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Showing 121 to 140 of 645 Records
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2007 (5) TMI 573 - DELHI HIGH COURT
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... ... ..... ibunal, Sales Tax, correctly interpreted section 24 of the Delhi Sales Tax Act, 1975 for upholding the reopening of the assessment of the petitioner on the ground that documents sent by the Enforcement Branch inadvertently were not considered by the assessing officer because of the rush of time-barred cases? (2) If question No.1 is answered in the affirmative, whether on the facts and in the circumstances of the case, two assessment orders can stand together in respect of the same assessment year? No other question is pressed or argued. In view of the above, we issue writ of mandamus directing the Appellate Tribunal, Sales Tax, to refer the aforesaid questions of law for the opinion of this court. The parties will appear before the Appellate Tribunal, Sales Tax, for settling the statement of case. Ten copies of the paper book containing the statement of case as well as all relevant documents be sent to this court in accordance with the Rules. The petition stands disposed of.
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2007 (5) TMI 572 - MADHYA PRADESH HIGH COURT
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... ... ..... uld be refunded to the petitioner. We hasten to clarify that if the petitioner was liable to pay tax along with the return for the period from April 1, 2006 to March 31, 2007 and the petitioner has claimed adjustment of the deductions so made against the tax payable by it along with return, the amount deducted and adjusted towards the tax payable along with the return will not be refunded to the petitioner. We further make it clear that notwithstanding this direction to refund the amount deducted from the bills of the petitioner by respondent No. 4, the petitioner would be liable to tax in case such liability is fixed by the assessment made on the petitioner. We further clarify that the amounts deducted prior to the Madhya Pradesh VAT (Amendment) Act, 2007 from the bills of the petitioner will be refunded by the respondent No. 4 or the department with whosoever the amounts so deducted are available. With the aforesaid directions, the writ petition is disposed of accordingly.
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2007 (5) TMI 571 - RAJASTHAN HIGH COURT
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... ... ..... could be saddled with the penalty for alleged misuse of declaration form in the said case. On the other hand, case law relied upon by learned counsel for the assessee are clearly supportive of his case and while the Allahabad High Court set aside the penalty under section 10A of the CST Act on the purchase of diesel generating set against C forms the West Bengal Tribunal allowed the benefit of purchase of welding and drilling machines to be included in capital investment for computing benefit under section 10F of the Bengal Finance (Sales Tax) Act, 1941. Therefore, this court finds that the authorities below have erred in imposing penalty under section 10A of the CST Act for purchase of lathe machine at concessional rate of three per cent against declaration in form C. Accordingly, this revision petition is allowed. The impugned orders of all the three authorities below are set aside and the penalty imposed on the assessee under section 10A of the CST Act is also set aside.
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2007 (5) TMI 570 - GAUHATI HIGH COURT
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... ... ..... nsidering, therefore, the matter in its entirety and in the interest of justice, this writ petition is disposed of with direction to the respondents, particularly, respondent No. 3, not to demand deposit of security by invoking his powers under sub-section (4) of section 76 of the said Act unless the conditions, prescribed in sub-section (4) of section 76 of the said Act, are fulfilled. It is also made clear that respondent No. 3 can demand security only on fulfilment of conditions indicated hereinabove and not because of the fact that a general direction has been given by respondent No. 2 not to allow any vehicle, carrying coal, to cross the barrier of check gate, at Jagiroad, without depositing security. It is further made clear that in terms of the observations and directions given hereinabove, the interim directions, passed in this writ petition on March 13, 2006, shall stand modified. With the above observations and directions, the writ petition shall stand disposed of.
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2007 (5) TMI 569 - ORISSA HIGH COURT
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... ... ..... 4(12)(b). We are satisfied on a scrutiny of the impugned order of assessment under annexure 3, that since it has been passed by the Sales Tax Officer and not by the assessing authority of the range, the order of assessment cannot withstand judicial scrutiny and is held to be without jurisdiction not being in conformity with rule 34(12)(b). Accordingly, the order impugned, i.e., assessment order vide annexure 3 is set aside. Let the petitioner appear before the Assistant Commissioner of Sales Tax, Cuttack II Rang-opposite party No.2 on June 5, 2007. On his appearance, the Assistant Commissioner may serve a statutory notice on him and proceed with the matter in accordance with law. The Sales Tax Officer, Assessment Unit, Jagatsinghpur-opposite party No.1 is directed to transmit the records of the assessee to opposite party No.2. The writ application is, accordingly, disposed of. A free copy of this order be handed over to the learned counsel for the Revenue for due compliance.
