TMI Tax Updates - e-Newsletter
January 29, 2014
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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Income Tax:
TDS - once recipient has paid the taxes on the receipts, the payer cannot be held to be the assessee in default - Interest is applicable for the period of the date on which tax was required to be deducted till the date when tax was eventually paid. - AT
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Income Tax:
Unexplained investment - No addition can be made on the basis of the report of the DVO without the books of account being rejected, wherein expenditure relating to the construction is recorded - AT
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Income Tax:
The assessee-society is formed under the State Act for providing services under one roof to the public pertaining to all the Government Departments and not for the purpose of administrating any charitable or public religious trust - exemption not allowed - AT
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Income Tax:
Disallowance made u/s 144 and 184(v) of the Act - Salary paid to partners not allowable - AT
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Income Tax:
When the Tribunal has recorded a finding that the expenses relating to obtaining fixed deposits are closely linked with the business requirement of the assessee, such expenses are allowable expenses - AT
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Income Tax:
TDS on salary - Liability to deduct TDS on medical allowance The liability of the person deducting tax at source cannot be greater than the liability of the person on whose behalf tax at source is deducted - AT
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Income Tax:
Once the objections were withdrawn and the assessee opted to proceed to file the appeal before the CIT(A) which was allowed by the DRP then they cannot be any directions u/s 144C(5) - AT
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Customs:
Denial of refund claim - Mistake in valuation of goods - if appellant is able to prove by producing proper documents that there was a mistake at the time of initial assessment and other conditions of section 27 are satisfied, the appellant will be eligible for refund - AT
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Corporate Law:
The scheme of investigation by a police officer, in terms of the provisions contained in the Code of Criminal Procedure and investigation by the Director General in terms of the Competition Act, are altogether different. - HC
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Central Excise:
Waiver of pre deposit - For a hardship to be 'undue' it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it - HC
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Central Excise:
Assessee was entitled to claim CENVAT credit in respect of the cess paid as additional duty (CVD) on raw sugar imported under the Sugar Cess Act of 1982 read with Section 3 of the Customs Tariff Act, 1975 - HC
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Central Excise:
The statutory Rules 18 and 19 of the Rules of 2002, which have been framed, make it clear that that exemption of duty or rebate is not available on both i.e. inputs as well as finished goods - HC
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VAT:
Levy of entry tax on the sale of sugar manufactured in the petitioner's sugar mill through its selling agents - authorities are still required to decide the petitioner's objections that the situs of sale is at factory gate and not in any other local area - HC
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VAT:
Initiation of revisional proceedings - GVAT - Tribunal has materially erred in considering the legality and validity of the initiation of revisional proceedings, taking the original assessment order under suo motu revision - HC
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2014 (1) TMI 1446
Applicability of Section 194C of the Act - Violation of provisions of section 194J of the Act Requirement of TDS Payment made for professional services Held that:- The CIT(A) deleted the addition made by the A.O. and held that there was no requirement of making deduction at source u/s 194C of the Act - The decision in KUMS, Sikar vs. Income Tax Officer [2014 (1) TMI 935 - ITAT JODHPUR] and CIT vs. KUMS, Gajsinghpur & Ors. [2009 (1) TMI 781 - RAJASTHAN HIGH COURT] followed the order of the CIT(A) upheld - Decided against Revenue.
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2014 (1) TMI 1445
Admission of additional evidence Charging of interest on loan converted to equity shares Held that:- The assessee has now provided evidence that they have been allotted shares for the amount advanced to its American Subsidiary - This alters the entire colour of transaction - the additional evidence admitted in the present appeal under the provisions of Rule 29 of the Appellate Tribunal Rules, 1963 Following Abhay Kumar Shroff. Versus Income-Tax Officer [1997 (6) TMI 75 - ITAT PATNA] - The assessee as a matter of right could not file or filed them before the Tribunal as a matter of course - if the documents sought to be admitted even at the second appellate stage are of a nature and quantitatively such that they render assistance to the Tribunal in passing orders or are required to be admitted for any 'other substantial cause', it would rather be the duty of the Tribunal to admit them - if the receipt or admission of additional evidence is vital and essential for the purpose of consideration of the subject matter of appeal and to arrive at a final and ultimate decision, the Tribunal is amply empowered to admit additional evidence under Rule 29 - The TPO had no occasion to consider the new fact which goes to the root of the matter the matter remitted back to the AO for fresh adjudication. Exemption u/s 10A of the Act Adjustment on exempted income allowed Held that:- The assessee company does not provide any technical services either in India or abroad and the company does not undertake any offshore development of software and hence no part of the expenses can be attributed towards providing technical services outside India - In the absence of any finding given by the Assessing Officer, contrary to the above contention of the assessee, so as to suggest that foreign travel expenditure has been incurred for providing technical services outside India - the claim of the assessee accepted and the Assessing Officer is directed to exclude the foreign travel expenditure while computing the exemption under section 10B of the Act Decided in favour of Assessee.
