 10A in relation to the interest, appeal of the assessee is partly allowed
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2011 (4) TMI 1021
Petitions to sanction the scheme of amalgamation - objection raised by the Revenue Department is that as per the assessment for the year 2008-09 completed on December 31, 2010, a demand of 487.46 crores is raised against M/s. Essar Telecommunication Holding Ltd. (ETHL) - also stated that the transferor company is wholly owned subsidiary company of M/s. Essar Teleholdings Ltd., and therefore because of the demand on M/s. Essar Teleholdings Ltd., for the assessment year 2008-09, the scheme be not approved. The objection is also raised that the scheme is being objected to by M/s. Vodafone International BV - no claim against the transferor or transferee company and the demand against the holding company, has also been stayed by the appellate authority, objections of the Income-tax Department to the scheme of amalgamation are therefore rejected.
Locus Standi of other person raising objection - Only objection which may be raised by any person in response to notice can be with respect to the legality of the scheme or it being in violation of any law - in the absence of violation of substantial law, merely because certain rights of third party are going to be affected, cannot be a ground to permit third party to file objection to the scheme, once the scheme is as per statutory provisions of sections 391 to 394 of the Companies Act and approved by majority - objection of the petitioner with regard to the locus standi of M/s. Vodafone International, to file objection is therefore upheld, and it is held that M/s. Vodafone International B. V., has no locus standi to file objection, against the scheme of amalgamation - scheme of amalgamation being beneficial to both the transferor and transferee companies, its shareholders and its creditors, these company petitions are ordered
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2011 (4) TMI 1017
Reopening of assessment - Jurisdiction - Satyam scam - The petitioners have an effective remedy under the Act to appear before the assessing authority in the reassessment proceedings, raise all grounds available to them in law including that he lacks jurisdiction to reopen the assessment and, in case an adverse order is passed, to prefer appeals to the Commissioner of Income-tax (Appeals). As the remedy, under article 226 of the Constitution, is discretionary the High Court has always the discre- tion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere - writ petitions fail and are, accordingly, dismissed
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2011 (4) TMI 1016
MAT- Computation of book profit u/s 115JB - Electricity tax - tax audit report of the assessee clearly mentioned the amount to be contingent in nature - for this reason that the A.O. held it as not allowable while computing the total income under the normal provisions of the Act - held that:- Assessing Officer never made any effort to make a book profit computation as mandated under Section 115JB of the Act - Non consideration of law and not making a computation prescribed under law would definitely render the order of the A.O. erroneous and prejudicial to the interest of the Revenue - direction of the CIT to disallow the above items under Section 115JB of the Act, no doubt, such a direction to do an assessment in a particular manner would be beyond the powers of a CIT under Section 263 - assessment order was erroneous in so far as it was prejudicial to the interest of the Revenue is correct - order of the CIT would thus stand modified to the effect that the Assessing Officer shall examine each of the above issue.
Disallowance of depreciation - disallowance of depreciation Rs.6,40,000/- on let out property made by the A.O - A.O. had not examined the claim of depreciation of the assessee vis-à-vis each of the let out property owned by it - nothing in the assessment order which gives a break-up of the disallowance made by the A.O - omission by the A.O. in making a scrutiny of each of the claim of depreciation of the assessee - no error in the order of the CIT in considering such non-application of mind to be erroneous and prejudicial to the interest of the Revenue - order of CIT that the A.O. shall disallow the claim of the assessee cannot be accepted. Hence, vis-à-vis the depreciation claim, order of CIT modified and direct the A.O. to verify the claim of the assessee and deal with it in accordance with law.
Deduction of bad debts – power of Tribunal under section 254 - double deduction - as mentioned by the learned CIT, nothing was produced by the assessee to prove that it consistently followed an accounting practice whereby provision made in one year was reversed it to the extent debts were considered bad, in a subsequent year and a write-off effected for such bad debts - arguments taken by the learned A.R. that this Tribunal did not have any power under Section 254 of the Act to modify an order of CIT under Section 263 of the Act - where the order of the A.O. was palpably erroneous and prejudicial to the interest of the Revenue, just because the CIT slightly overstepped his powers, would not be a sufficient reason to quash his order in toto, but it is the duty of the Tribunal to properly modify it so as to effectuate the purpose of Section 263 - no merit in this appeal of the assessee against the order of the CIT under Section 263 of the Act - order of CIT shall stand modified to the extent that the A.O. can consider each of the issue raised by the CIT in his order, in accordance with law after giving the assessee an opportunity to represent its case.