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2007 (5) TMI 568 - ORISSA HIGH COURT
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... ... ..... t the check-post itself. This court is conscious of the provision of making payment of tax on the basis of the way-bill and the invoice. In the case of a person carrying the consignment, the same procedure may be followed and if the person waives notice and pays the tax, that may be recorded in the notice itself. (2) If the check gate officer finds that the consignment under the invoice has to be assessed at a higher value, he has to indicate the reason for the higher valuation in the said form under rule 80(12) of the Orissa Value Added Tax Rules, 2005. There should be something on record to show that there is at least a minimum application of mind by the authority. This court of course is not suggesting about a detailed examination at this stage. (3) If tax is paid at the check-post, the same can be considered at the time of detailed assessment by the taxing authority. With these directions, this writ petition is disposed of. Misc. Case No.5082 of 2007 is also disposed of.
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2007 (5) TMI 567 - SUPREME COURT
Whether the service rendered by an ESI hospital is gratuitous or not, and consequently whether it falls within the ambit of `service' as defined in the Consumer Protection Act, 1986?
Whether Section 74 read with Section 75 of the Employees' State Insurance Act, 1948 ousts the jurisdiction of the consumer forum as regards the issues involved for consideration?
Held that:- The appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of sub-section (1) or (2) or (3) of Section 75 of the Employees' State Insurance Act, 1948. Appeal allowed.
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2007 (5) TMI 565 - SUPREME COURT
Whether the facts and circumstances warrant a finding of negligence and deficiency in service on the part of BDA necessitating award of compensation?
Held that:- Both parties - BDA as also the Respondent proceeded on the basis that time was not the essence of the contract. The houses were delivered in 1997 at a price agreed in 1986. By 1997, the value had gone up many times (more than 10 times according to BDA). The Respondent had the benefit of such rise in value. The respondent also failed to prove any negligence on the part of BDA. In this factual background, we find it difficult to hold that there was 'deficiency in service' on the part of BDA entitling the respondent for any compensation by way of interest or otherwise. Consequently, the respondent is not entitled to any compensation.
Where a development authority undertakes to construct buildings or allot houses or building sites either as amenity or as benefit, it amounts to rendering of a service and will be covered by the expression 'service made available to potential users' referred to in section 2(o) of the Act. But this Court did not examine or deal with the question whether a contract for sale of a house premises, (that is site with a constructed house), as contrasted from a contract of construction amounted to 'providing a service of any description to a potential user including housing construction'. Be that as it may. Though there appears to be some logic in the contention of BDA, we do not propose to decide the issue, as we are allowing this appeal on other grounds, and as this contention was not specifically pressed before the Commission. We leave this question open for decision in an appropriate case.
Allow this appeal and set aside the order dated 11.4.2002 of the National Consumer Disputes Redressal Commission. As the main prayer for completion and delivery of the houses was complied with during the pendency of the complaint, and as we have held that respondent is not entitled to interest or compensation, the complaint is disposed of with a direction to BDA to complete the process of execution and registration of sale deed/s in respect of the houses without claiming any extra cost, within three months from today. The cost of stamp duty and registration in respect of such sale deeds will be borne by the respondent.
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2007 (5) TMI 564 - SUPREME COURT
Whether Clause 4 of Work Order No.114 dated 16th of May, 1985 which says that any dispute arising between the department and the contractor/society shall be referred to the Superintending Engineer, Anandpur Sahib, Hydel Circle No. 1 Chandigarh for orders and his decision will be final and acceptable/binding on both the parties" constituted an arbitration agreement?
Held that:- Demand notice was served on the appellants by the respondent on 16th April 1990 and the application under section 20 of the Act was filed on 13th November 1990 which is admittedly within the period of limitation as contemplated under Article 137 of the Limitation Act. The right to apply accrued for the difference arising between the parties only when service of demand notice was effective, which should be the date for holding that the difference had already arisen between the parties. Such being the settled law, we are of the view that the application under section 20 of the Act was clearly filed within the period of limitation. Appeal dismissed.
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2007 (5) TMI 563 - SUPREME COURT
Whether Arbitral Tribunal has jurisdiction?
Held that:- Where a party has received notice and he does not raise a plea of lack of jurisdiction before the arbitral tribunal, he must make out a strong case why he did not do so if he chooses to move a petition for setting aside the award under Section 34(2)(v) of the Act on the ground that the composition of the arbitral tribunal was not in accordance with the agreement of the parties. If plea of jurisdiction is not taken before the arbitrator as provided in Section 16 of the Act, such a plea cannot be permitted to be raised in proceedings under Section 34 of the Act for setting aside the award, unless good reasons are shown.