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2014 (1) TMI 1444
Taxability of amount waived by the sales tax department Held that:- The deferred sales tax liability being the difference between the payment of net present value against the future liability credited by the assessee under the capital reserve account in its books of account was a capital receipt and could not be termed as remission/cessation of liability and, consequently, no benefit would arise to the assessee in terms of section 41(1)(a) - The decision in DY. COMMISSIONER OF INCOME TAX Versus M/s SULZER INDIA LTD [2012 (8) TMI 203 - ITAT MUMBAI] followed. Disallowance on account of delay in remittance u/s 2(24)(x) r.w section 36(1)(va) of the Act - Employees contribution to PF Held that:- The payments have been made within the grace period of five days, which is permissible under the Provident Fund Act - The counsel drew out attention to the chart, which is part of Form 3CD - the Assessing Officer himself had admitted that the assessee had deposited the employees contribution to provident fund account within the grace period - As the amount has been deposited within the permissible grace period there was no reason for the disallowance - the Assessing Officer directed to allow the claim of the assessee Decided in favour of Assessee.
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2014 (1) TMI 1443
Restriction of exemption u/s 54EC of the Act Amount invested in long term bonds Held that:- The decision in Smt. Sriram Indubal v. ITO [2014 (1) TMI 482 - ITAT CHENNAI ] followed - If the assessee is able to keep the six months' limit from the date of transfer of capital asset, but, still able to place investment of Rs. 50 lakhs each in two different financial years, it cannot say that the restrictive proviso will limit the claim to Rs. 50 lakhs only - assessee here had placed Rs. 50 lakhs in two different financial years but within six months period from the date of transfer of capital asset, assessee was definitely eligible to claim exemption upto Rs. 1 Crore - Claim of the assessee for exemption upto Rs. 1 Crore has to be allowed in accordance with Section 54EC of the Act - No material has been brought on record to show that the decision of the Tribunal is either modified or reversed by any higher Court Decided in favour of Assessee.
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2014 (1) TMI 1442
Non-deduction of TDS u/s 193 of the Act - Default u/s 201 of the Act Interest u/s 201(1A) of the Act Held that:- The assessee Corporation could not calculate the actual interest, it could not deduct TDS as the amount of tax was itself undetermined - These arguments are not substantiated with any documentary evidence nor we find any observations of the lower authorities in this regard. However, the assessee has filed the bunch of papers relating to copy of Form No. 15A and copy of one time settlement offers along with the settled accounts. Relying upon ICICI Bank Limited vs. Dy. CIT [2014 (1) TMI 706 - ITAT LUCKNOW] - Recovery provisions under section 201(1) of the Act can be invoked only when loss to revenue is established, and that can only be established when it is demonstrated that the recipient of income has not paid due taxes - In the absence of the statutory powers to requisition any information from the recipient of income, the assessee is indeed not always able to obtain the same - Once assessee furnishes the requisite basic information, the Assessing Officer can very well ascertain the related facts about payment of taxes on income of the recipient directly from the recipients of income - once recipient has paid the taxes on the receipts, the payer cannot be held to be the assessee in default and so far the levy of interest u/s 201(1A) is concerned, the interest is compensatory in nature and it is applicable for the period of the date on which tax was required to be deducted till the date when tax was eventually paid. Levy of interest under section 201(1A) is a compensatory interest in nature and it seeks to compensate the revenue for delay in realization of taxes The judgement in Bennett Coleman & Co Ltd Vs 1TO [1984 (11) TMI 58 - BOMBAY High Court] followed thus, levy of interest under section 201(1A) is applicable whether or not the assessee was at fault - it is only compensatory in nature it is applicable for the period of the date on which tax was required to be deducted till the date when tax was eventually paid - unless and until it is established that the recipients have not paid any tax on the receipts on which they are liable to pay the tax, the assessee cannot be held to be in default - So far as the chargeability of interest is concerned, it is to be charged as per the guidelines laid down in the orders of the Tribunal i.e. from the date on which the tax was required to be deducted till the date of payment thus, the matter is to be remanded to adjudicate the issue afresh Decided in favour of Assessee.
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2014 (1) TMI 1441
Activity of share trading - Income from business or income from capital gains - Held that:- Whether the assessee has earned capital gain or business profits on the shares sold by him depend on the facts and circumstances of each case - The intention of the assessee while purchasing the shares, as to whether the same was acquired for holding as investment or for doing business shall be considered - The treatment given by the assessee in its books of account is also one of the decisive factors to find out whether the shares were held as investment or stock in trade - If the shares are bought with the intention of earning capital gains thereon and also dividend income by keeping the same as investment, the gain arising there from is required to be treated as capital gains - If the shares are purchased with the intention to earn profit thereon and the same is treated as stock in trade in the books of account, the profit arising out of sale of such shares are liable to be treated as business income - The assessee made investment in shares with intention to earn dividend income on appreciation of price of shares - The assessee has been investing in shares since last 5-6 years and have been treating them as investment in its books of accounts - Following the Rule of consistency the income from shares shall be treated as capital gains and not business income - Decision in Commissioner of Income-Tax Versus NSS. Investments P. Ltd. [2005 (4) TMI 45 - MADRAS High Court] followed - Decided against Revenue.
