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2013 (9) TMI 1182 - SUPREME COURT
Power of the Government to withdraw or revoke the appointment of Ld. SPP u/s- 21 of General Clauses Act - Exercise of power appears to be vitiated by malafides in law - HELD THAT:- the Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The principles of governance have to be tested on the touchstone of justice, equity and fair play. A decision may look legitimate but as a matter of fact, if the reasons are not based on values but to achieve popular accolade, the decision cannot be allowed to operate. Therefore, unless it is found that the act done by the authority earlier in existence is either contrary to the statutory provisions or unreasonable, or is against public interest, the State should not change its stand merely because the other political party has come into power. "Political agenda of an individual or a political party should not be subversive of rule of law".
The decision n the case STATE OF T. NADU & ORS VERSUS K SHYAM SUNDER [2011 (8) TMI 1086 - SUPREME COURT] followed.
Competency of State Government to appoint Ld. Special Judge on contractual basis - To Conclude present trail - With consultation of the High Court u/A- 235 of Constitution of India - HELD THAT:- the State Government is competent to appoint the learned Special Judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court u/A 235 of the Constitution. Further, the matter requires to be considered by the State Government with the consultation of the High Court.
Therefore, the matter was referred to the High Court of Karnataka to decide on the administrative side to conclude the trial expeditiously as guaranteed u/A 21 of the Constitution, requires the extension of the services of the learned Special Judge. As the matter was urgent, the High Court of Karnataka is requested to take a decision in this regard as early as possible.
The decision in the case STATE OF UTTAR PRADESH VERSUS SINGHARA SINGH AND OTHERS [1963 (8) TMI 43 - SUPREME COURT] followed.
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2013 (9) TMI 1181 - CENTRAL ADMINISTRATIVE TRIBUNAL, AHMEDABAD
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... ... ..... e is a strong possibility of manipulation and therefore one representative from the promotee juniors shall also be included in the panel. 14 We think that this is a reasonable request. Justice must not only be done but must be also seen to be done. 15 But a word of caution. Our Constitution and democratic policy is welded to the theme of Rule of Law. Institutional Morality compels the government to accept without hesitation adjudicatory decisions. There is no provision for a pick and choose governance. In a fight for seniority and promotion by its employees, the senior levels of Government can only be a silent spectator and not an active participant lest it destroy their fundamentally impartial role. Dedication and Expedition is called for All the OA's being in the same gemre are hereby disposed of with the above directions to be scrupulously observed. No costs. MA Nos.302/2013 and 303/2013 in OA Nos.128/2013 and 129/2013 for production of documents are also disposed of.
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2013 (9) TMI 1180 - ITAT MUMBAI
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... ... ..... based on a concurrent finding of fact, no question of law arises. Thus we do not entertain this appeal. 5) Accordingly, the appeal is dismissed with no order as to costs. 4.1 Even AO for assessment year 2010-11 has assessed the gain arising to the assessee from sale and purchase of shares as short term capital gain and long term capital gain. The short term capital gain assessed by the AO with regard to this activity for assessment year 2010-11 is a sum of ₹ 2,33,19,981/-. Therefore, the facts cannot be said to be different from the year under consideration. Respectfully following the aforementioned order of the Tribunal which has been upheld by the Hon’ble High Court, we see no infirmity in the order passed by Ld. CIT(A)vide which necessary relief has been given to the assessee. We decline to interfere and the appeal filed by the revenue is dismissed. 5. In the result, the appeal filed by the revenue is dismissed. Order pronounced in the open court on 16/09/2013
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2013 (9) TMI 1179 - CESTAT AHMEDABAD
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... ... ..... n the demand of Additional Excise Duty confirmed by the departmental authorities. On perusal of the entire case records, it is seen that the said Order-in-Original, wherein the adjudicating authority has confirmed the demand, imposed penalties and also ordered for recovery of interest, has attained finality in the hands of Tribunal when Order No. A/1354, 1355/WZB/05/C III/SMB, dt.21.09.2005 was passed, upholding the demand of Central Excise duty and setting aside the penalties imposed. On a specific query from the Bench, ld.Counsel submits that they have not filed any application for rectification of mistake. In my view, since the issue has attained finality in the hands of the Tribunal, as regards the liability for interest on the amount of duty confirmed by the adjudicating authority, I find that there is no merit in the appeal filed by the appellant for adjustment of the amount of refund against the interest due. 4. The impugned order is upheld and the appeal is rejected.