Though respondent no.1 had ample opportunity to appear before Justice N.N. Goswami (Retd.) and raise a plea of jurisdiction to the effect that he had been wrongly appointed as arbitrator by appellant no.1, yet, it chose not to do so. This feature of the case weighs heavily against respondent no.1. The learned Single Judge has taken this fact as an additional ground for rejecting the petition filed by respondent no.1 under Section 34 of the Act and we are in agreement with the said view. Appeal is allowed with costs throughout and the judgment and order dated 7.12.2004 of the Division Bench of the High Court is set aside.
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2007 (5) TMI 562 - SUPREME COURT
Validity of auction sale - Auction sale took place due to default in payment of loan taken from Respondent - Held that:- Under Rule 107(11)(g) of the Rules, 15% of the price of the immovable property has to be deposited by the auction purchaser at the time of the purchase, and the remaining 85% of the purchase money has to be paid within 15 days from the date of such sale. Admittedly, in the present case, the aforesaid 85% of the purchase money was not paid within 15 days from the date of the sale nor even thereafter - Following decision of Manilal Mohanlal Shah and others vs. Sardar Sayed Ahmed Sayed Mahmad and another [1954 (4) TMI 46 - SUPREME COURT] and Balram vs. Ilam Singh and others [1996 (8) TMI 473 - SUPREME COURT] - Auction sale of the appellants’ property was a nullity, and there was no valid auction sale - said property be again auction sold after advertising it in at least two well-known newspapers having wide circulation, mentioning therein the date, time and place of the auction sale and after complying with the procedure under Rule 107 of the Rules - Decided partly in favour of Appellant.
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2007 (5) TMI 561 - SUPREME COURT
Retirement benefits - Held that:- Appeal dismissed. The legal effect of the order passed by the learned Single Judge could be that he became entitled to receive all retiral benefits. Thus, it is permissible for him to raise all contentions in support of the order passed by the learned Single Judge, in terms of the provisions contained in Order 41, Rule 33 of the Code of Civil Procedure and the principles akin thereto.
Furthermore, the respondent has retired as far back as on 01.11.1996. At this late stage, we are of the opinion that we should not allow an illegality to be perpetuated which is otherwise apparent on the face of his record.
Therefore, are of the opinion that although the learned Single Judge and also the Division Bench of the High Court may not be correct in passing the impugned judgments, we should in exercise of discretionary jurisdiction under Article 142 of the Constitution of India, should allow the Writ Petition of the respondent to do complete justice to the parties.
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2007 (5) TMI 560 - SUPREME COURT
Whether an arbitration clause comes to an end, if the contract containing such arbitration agreement, was abrogated?
Whether section 11 of the Act is inapplicable in regard to the arbitrations which are to take place outside India?
Whether the appointment of the Arbitrator, and the reference arbitration are governed by the laws in force in Hong Kong and not by the Arbitration and Conciliation Act, 1996?
Held that:- Appeal allowed. Sub-section (1) of section 16 of the Act makes it clear that while considering any objection with respect to the existence or validity of the arbitration agreement, an arbitration clause which forms part of the contract, has to be treated as an agreement independent of the other terms of the contract; and a decision that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. The first contention is, therefore, liable to be rejected.
Merely because the parties have agreed that the venue of arbitration shall be Hong Kong, it does not follow that Laws in force in Hong Kong will apply. The arbitration clause states that the Arbitration and Conciliation Act, 1996 (an Indian Statute) will apply. Therefore, the said Act will govern the appointment of arbitrator, the reference of disputes and the entire process and procedure of arbitration from the stage of appointment of arbitrator till the award is made and executed/given effect to.
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2007 (5) TMI 559 - CALCUTTA HIGH COURT
Petition challenging the order of Vesting u/s 14T(3) of the West Bengal Land Reforms Act - Provision contained in Section 14V vis-a-vis the definition of land as contained in Section 2(7) and Section 3A(3) of the West Bengal Land Reforms Act as ultra vires Article 300A of the Constitution - HELD THAT:- We, therefore, find substance in the contention of Dr. Mondal that a Division Bench of this Court having declared the provision contained in the West Bengal Land Reforms Act regarding vesting without making any lawful provision for compensation for such vesting in the Act as ultra vires the Constitution of India, the State cannot be permitted to proceed with the said provision of vesting against the petitioners as long adequate provision is not made in the Statute for compensation.
We, respectfully follow the decision of the Division Bench of this Court in the case of Paschim Banga Rajya Bhumijibi Sangha, which is still binding upon us as a valid precedent and consequently, set aside the order passed by the Tribunal on the ground that without making lawful provisions of compensation for vesting in the West Bengal Land Reforms Act, the State cannot go on with the process of vesting against the writ petitioners.
