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Case Laws
Showing 201 to 220 of 731 Records
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2009 (11) TMI 830 - ALLAHABAD HIGH COURT
Validity and legality of the circular dated February 17, 2004 issued by the Commissioner, Trade Tax, U.P. wherein it has been provided that sale and purchase of eatable goods by the club to its members is taxable as the same is included within the extended definition of "sale and purchase" after 46th Amendment of the Constitution in article 366(29A) of the Constitution of India, has been challenged
Held that:- We see no illegality in the impugned circular of the Commissioner, and the submission of the petitioner to the contrary is misconceived.
The petitioner was assessed ex parte in the said assessment year 1994-95 on the basis of the certain information received. The appellate authority examined the said information and was satisfied that the said information was inadequate to hold the petitioner a dealer. The information was that some demonstration of cold drink by Pepsi Company was made and the said company after the demonstration had removed its machines and goods. On these facts, it was found that the petitioner-company is not a dealer and no cold drink was sold. The amended definition of "sale" as contained in section 2(h) was not up for consideration before the appellate court, nor was considered. The appellate authority proceeded to address the controversy treating that the assessee was a society nor indulged in sale and purchase transaction and is running on no-profit and no-loss basis. On these facts, it cannot be said that initiation of reassessment proceeding is based on change of opinion. Appeal dismissed.
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2009 (11) TMI 829 - ALLAHABAD HIGH COURT
Whether impugned assessment orders are barred by time?
Held that:- The petitioner is guilty of not disclosing the true and correct facts and has tried to mislead the court. The conduct of the petitioner in not extending his cooperation to the assessing authority to reframe the assessment orders by filing reply to show-cause notice and by not participating in the proceedings and seeking adjournments and concealing these facts in the writ petition disentitles him to get any relief. It would be travesty of justice, if such a person, who was instrumental in getting the case timebarred, is granted relief by a writ court.
Thus the petitioner is not entitled to get any relief under article 226 of the Constitution of India. W.P. dismissed.
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2009 (11) TMI 828 - ALLAHABAD HIGH COURT
Proceedings initiated against the petitioner under section 21(2) of the U.P. Trade Tax Act, 1948 relating to the assessment years 1997-98 (both U.P. and Central) and 1998-99 (both U.P. and Central) asked to be quashed
Held that:- In the case on hand, the law that chewing gum and bubble gum are taxable as unclassified items and, therefore, liable to be taxed at the rate of 10 per cent has been the law throughout with effect from the date of enforcement of the relevant notification. It shall be deemed to be from the date of notification and as such, it is but a clear case of escapement of turnover as these items have been taxed at a lower rate. Learned senior counsel could not dispute that even today a notice for reassessment subject to period of limitation may be issued to tax these items accordingly
Applying the stated principle to the facts of the present case together with the judgment of the apex court in the case of Associated Distributors [2008 (5) TMI 394 - SUPREME COURT OF INDIA] , it will be travesty of justice if by way of judicial engineering, the relief is granted to the petitioner by permitting it to pay the tax at a lower rate. W.P. dismissed.
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2009 (11) TMI 827 - GUJARAT HIGH COURT
Vires of section 6A - form F - deemed inter-State sale - claim of petitioner is that the assessee should not be held liable for want of form F, if on the basis of other evidence in this regard, he is in a position to prove that the transaction in question is not inter-State sale, but it is only a transaction of consignment - Held that: - this court is of the view that it is open for the petitioner to agitate this issue before the pending proceedings and establish its claim in absence of form F while leading other evidence to the effect that the transaction in question is not an inter-State sale, but it is merely a consignment - petition allowed by way of remand.
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2009 (11) TMI 826 - MADRAS HIGH COURT
Whether the clarification by the first respondent is not a statutory clarification?
Held that:- Agreeing with the view expressed by this court holding that the clarification issued is without jurisdiction. Given the admitted fact that there is no legal authority on the respondents to issue the clarification and there being no statutory provisions to that effect, it being non est in the eye of law, no justification in the prayer seeking the quashing of the clarification as ultra vires the provisions of the Act.
The clarification, whether it is in favour of the Department or the assessee can have no effect at all to have any binding effect on the assessing authority in the assessment proceedings. Consequently, the Assessing Authority has to assess the claim of the assessee independently on the basis of the materials produced before him. The petition seeking clarification and the clarification given by the first respondent have no legal sanction, hence, are of little significance and consequence as far as the assessment proceedings are concerned. Thus there exists no ground to grant the prayer in the writ petition by way of quashing the same and to hold that the item in question had to be assessed under a particular head.