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2011 (4) TMI 1014
Import of goods under DEEC scheme - demand of on unutilized items - notification no. 30/97-Cus., dated 1-4-1997 - assessee has fulfilled the export obligation completely - The excess material in fact had not been utilized completely because of efficient utilization of the raw material. The wastage was less. They ceased manufacturing the pagers and the said material became absolete. Therefore the said unused material had been written off in their books of accounts. They had complied with the conditions stipulated in Notification 30/97-Cus., dated 1-4-1997. - tribunal decided the issue in favor of assessee - held that:- assessee is justified in contending that this appeal preferred by the Revenue challenging the order passed by the Appellate Tribunal holding that the assessee is not liable to pay Customs duty, interest and penalty and setting aside the levy of duty and demand notice issued by the Department is not maintainable before this Court.
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2011 (4) TMI 1013
Writ Petitions - rebate on export of goods - petitioner herein has sought for a Writ of Certiorarified Mandamus to quash the order of the third respondent and to direct the first respondent to restore a sum of Rs. 12,63,03,430/- by way of rebate on export of goods during the period March 2001 to February, 2002 under Rule 18 of the Central Excise Rules, 1944 - assessee had paid the duty on the exported goods and the factum of export is also admitted by the Revenue and the fact that the assessee’s original claim of CENVAT credit is now reversed by the assessee paying duty thereon, there being no leakage of revenue on the assessee giving the particulars relevant to its case, as had been required under Notification No. 41 of 2001, no impediment in considering the claim of the assessee for a rebate under Rule 18 of the Central Excise Rules - first respondent directed to consider the claim of the assessee for rebate - the assessee is hereby directed to comply with the requirements, as are applicable to the assessee’s case, as given under Notification No. 41 of 2001 before the first respondent, to enable him to consider the claim for rebate - Writ Petitions are disposed of with the directions as stated above
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2011 (4) TMI 1012
Valuation of goods under central excise - the respondents had been clearing their product in glass bottles after making payment of duty and removing them to the duty paid godown situated adjacent to their factory. The duty paid stocks so removed were then sent to the customers in lorries owned by the respondents or engaged on hire on long term basis. For that purpose, the goods were delivered to the customers/dealers at higher price and cash memos were issued while unsold stock and empty bottles were brought back to the company’s godown. - Commissionier allowed six deductions from the value.
Held that:- No justification for the Commissioner to decide the claim regarding six deductions by answering the same in favour of the assessee. - in the case of Madras Rubber Factory Ltd. Case (1995 -TMI - 44005 - SUPREME COURT OF INDIA) , held that it is for the assessee to decide where to sell his goods. He can choose to sell his goods at the gate that is at the place of removal. He may choose to sell through his selling organisation where the goods are sold in the course of wholesale trade through depots outside the place of removal, the assessee would independently incur expenses not only for the transport of the goods from the place of removal to the depots but also on maintaining and running of depots but these expenses according to the Union of India v. Bombay Tyres International (1983 -TMI - 41501 - SUPREME COURT OF INDIA) are on the same par as after sale with reference to the service charge and advertisement charges and hence cannot be deducted - Decided in favor of revenue by way of remand.
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2011 (4) TMI 1011
Seizure of records and documents as well as goods - Whether the process of prilling amounts to manufacture or not - The petitioners obtain Ammonium Nitrate Melt, a chemical having composition of NH4NO3 and remove by process evaporation/prilling extra moisture from the Ammonium Nitrate Melt which according to the petitioners does not result in any change in the chemical composition at all of he duty paid Ammonium Nitrate Melt purchased by the petitioners from the open market.
Held that:- it is apparent that it is not permissible for the officers of the Central Excise department to act contrary to the Circulars issued by the Board. In the facts of the present case, of the Circular No. 44/89 dated 19th July, 1989 the Board had desired that every jurisdictional Collector of Central Excise should strictly ensure that no Central Excise duty is paid on such prilled ammonium nitrate as obtained from melt ammonium nitrate and no Modvat Credit of such duty, even if paid is allowed. The said Circular continued to hold the field despite the subsequent decision of the Tribunal in I.D.L. Chemicals Ltd. v. Collector of Central Excise (1993 - TMI - 82628 - CEGAT, NEW DELHI ) as well the decision of the Larger Bench of the Tribunal in Supreme Chemical Works v. Collector of C.Ex. Jaipur (2000 -TMI - 48825 - CEGAT, NEW DELHI) till the same came to be withdrawn by Circular No. 848/06/2007-CX., dated 18th April. 2007. In the circumstances, in the light of the law laid down by the Apex Court in the above referred decisions, it was not permissible to the respondents to act contrary to the Circular dated 19th July, 1989 till the same came to be withdrawn on 18th April, 2007.