The order impugned thus, is, set aside. The writ application is allowed to the extent indicated above. This order, however, will not stand in the way of the State in continuing with the process of vesting if adequate lawful provision is incorporated in the Act for compensation for the vested land.
Thus, there will be, however, no order as to costs.
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2007 (5) TMI 558 - DELHI HIGH COURT
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... ... ..... s of the action adopted by him. The impugned order is hereby set-aside. rdquo 7. By another order dated 18th November, 2003 in Crl. Appeal No. 1399/2003, the Supreme Court, against a similar order requiring service of a week rsquo s notice before effecting arrest passed by this court set aside the same observing that once a prayer for anticipatory bail made by the respondent had been refused it was not justified to impose a condition like a prior notice before effecting arrest. The condition of one week rsquo s notice was in the circumstances quashed. The aforesaid two decisions thus, clearly disapprove of condition of service of prior notice before arrest of the applicant. 8. The order dated 17th May, 2007 passed by learned Addl. Sessions Judge being no different in content, the same is set aside to the extent the same directs service of 7 days rsquo prior notice before arrest of the respondent in the event of an FIR being registered. The petition is disposed of accordingly.
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2007 (5) TMI 557 - ITAT MUMBAI
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... ... ..... portion of salary expenditure incurred during the year under consideration which in turn has been incurred for the purpose of carrying out the objects of the assessee-company. The assessee is directed to furnish the breakup of salary expenditure incurred during the year under consideration, where services of such employees have been utilized for the purpose of carrying out the objectives of the assessee-company. In case of failure on the part of the assessee to furnish the requisite details, the Assessing Officer is left with no option but to estimate such expenditure which is attributable to earning of dividend income, which in turn can be limited to the extent of percentage of dividend income earned vis-a-vis the total income earned during the year under consideration. Thus the ground of appeal raised by the Revenue is allowed for statistical purpose. In the result, the appeal of the Revenue is allowed for statistical purpose. Order pronounced on the 14th day of May, 2007.
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2007 (5) TMI 556 - ITAT AMRITSAR
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... ... ..... mputed as per provisions of the Act. The learned Commissioner of Income-tax (Appeals) upheld the findings of the Assessing Officer. Like the assessment year 2001-02, the learned authorised representative has not advanced any arguments in support of this ground of appeal. Since we have already upheld the order of the Commissioner of Income-tax (Appeals) for treating the rental income as income from house property, the assessee would not be entitled to deduction of the expenses which were inadmissible against the business income. Here also the findings for the assessment year 2001-02 would be applicable. In this view of the matter, we uphold the order of the Commissioner of Income-tax (Appeals) and reject the ground of appeal of the assessee. In the result, the appeal of the assessee for the assessment year 2001-02 is allowed to the extent indicated above and the appeal for the assessment year 2002-03 is dismissed. This decision was pronounced in the open court on May 18, 2007.
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2007 (5) TMI 555 - ITAT AHMEDABAD
Computation of capital gains - extinguishment of warrants - “Short-term capital loss” - whether there is a loss incurred by the assessee on the transfer of a capital asset - HELD THAT:- In our opinion, there is an extinguishment of right in the warrant. It is not a case of extinguishment of the assets itself. The warrant is a capital asset. It may not have any value subsequent to the extinguishment of the rights available to the assessee for subscription to the equity shares. The hon’ble Supreme Court in the case of CIT v. Mrs. Grace Collis [2001 (2) TMI 9 - SUPREME COURT] has held that the expression “transfer” included the extinguishment of rights in assets independent. We have also gone through the decision of the hon’ble Supreme Court in the case of Kartikeya V Sarabhai [1997 (9) TMI 2 - SUPREME COURT]. In this decision, the hon’ble Supreme Court has held that this is only one of the modes of transfer envisaged by section 2(47). The relinquishment of the assets or extinguishment of any rights in it which may not amount to a sale can also be considered as a transfer.
Therefore, on this issue, we do not agree with the finding of the CIT (Appeals) that there is no transfer in the case of the assessee and accordingly we reverse the finding of the CIT (Appeals) on this issue and hold that in the case of the assessee there is a transfer when the rights of the assessee to subscribe for the shares got extinguished.