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2013 (9) TMI 1178 - ITAT PUNE
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... ... ..... e, therefore, hold that the addition on account of interest on NPA is not justified. We hold that addition in respect of interest on NPA account made by the AO is rightly deleted by the Ld.CIT(A). We accordingly confirm the order of the Ld.CIT(A) and dismiss the ground taken by the Revenue. 7. So far as the cross objection of the assessee is concerned the issue is that the disallowance made u/s.14A. We find an identical issue has come up for the consideration in assessee’s own case for A.Y. 2008-09 in ITA No.1287/PN/2012 order dated 20-09- 2012 and the Tribunal has deleted the addition. 7.1 Following the reasonings given for deleting the said addition in the A.Y. 2008-09, we delete the addition in this year also as facts are identical and allow the ground taken by the assessee in the cross objection. 8. In the result, revenue’s appeal is dismissed and assessee’s cross objection is allowed. Pronounced in the open court on this the 27th day of September 2013.
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2013 (9) TMI 1177 - ITAT PUNE
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... ... ..... ty of unaccounted transactions. We find that the AO himself admits that the assessee has specifically denied. Law is well settled that burden is on the Revenue to establish the identity if any person is to be charged under the Act. The action of the AO examining the different persons having the same name prima-facie establishes that Assessing Officer himself is not sure that the assessee is the same person whose name was found noted in the seized document. Moreover, nothing is on record to show that Shriram H. Soni has stated about the assessee that whatever the notings found were in respect of the assessee. No corroborative material is found. In our opinion, the Ld.CIT(A) has rightly deleted the entire addition as there is no evidence against the assessee. We find no merit in the appeal filed by the Revenue. Accordingly, the same is dismissed. 6. In the result, the appeal filed by the Revenue is dismissed. Pronounced in the open court on this the 30th day of September 2013.
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2013 (9) TMI 1176 - CESTAT BANGALORE
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... ... ..... authority on the ground that there were various judgments of the Tribunal, on reading of which the appellants were entitled to avail the CENVAT credit on MS beams, channels, plates, etc., under the head capital goods as they were using the same for support structures, repairs and maintenance, etc. We find that the first appellate authority has not given any findings on the plea of limitation raised by the appellant before him. In our view, appellant s contention as regards that there cannot be invocation of extended period needs to be reconsidered by the first appellate authority, in correct perspective. Accordingly, without recording any observations on the plea of the assessee-appellant, we set aside the impugned order and remand the matter back to the first appellate authority to reconsider the issue afresh, after following the principles of natural justice. 4. The stay petition and appeal disposed of as indicated hereinabove. (Order dictated and pronounced in open court)
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2013 (9) TMI 1175 - CALCUTTA HIGH COURT
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... ... ..... ods, but the Customs authority including the Tribunal erred gravely in not giving benefit to the appellants under section 125 of the Customs Act. Our attention was drawn to the fact that the benefit was not given because the confiscation made was absolute. No reason for absolute confiscation has been disclosed. Therefore, to that extent, the order under challenge is set aside. The matter is remanded to the Commissioner of Customs (Port) for the purpose of assessing fine in lieu of confiscation under section 125 of the Customs Act on such terms and conditions as he thinks fit and proper. The appeal is thus disposed of.
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2013 (9) TMI 1174 - ITAT JODHPUR
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... ... ..... d. DR has opposed the stand taken by ld. AR and has supported the appellate order. 3.2 After hearing both sides, we have found that this issue stands squarely covered by the decision of Hon’ble Apex Court rendered in the case of CIT Vs. Textlool Co. Ltd. Appeal No. 447 of 2003, wherein it has been held that the payment made by the assessee-company directly to LIC towards Group Gratuity Fund is allowable. Accordingly, by respectfully following the above decision this issue is allowed in favour of the assessee. The additions so made in both the years are deleted. 4. In A.Y. 2009-10 two more grounds relating to charging of surcharge and levy of interest u/s 234C have been raised. Since charging of interest and surcharge are mandatory, these grounds cannot be allowed. 5. In the result the appeal in ITA No. 47/Jodh/2013 for A.Y.2008-09 is allowed and the appeal in ITA No. 48/Jodh/2013 for A.Y. 2009-10 is partly allowed. Order Pronounced in the Court on 20th September, 2013.