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2011 (4) TMI 1010
Stock Transfer - F form - Revisional orders - first respondent held that F forms filed by the petitioner did not meet the requirements of the CST (R and T) Rules ; they were incomplete ; the assessing authority had mechanically accepted the F forms and allowed exemption ; the F form submitted by the petitioner did not contain important details such as description of the goods sent, quantity or weight of goods, name of the road or railway transporter, and the date on which delivery was taken, etc. ; and filing of defective F forms amounted to non-filing of F forms - first respondent, without even stating what the alleged defects in each of the F forms were, has made a omnibus statement in the show-cause notice dated March 6, 2009 that the petitioner had submitted defective F forms - show-cause notice falls foul of the audi alterant partem rule necessitating the revisional order passed by the first respondent being set aside for violation of principles of natural justice - first respondent shall issue notice afresh to the petitioner giving details of F forms which he found defective, give them opportunity of being heard, permit them to rectify the defects - writ petitions are disposed of accordingly
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2011 (4) TMI 1009
Whether the indulgence in private practice would amount to indulgence in ‘trade’ while holding the post of a government doctor - offense under Section 168 of the IPC cannot be held to have been made out against the appellants even under this Section as the treatment of patients by a doctor cannot by itself be held to be engagement in a trade as the doctors’ duty to treat patients is in the discharge of his professional duty which cannot be held to be a ‘trade’ so as to make out or constitute an offence under Section 168 of the IPC - the allegation even as per the FIR as it stands in the instant case, do not constitute an offence either under the Prevention of Corruption Act or under Section 168 of the IPC - orders passed by the High Court set aside and quash the FIR registered against the appellants - no prima facie case either under Section 168 of the IPC or Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act is made out under the prevailing facts - FIR registered against them under IPC or Prevention of Corruption Act is not fit to be sustained. Consequently, both the appeals are allowed.
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2011 (4) TMI 1005
Appellant charitable and religious trust, only for charitable and religious purposes - applied for registration u/s. 12A of the Act - A trust or institution created or established for the benefit of Scheduled Castes, backward classes, Scheduled Tribes or women and children shall not be deemed to be a trust or institution created or established for the benefit of a religious community or caste within the meaning of clause (b) of sub-section (1) - if the application of s. 13(1)(b), granting so, has no bearing on the registration u/s. 12A, as contended, the same would become irrelevant for our purpose. Toward this, we find that the words 'minorities and backward classes' do not appear only in clause 11(z) of the Deed, but runs through the trust deed - s. 13 only restricts the application of ss. 11 and 12, the same impinging on the denominational character of the trust, as well as the fact that s. 13(1)(b) extends to the entire income of the trust (irrespective of the extent of application for the benefit of a particular religious community or caste), the same [s. 13(1)(b)], where applicable, could validly lead to denial of registration u/s. 12A of the Act - registration stands rightly denied by the ld. CIT in the instant case, and his order is accordingly upheld - assessee's appeal is dismissed
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2011 (4) TMI 1004
Whether CIT(A) has erred in confirming the disallowance u/s 40(a)(ia) on the ground that the assessee has filed Form No.15J with CIT on 26.02.2009 instead of on or before 30th June, 2006 in as much the there is no failure to deduct tax at soure under section 194C since the assessee has received Form No.15-I from the sub-contractors before making payment to them - if assessee has obtained form No.15-I then it is substantial compliance of the provision of section 194C - addition deleted by holding that tax was not liable to be deducted from the payments made to sub-contractors on account of they submitting form No.15-I to the contractor and therefore, no addition u/s 40(a)(ia) could be made - appeal filed by the assessee is partly allowed
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2011 (4) TMI 1003
Valuation - contemporaneous import - nature of goods i.e. whether goods are Stock Lot or otherwise - held that:- in the present case impugned goods have not been declared as stock lots and same have not been found so on examination also. - Decided against the assessee.
We are, however, not fully satisfied with the methodology adopted by the department on the quantification of duty demand on the past consignments inasmuch as this method does not appear to be sound. We find that two different methods have been adopted by the Revenue in respect of the goods covered by the past consignments - value of some taken on gross basis and some on kg. basis. We are of the view that the total quantity of glass chatons and total quantity of glass beads imported in the past 15 consignments should be segregated, thereafter the quantity of Swarovski glass chatons and glass beads seized from the premises of the appellants should be deducted from the total quantity of the glass chatons and glass beads. This will give net quantity of Swarovski glass chatons and beads i.e. the goods which are not available with the department.
Based on the ‘base price’ of glass Chatons and glass beads as indicated above, duty should be worked out on gross basis on the past consignments which are not available.