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2009 (11) TMI 825 - PATNA HIGH COURT
Whether or not the petitioner has really exported petroleum oil and lubricant products to Nepal?
Whether or not such a transaction is sale in the course of export to a foreign country?
Held that:- On a perusal of the substitute bills of export after the same are submitted by IOC at the inception of the procedure, have to pass through customs authorities, excise authorities, etc., of the Indian Government, as well as of the Nepalese Government. It is, therefore, a possible situation that IOC may not have the occasion to retain a copy of the same or have photo copies done, because once the procedure commences, the documents pass out of the physical possession and control of IOC and throughout remain with the Governmental authorities of India and Nepal. In that view of the matter, it does not appear to us to be just and reasonable for the learned authorities under the Bihar Act to insist on production of substitute bills of export. In that view of the matter, we feel that the learned authorities under the Bihar Act have misdirected themselves by putting needless and clearly avoidable emphasis on the substitute bills of export. The nature of the transaction, namely, it is sale in course of export, is not in doubt. We also notice from a perusal of the three orders in question that the learned authorities have not applied themselves to the merits of the materials produced by IOC, and have rejected the petitioner's claim for exemption outright on the ground of non-production of the bills of export. We are, therefore, of the view that the impugned order is not sustainable in law.
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2009 (11) TMI 824 - KERALA HIGH COURT
Rate of tax applicable on Vicks, Vicks Vaporub and tablets - Held that:- Rules of Interpretation, more in the nature of clarification of the product referred to in rule 23 or the use are totally different as far as products in question are concerned. We do not find that rule 23 of the aforesaid Rules of Interpretation appended to the statute will in any way tarnish these items against classification under entry 36 of the Third Schedule. More so, none of the reasons as stated in the annexure A order will show that the products in question are classifiable otherwise than under entry 36 of the Third Schedule to the Kerala Value Added Tax Act. Accordingly, the order in annexure A of the Commissioner of Commercial Taxes, Thiruvananthapuram in so far as the goods in question are concerned is set aside and we declare that the products, namely, Vicks, Vicks Vaporub and tablets are classifiable under entry 36 of the Third Schedule, attracting only four per cent rate of tax.
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2009 (11) TMI 823 - KERALA HIGH COURT
Whether royalty income received by the assessee from the franchisees for the use of the trade mark 'SKEI' on their products (icecreams) is exigible to tax under the Kerala General Sales Tax Act, 1963 in the hands of the assessee?
Whether under the circumstances of this case, it can be said there exists the concept of 'goods', 'turnover' and 'taxable turnover' with reference to the receipt of royalty by the assessee from their franchisees?
Held that:- In view of the observations made by this court in the case of Mechanical Assembly Systems (India) Pvt. Ltd. v. State of Kerala [2005 (12) TMI 536 - KERALA HIGH COURT] which was followed by us in the case of Jojo Frozen Foods (P) Ltd. v. State of Kerala (2008 (6) TMI 564 - KERALA HIGH COURT), we are of the opinion that the questions of law framed by the assessee require to be answered against the assessee and in favour of the Revenue. Accordingly, the revision petition is rejected.
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2009 (11) TMI 822 - ALLAHABAD HIGH COURT
... ...
... ... ..... been made recoverable at this stage. In support of the submission, he cited a decision of the case i.e. Indian Oil Ltd. v. Trade Tax Tribunal, 1999 UPTC 1030. Considering the facts and circumstances of the case, I hereby stay the operation of the recovery proceeding initiated through the demand notice dated 28.07.2009 issued by the opposite party No.3 till further order of this court. Mr. Pradeep Agrawal, learned counsel for the petitioner submits that pursuant to the recovery citation the petitioner 39 s account has been attached, which permitted for operation by the petitioner, till further order of this court. Since I have stayed the recovery proceeding, I hereby provide that the petitioner shall be permitted to operate the account. Since the appeal is still pending considering for adjudication before the appellate authority, no further action is required by this Court in the matter. With the aforesaid observation/ direction, I hereby dispose of the writ petition finally.
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2009 (11) TMI 821 - GAUHATI HIGH COURT
Imposition of entry tax on the imported cement for use in the manufacturing process of asbestos sheets - whether discriminatory and also violative of not only the constitutional guarantees, but also of the scheme of the AET Act, 2001 as stated by petitioner?
Held that:- Levy of entry tax under the AET Act, 2001, on import of cement into a local area for the purpose of its consumption in the manufacturing process of asbestos sheets cannot be interfered with on grounds of discrimination, arbitrariness or violation of any constitutional guarantees. This apart, the levy of entry tax on cement has been imposed with prior sanction of the President in terms of the proviso to article 304(b) of the Constitution of India. Viewed thus, it is abundantly clear that the challenge to the levy of entry tax on cement by the present set of writ petitioners has no substance and cannot be sustained. W.P. dismissed.