In view of the provisions of section 48 there must be full value of consideration out of which the expenditure and the cost of acquisition has to be deducted for computing the capital gains. In the absence of any value being assigned to the consideration received on the transfer of warrants, in our opinion, the capital loss cannot be computed in the case of the assessee. We are therefore of the view that in the case of the assessee the capital loss cannot be computed u/s 45 read with section 48 and therefore the assessee will not be entitled for claiming the deduction under the head “Short-term capital loss” as the computation provisions relating to the short-term capital gain fail.
In the result, the appeal of the assessee is dismissed.
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2007 (5) TMI 554 - ITAT BANGALORE
Deferred revenue expenditure - Expenditure made for use of domestic customer base and transfer of human skills - benefit accrued is of enduring nature - receipt on transfer of employees - Nature Of receipts - ''Capital Or Revenue'' - HELD THAT:- If the Revenue wanted to treat that the consideration paid as per the agreement was for the transfer of the business being undertaken by Tata IBM Ltd. then such receipts should have been held as capital in the hands of the recipient. In the case of Syndicate Bank Ltd. v. Addl. CIT [1985 (3) TMI 48 - KARNATAKA HIGH COURT] has held that the transfer of undertaking is a transfer of capital asset and is liable to capital gain. However, in the case of the recipient, the Revenue has treated the receipts as revenue receipts and included in the income. The matter has travelled up to the Tribunal and the Tribunal has held that the receipts are revenue in nature.
The Revenue cannot blow hot and cold once it has taken the stand that the receipts in the hands of the recipient are revenue in nature then such payments cannot be held as capital in the hands of the payer representing the consideration paid for the transfer of business. In the instant case, the recipient has not been taxed under the head " Capital gain" on the transfer of the business. Hence, the action of the Assessing Officer in holding that the receipts represented the receipts on account of transfer of business cannot be upheld.
It is also not the case of the Revenue that the payments have been made before the commencement of business. In the instant case, the business was being already carried out by Tata IBM. As per the agreement, it is clear that IBM and Tata have agreed to carry out the activities as mentioned in clause 5 of the agreement through the assessee-company. The issue of commencement of business in respect of purchase of an existing undertaking by an assessee in the case of Vidarbha Irrigation Development Corporation v. Joint CIT [2005 (7) TMI 539 - ITAT MUMBAI]. In that case, the corporation was formed for completion of already existing projects or for further entrusted projects. The business was already in existence and, therefore, the commencement of business is not in dispute. Hence, the expenditure under reference in the instant case cannot be termed as an expenditure incurred before the commencement of the business.
Payment which frees an assessee from the liability to make recurring revenue payments is revenue expenditure. This has been held by the apex court in the case of CIT v. Associated Cement Companies Ltd.[1965 (12) TMI 22 - SUPREME COURT]. But such test will fail in case an asset is acquired. If a labour saving machinery is purchased then revenue expenditure is reduced in respect of newly labour bill but the cost of machine cannot be treated as revenue expenditure as it bring into existence of an asset.
So far as payment made for getting the domestic customer data base is concerned, it is clear that the assessee has only got right to use that data base. The company which is provided such data base is not precluded from using such data base. Hence, the expenditure incurred is for the use of the data base and not for the acquisition of such data base. This issue has been considered by this Bench in the case of Wipro GE Medical Systems Ltd.[2002 (7) TMI 220 - ITAT BANGALORE].
Keeping in view the decision of this Bench on this issue, it is held that the ld CIT (A) was not justified in not allowing the loss - In the result, the appeal is partly allowed.
Depreciation in respect of expended for the use of domestic customer data base - HELD THAT:- While deciding the appeal for the assessment year 1998-99, which has been held that expenditure incurred for acquiring the use of data base and for getting the human skill is revenue in nature and, therefore, there is no question of depreciation to be allowed in that year. In respect of expenditure, which has been considered as not allowable for the assessment year 1998-99, it has already been held that depreciation on such sum will not be allowed.
Accordingly, this appeal is disposed of.
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2007 (5) TMI 553 - ITAT JABALPUR
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... ... ..... urt and lastly of any other High Court. Therefore, in view of the abovenoted decision we find that there is no provision for rectification of the order passed under section 254(2) as held by the honourable Orissa High Court noted above and there is no other direct decision, on the point, of the honourable Supreme Court or the jurisdictional High Court or any other High Court, and in view of the jurisdictional High Court decision, help can be taken from such other High Court s decision to hold that there is no provision in the Income-tax Act to rectify an order of rectification passed under section 254(2), as such, same is not permissible under law and we hold accordingly. As such, the application of the assessee, being not maintainable/permissible, is thus rejected. Since application is being held to be not permissible hence it is not being considered on merits. As a result application of the assessee gets rejected. The order pronounced at the time of hearing on May 25, 2007.
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