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2013 (9) TMI 1173 - ITAT DELHI
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... ... ..... manner the risk adjustment cannot be given. In fact it is a duty of assessee as well as TPO to conduct a proper FAR analysis so that right comparables are selected. Once the comparables are selected and accepted except for working capital adjustment no further risk adjustment is required to be made. In view of this we do not agree with assessee’s contentions so far as risk adjustment is concerned. In view of the above, ground no.1 is partly allowed. 15. As regards depreciation on computer peripherals the case of the assessee is fully covered by the decision in the case of CIT vs. BSES Rajdhani Powers Ltd. reported in ITA NO. 1266/2010 wherein it has been held that computer peripherals are eligible for depreciation 60 therefore, ground no.2 is allowed. Ground no.3 with respect to interest u/s 234B is consequential and does not require any adjudication. In view of the above, the appeal filed by assessee is partly allowed. Order pronounced in Open Court on 27th /09/ 2013
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2013 (9) TMI 1172 - ITAT MUMBAI
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... ... ..... TA No. 688 to 691/Mum/2012. (ii) M/s Wadhwa & Associates Realtors Pvt. Ltd. order dated 3.7.2013, ITA No. 695/Mum/2012 7. After carefully considering the rival submissions and the relevant findings of the learned Commissioner (Appeals), we find that this issue is covered by a series of decisions of the Tribunal, Mumbai Bench. Moreover, we have also decided identical issue against the Revenue following the aforesaid decisions, as relied upon by the learned Counsel in an appeal filed by the Revenue in Trent Limited, ITA no.1730/Mum./2012, vide order of even date. Consistent with the view taken by the Tribunal, we hold that such payment of premium on account of additional FSI cannot be treated as rent as stipulated under section 194-I and, hence, no TDS was required to be deducted. Consequently, interest under section 201(1) / 201(1A) cannot be levied. 8. In the result, Revenue’s appeal is treated as dismissed. Order pronounced in the open Court on 27th September 2013
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2013 (9) TMI 1171 - CESTAT AHMEDABAD
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... ... ..... input services received by the contractors, appellant is eligible since those are not input services used for providing output service by the appellant but they are used for providing output service by the EPC contractors. It is also made clear that these findings would be applicable only in respect of eligibility of Cenvat credit of service tax paid by provider for services provided to EPC contractors and may not be applicable to the services provided by the service providers directly to the assessee, in respect of Engineering Consultancy, Inspection services, ROV/ROW Consultancy services, and paid for by the appellant directly.” 6. The various other errors which rectification is sought, are of in consequential nature and are not apparent on the face of the records, and hence are dismissed as such. 7. Subject to the errors as rectified by us hereinabove, all the applications for rectification of mistake are disposed of. (Pronounced in the Court on 18-9-2013)
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2013 (9) TMI 1170 - CESTAT BANGALORE
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... ... ..... not opted for composition scheme. If that be so, service tax liability, prima facie, does not arise on the assessee. As regards the service tax liability on ‘maintenance and repair service’, we find that substantial amount stands deposited though the appellants are disputing the services under ‘maintenance and repair service’. As substantial amount stands deposited, we find that the said deposit is enough to hear and dispose the appeal as regards issues like ‘Maintenance and Repair Service’; ‘Renting of Immovable Property Service’ and ‘Engineering Consultancy Service’ while in respect of works contract, they have made out prima facie case for-waiver of pre-deposit. Accordingly, the application for waiver of pre-deposit of the amounts involved is allowed as indicated herein above and recovery thereof stayed till disposal of the appeal. Stay application stands disposed of. (Order dictated and pronounced in open Court)
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2013 (9) TMI 1169 - ITAT MUMBAI
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... ... ..... Hon’ble Delhi High Court after considering the provisions of Section 10(10D) and the CBDT Circular and also perusing the decisions i.e. in the case of CIT Vs. B.N.Exports, reported in (2010) 323 ITR 178 (Bom) and various others, held that the amount received on Keyman Insurance Policy is exempt by the Section 10(10D) of the Act. There is no contrary decision available till date. Therefore, we see no reason to interfere in the findings of the learned CIT(A), who has decided the issue following the decision of the Hon’ble Delhi High Court in the case of Rajan Nanda (supra). The Hon’ble Delhi High Court has also taken into consideration the CBDT Circular and came to the conclusion that the amount received on account of Keyman Insurance Policy is exempt by the Section10(10D) of the Act. Accordingly, we confirm the order of the learned CIT(A). 8. Resultantly, appeal of the department is dismissed. Order pronounced in the open court on this 6th day of Sept.2013.