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2009 (11) TMI 820 - SUPREME COURT
The last date of submitting the application along with medical certificate was 14th of April, 2003, which was a gazetted holiday on account of Ambedkar Jayanti. The application of the applicant was incomplete only because it did not contain the medical certificate. The explanation of the appellant is that in view of the 14th April being a holiday and the previous days were also holidays, he could not obtain the medical certificate and he obtained it on the very next day i.e. 15th April and submitted it on that day itself. - Held that:- The application filed by the appellant on the post of Constable Amorer Course is valid
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2009 (11) TMI 819 - ITAT AHMEDABAD
Weighted deduction u/s 35(2AB) - incurring expenditure on scientific research & development in relation to drugs and pharmaceuticals - exclusion of professional fee and gardening expenses - HELD THAT:- We find that the assessee has included a sum of Rs.51.26 lakhs as eligible expenditure being Revenue expenditure relating to building and another sum of Rs.133.92 lakhs being revenue expenditure other than building, which was considered as revenue by the assessing officer himself. These items clearly are within the purview of allowable u/s 35(2AB) of the Act as weighted deduction. The security expenses are also directly related to in-house research as proper security is required to avoid leakage and only in-house staff will have assessed to building. Accordingly, this expenditure are for preserving the research which is completed and its clinical trial is pending.
As regards to the environmental issue, the assessee-company has set up an affluent plant and as is widely accepted the vegetation, i.e. trees have contained the pollution. This expenditure of gardening and plantation have been done for the perseverance of environment and this is directly related to R & D facilities.
As regards to salary paid to Dr. C.Dutt amounting to Rs.58.54 lakhs, he is in-charge of R & D Centre at Bhatt. He is the person through whom all co-ordination of technical scientists and other technical persons are carried out. The entire reporting of the research activity to the management has been taken to the Board of Directors through him only and for this the salary is paid.
Accordingly, the assessee has rightly paid the entire expenditure of Rs.133.92 lakhs and building repairs Rs.37.55 lakhas on which weighted deduction u/s.35(2AB) of the Act is allowable.
Thus, we allow the claim of the assessee and this issue of the Revenue's appeal is dismissed and that of the assessee's CO is allowed.
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2009 (11) TMI 818 - MADRAS HIGH COURT
Disallowance of turnover in a sum of ₹ 3,57,41,932.63 as the consignment sale which claim was rejected by the assessing officer - whether treating the transaction as inter-State sale falling under section 3(a) of the Central Sales Tax Act, 1956 is correct or not?
Held that:- On a consideration of the position of law, we are of the opinion that the issues raised by the Revenue in the present writ petition being questions of fact which were thoroughly considered by the lower authorities they do not warrant any interference. W.P. dismissed.
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2009 (11) TMI 817 - ITAT KOLKATA
... ...
... ... ..... partly allowed. 11. On last ground the assessee has challenged the addition of Rs. 10,000 out of inspection expenses. 11.1 The AO noted the expenses are incurred for visit of different tea gardens. The expenses have been incurred by the employees, which are through self-made vouchers. The learned CIT(A) confirmed the addition. 11.2 On consideration of rival submissions, we are of the view such addition is not justified in the matter. The AO himself noted that such expenses are claimed as expenses for mandatory visit of different tea gardens. There could not be comparison of the expenditure of every month. The vouchers were produced before the AO duly signed by the employees. But it is a fact that expenditures were incurred for business purpose. Therefore, 10 per cent disallowance out of such expenditure is not justified. We accordingly set aside the orders of the authorities below and delete the entire addition. 12. In the result, the appeal of the assessee is partly allowed
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2009 (11) TMI 816 - CESTAT MUMBAI
... ...
... ... ..... had issued the invoices at lower rate to the distributors and the distributors issued the invoices at the rate contract, which clearly shows the mala fide intention of the respondent and with this mala fide intention the respondent cannot escape from the levy of penalty under Section 11AC. Further, interest is payable whatsoever reason may be. 7. With these observations, I do not find any merit in the impugned order, the same is set aside and the appeal is allowed holding that the respondent is liable to pay the interest under Section 11AB and the penalty equal to the amount of duty involved. Further, I am of the opinion that the respondent has already paid the duty demand before issuance of the show-cause notice and in that effect penalty under Section 11AC shall be restricted to 25 of the duty, if the respondents pay the penalty and interest within 30 days of the communication of this order. Failing which, the respondents are liable to pay 100 penalty. (Pronounced in Court)
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2009 (11) TMI 815 - CESTAT AHMEDABAD
... ...