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2011 (4) TMI 1002
Whether the exemption from Special Additional Duty of Customs (SAD in short) leviable under Section 3A of the Customs Act, 1975 provided in Notification No.34/98 dated 13.06.1998 its succssor Notifications would be available, when the goods are sold in an area where no sales tax or purchase tax is chargeable - Appellant are not eligible for duty exemption from Special Additional Duty of Customs on Kerosene imported by them under Notification No.34/98-CUS dt.13.06.1998 or under successor Notifications in respect of Kerosene sold in the State of Orissa without payment of sales tax - exemption has been availed in complete violation of the declaration/undertaking given by them at the time of importation, there is a clear mis-declaration on their part and the duty demand for the extended period of 5 years under the provision of Section 28 of the Customs Act, 1962 is valid in law - duty demand for the period beyond 5 years from the date of Show Cause Notice is incorrect - penalty imposed under Section 114A of the Customs Act, 1962 is not legally sustainable - duty demand needs to be re-quantified - matter remanded to the Commissioner of Customs for the limited purpose of quantification of demand i.e. excluding the demand in respect of period beyond five years and also for computing the duty demand on the correct value, i.e. excluding the Basic Customs Duty and Special Duty of customs since those levies were exempted during the relevant period
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2011 (4) TMI 997
Rebate - Misdeclaration, suppression of facts and fraud with intent to evade duty and misuse the export incentive schemes - Held that:- there were misdeclaration, suppression of facts and fraud with intent to evade duty and misuse the export incentive schemes, benefit of rebate can be denied when there is short payment by reasons of fraud, collusion or any wilful misstatement or suppression of facts, no infirmity in the order and therefore upholds the same, revision application is rejected being devoid of merit
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2011 (4) TMI 996
Penalty imposed is for duty evaded imposed under Section 11AC of the Central Excise Act independent of Rule 25(b) - Once penalty under section 11AC is imposed there is no scope for imposing penalty under Rule 25(b) for the same offence - Since the demand was already paid before the issue of SCN, the adjudicating authority should have given the option to pay applicable interest and 25% of the duty evaded penalty imposed on Director under rule 26 of the Central Excise Rules, no legal requirement that the penalty should be equal to the duty evaded - After giving concession of paying 25% of duty evaded to the main appellant it is harsh to impose this amount of penalty on the Director of the company. So reduce this penalty to Rs. 70,000/-, Appeals are disposed of
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2011 (4) TMI 995
Manufacturing of Gutkha and Pan Masala - Demand of duty on 5 pouch packing machines under Rule 9 read with proviso to Section 11A(1) of the Act along with interest under Section 11AB of the Act - held that:- A perusal of Notification No. 42/2008, dated 1-7-2008 clearly reveals without any ambiguity that the same Retail Sale Price can hold good for two different notified goods i.e. for/Pan Masala and Pan Masala containing tobacco (Gutkha). The concept of notified goods, as shall/be clear from the above is not at all dependent upon and determined by ‘Retail Sale Price’. Likewise the concept of Retail Sale Price as spelt out in the entire scheme regulated by Notification No. 42/2008 and 30/2008 is not at all determined by the nature of specified goods. It cannot therefore be the case of anybody that with change in notified goods, there will he change in Retail Sale Price also and therefore only because two different notified goods are manufactured on a machine, two different Retail Sale Prices are involved. The case of the department rests on assumption that only because two different notified goods were manufactured on the same machine during the period, their Retail Sale Prices get changed and deeming provision relating to new Retail Sale Price gets attracted. Facts of the case as also the legal provisions do not at all warrant this assumption. - Decided in favor of assessee.
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2011 (4) TMI 985
Penalty - Cenvat credit - Joint Commissioner by his order disallowed the modvat credit - suppression of fact - wrong utilization of cenvat credit - appellant themselves state that credit was availed on the inputs in question and was utilized prior to January 1998. Till March, 2000, the factory of the Appellants remained closed. During this period, the concerned inputs were destroyed. Being so, undisputedly, it was necessary for the Appellants to reverse the credit. Admittedly, even after re-commencement of the factory of the Appellant, no steps were been taken by the appellants to reverse the credit or repay the amount - Held that:- once it was known to the appellant that the goods on which credit was taken, such inputs could not be utilized in terms of the Rules for manufacture of final product, the appellant was aware that from that point of time, that such utilization of credit was rendered wrongful, it cannot be aid that the appellants were not guilty of suppression of fact. In the case of Punjab Communication case and in Kalayni Brakes this aspect arose for consideration, no infirmity in the order passed by the Commissioner, appeal is dismissed
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