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2013 (9) TMI 1168 - ITAT PUNE
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... ... ..... 137 (Mumbai) (SB). Against the aforesaid, Revenue is in appeal before us. 4. It was a common point between the parties that the issue raised stands covered in terms of the decision of the Special Bench of the Tribunal in the case of Sulzer India Ltd. (supra) and that such decision continues to hold the field and has not been altered by any higher authority. Therefore, having regard to the decision of the Special Bench of the Tribunal in the case of Sulzer India Ltd. (supra) it has to be deemed that deferred sales tax liability being the difference between the payment at net present value against the future liability of the assessee arising as a result of the scheme of Maharashtra Government was a ‘Capital Receipt’ and could not be turned as a revenue receipt chargeable to tax. As a result, order the of the CIT(A) is liable to be affirmed. We hold so. 5. In the result, appeal of the Revenue is dismissed. Order pronounced in the open Court on 16th September, 2013.
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2013 (9) TMI 1167 - SC ORDER
Condonation of delay application - HELD THAT:- Delay condoned.The Special Leave Petition is dismissed.
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2013 (9) TMI 1166 - CESTAT NEW DELHI
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... ... ..... he recovery of Cenvat credit impracticable. But unfortunately no penalty was imposed for breach of law. Where recovery of duty element no more arose by above conduct and show cause notice was issued belatedly, the interest became irrecoverable in absence of any mala fide of the appellant. 5. Revenue relies on the decision of Hon’ble Supreme Court in the case of UOI v. Ind-Swift Laboratories Ltd. - 2011 (265) E.L.T. 3 (S.C.) 2012 (25) S.T.R. 184 (S.C.) to press its case that interest is leviable. But appellant denies the same on the basis of judgment of the Apex Court in the case of CCE, Mumbai-I v. Bombay Dyeing & Mfg. Co. Ltd. - 2007 (215) E.L.T. 3 (S.C.) and subsequent legislative mandate by Finance Act, 2013. 6. Taking into consideration the operating mechanism prescribed by Rule 14 Cenvat Credit Rules, 2004 which was not subject matter before by Apex Court in the decision cited by Revenue, appeal is allowed. (Dictated and pronounced in the open Court)
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2013 (9) TMI 1165 - CESTAT MUMBAI
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... ... ..... e. 6. We find that the benefit of Notification No. 45/2010-S.T. is in respect of taxable services relating to transmission and distribution of electricity provided by a person to any other person. In the present case, admitted facts are that the applicant had not undertaken any activity of transmission and distribution of electricity. The applicant is undertaking the activity of construction, erection and testing and commissioning of high tension/low tension lines distribution transformers. Therefore, we find that the applicant is not entitled for the benefit of the Notification. Keeping in view the facts and circumstances of the case and the admitted liability, the applicant is directed to deposit an amount equal to 50 of the demand confirmed, within eight weeks from today. On deposit of the same, pre-deposit of the remaining dues is waived and recovery of the same is stayed during the pendency of the appeal. Compliance to be reported on 26-11-2013. (Dictated in Court)
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2013 (9) TMI 1164 - CESTAT NEW DELHI
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... ... ..... e name of Sahibabad unit. On going through the invoice available at page 35, it is seen that the invoices issued by Cross Link Cargo Management Pvt. Ltd. in the name of Alps India, Sahibabad and the shipping bill No. 5371002, dated 12-9-2011 is mentioned on it. I also note that at page 36 the shipping bill is attached in the appeal folder with the same No. 5371002, dated 12-9-2011. In the shipping bill the exporter details are mentioned in the name of Alps Industry Ltd., Haridwar unit. Therefore, there is no doubt about the fact the goods were exported by Haridwar unit and invoice at page 35 though mentions the name of Sahibabad unit, services mentioned in the invoices were utilised by Haridwar unit. In view of this fact, I find that the appellant is eligible for refund of the service tax paid in respect of services and accordingly the order passed by the Commissioner (Appeals) is set aside and appeal filed by the appellant is allowed. (Dictated and pronounced in open Court)
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2013 (9) TMI 1163 - CESTAT BANGALORE
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... ... ..... the appellant was not the activity of videotape production because videotape production agency means any professional photography and commercially engaged agency in such activity. His application of mind is vividly clear when he has depicted the statutory definition of videotape production and compared that activity with the activity of the respondent. He reached to conclusion in para-11 of his order very clearly noticing that the appellant was compiler of news, events and recording thereof as well as editing that transmitted it for telecasting. This can be appreciated from reading of para 11 of the order-in-appeal. He has also not failed to examine the MOU between the respondents and its clients to ascertain and settle the facts well. 5. Looking to the nature of activity carried out by the respondents it is not conceivable that the respondent is a videotape production agency. Accordingly Revenue’s appeal is dismissed. (Order dictated and pronounced in open Court)
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