... ... ..... uires the Tribunal not to be influenced by the Tribunal order dated 28-5-2004 while deciding the other issues and the order of the High Court cannot mean that the Tribunal has to reconsider the demand, which was set aside earlier. 4. We have considered the submissions made by both sides. The Hon rsquo ble High Court has observed and has taken note of the fact that the appeal filed by the appellants is against the order passed by the Commissioner (Appeals) after the matter was remanded for his reconsideration. Therefore, what they have directed that while considering that appeal, the Tribunal may pass appropriate order untrammeled by the findings recorded earlier, setting aside the demand and remanding some issue to the Commissioner (Appeals). The Dictionary meaning of the untrammeled is ldquo without being hindered rdquo . Therefore, we find no merit in the miscellaneous application filed by the Revenue and accordingly, reject the same. (Dictated and pronounced in open Court)
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2009 (11) TMI 814 - CESTAT NEW DELHI
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... ... ..... e any person takes Cenvat credit on inputs or capital goods wrongly or in contravention of any provisions of these Rules. In this case at a time of taking the credit on the basis of registered dealer rsquo s invoices, there was no irregularity as the credit was taken only of the duty mentioned in invoices. The invoices did not mention that the goods had been purchased by the registered dealer from a 100 EOU or that the registered dealer on the basis of the invoices of 100 EOU, had taken full credit. As soon as the credit available to the registered dealer on the basis of 100 EOU was reduced, the appellant also subsequently reversed the excess credit along with interest. In view of these circumstances, I am of the view that the imposition of penalty under Rule 13(1) was not called for on the appellant. The penalty on the appellant, therefore, is set aside. The impugned order stands modified as above and the appeal stands disposed of as above. (Order dictated in the open Court)
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2009 (11) TMI 813 - CESTAT MUMBAI
... ...
... ... ..... hat the duty burden was passed on to M/s. Century Enka Ltd. The case law cited by the learned SDR does not permit such a course of action. The uniformity of price would not by itself constitute a ground for holding that the incidence of duty had not been passed on to the customers. Other evidentiary materials are also required to hold that the duty burden had not been passed on. The Balance Sheets produced by the party pertained to a period subsequent to the final settlement of the classification dispute. Curiously, any Balance Sheet for the prior period was not produced by the party in order to show that the amount covered by the refund claim was being reflected as ldquo dues from the Customs rdquo in their accounts throughout. Thus, in my view, the party did not succeed in discharging their burden of proof under Section 27 read with Section 28D of the Customs Act. 5. In the result, the impugned order is set aside and the appeal is allowed. (Dictated and pronounced in Court)
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2009 (11) TMI 812 - CESTAT MUMBAI
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... ... ..... icate required under section 6 of the Act or (d) contravenes any of the provisions of these rules or the notifications issued under these rules with intent to evade payment of duty. rdquo 3. The present show-cause notice did not allege any of the above has grounds against the noticee, nor has the learned SDR argued to the contra. In this scenario, any penalty under Rule 25 could not have been imposed on the appellant. Section 11AB is on the same footing as Section 11AC in so far as the grounds are concerned. The show-cause notice did not state any ground for invoking Section 11AB either, though it sought to recover interest from the noticee under this provision. Therefore, the action of the original authority, upheld by the appellate authority, to demand interest on duty under Section 11AB is not sustainable in law. 4. In the result, the demand of duty is sustained but without interest. The penalty is set aside. The appeal is partly allowed. (Dictated and pronounced in Court)
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2009 (11) TMI 811 - CESTAT MUMBAI
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... ... ..... s or, in the language used by this Tribunal in Mohanlal Gupta rsquo s case staring at the Tribunal. 4. In the result, the final order turns out to be patently erroneous and the same, in the circumstances of this case, requires to be recalled. The impugned order was passed in October, 2002, when the crucial amendment to Rule 57CC was not there. The lower appellate authority, at that time, was right in taking the decision against recovery of the amount of 8 of the price of the exempted goods from the assessee for want of machinery provision. The same was the situation when the appeals were filed by the department. However, eventually, the law came to be amended to the advantage of the appellant. In this scenario, I set aside the impugned order and direct the learned Commissioner (Appeals) to take fresh decision on the issue in accordance with law after giving the assessee a reasonable opportunity of being heard. 5. The appeals stand allowed by way of remand. (Dictated in Court)
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