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2014 (1) TMI 1440
Rental income - Business income or income from other sources - Held that:- The assessee has developed and prepared the premises as a fitness centre/gymnasium by installing the all requisite equipments, machines and other facilities - The primary purpose and intention of the assessee to lease out the assets comprising the premises as well as the equipments is to earn the income by exploiting the asset being earning apparatus - It is not a simple case of earning the rental income from letting out the premises - The Revenue has accepted the income from lease out the premises as business income for the assessment year 2006-07 to 2010-11 except the assessment year under consideration - When there is no change in the facts and circumstances then the principle of consistency has to be followed - As per the rule of consistency when the Revenue has accepted the claim of the assessee in all other years then treating the rental income in respect of the fitness centre is not justified - Decided in favour of assessee. Disallowance of municipal taxes - Held that:- If the amount has been paid on or before the due date of filing the return of income u/s 139, then the same has to be allowed u/s 43B - Decided in favour of assessee. Interest income - Held that:- The substantial income of the assessee is from the activity of advancing the loan and in the form of interest - This income has been offered by the assessee as business income which has been accepted by the Revenue since 2003-04 to 2011- 12 except the assessment year 2007-08 - When the Revenue has consistently accepted the interest income as business income of the assessee then in the absence of any change in the facts and circumstances a different view is not permissible for the assessment year under consideration - Decided in favour of assessee.
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2014 (1) TMI 1439
Failure to pay tax for pursuing appeal before CIT(A) - Default u/s 249(4)(a) - Held that:- Decision in Commissioner of Income-tax-III Versus K. Satish Kumar Singh [2012 (4) TMI 213 - KARNATAKA HIGH COURT] followed - After the dismissal of the appeal by the CIT(A) on account of a default under Section 249(4)(a) of the Act, if the assessee pays the admitted tax, the CIT(A) ought to recall the earlier order dismissing the appeal in-limine and to consider the appeal on merits - The issue has been restored for fresh adjudication by CIT(A) with directions to consider the plea of the assessee of having paid the tax due on the returned income and upon his being satisfied that the requirement of Section 249(4)(a) of the Act has been complied with.
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2014 (1) TMI 1438
Unexplained investment - Held that:- The only basis brought out by the Assessing Officer to make the impugned addition under Section 69B of the Act is the report of the DVO estimating the value of construction at higher figure - The report of the DVO is an estimate but not an evidence to prove any undisclosed investment in construction by the assessee - No infirmity or discrepancy has been established by the Assessing Officer in the account books maintained by the assessee - Following Sargam Cinema vs. CIT [2009 (10) TMI 569 - Supreme Court of India] - No addition can be made on the basis of the report of the DVO without the books of account being rejected, wherein expenditure relating to the construction is recorded and such books of account have not been rejected by the Assessing Officer under Section 145 of the Act - Decided in favour of assessee.
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2014 (1) TMI 1437
Exemption of income of society u/s 12(23BBA) of the Act Nature was not of charitable or public religious trust Held that:- The decision in Sukhmani Society for Citizen Services Vs. Commissioner of Income Tax-I, Jalandhar [2014 (1) TMI 70 - ITAT AMRITSAR] followed the assessee is claiming the exemption of income under Section 10(23BBA) of the Act - the society is formed for administrating integrated services under one roof to the public being provided by various departments of Punjab Government registered as per law for the time being in force and some of these departments such as Punjab Urban Development Authority/Bathinda Development Authority/Improvement Trust are charitable institutions registered for charitable purpose thus, income of the society is exempt under Section 10(23BBA) of the Ac - the assessee-society is formed under the State Act for providing services under one roof to the public pertaining to all the Government Departments and not for the purpose of administrating any charitable or public religious trust - the assessee-society is not performing charitable work for the society or general public Decided against Assessee. Denial of exemption u/s 11,12 and 10(23C)(iv) of the Act Non-filing of application within prescribed time Held that:- The assessee has failed to fulfill the necessary requirement for claiming exemption under Section 10(23C)(iv) or 12AA of the Act - The assessee has also filed an application for condonation of delay to the Chairman of Central Board of Direct Taxes but no decision has been taken till the pendency of appeal thus, the First Appellate Authority has rightly denied the exemption to the assessee claimed under Section 11, 12 or 10(23C)(iv) of the Act Decided against Assessee.
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2014 (1) TMI 1436
Disallowance made on motor car expenses - Depreciation of car Held that:- The funds of the Assessee were used for the purpose of acquisition of motor car and the motor car was used for the purpose of business Assessee did not produce the copy of the annual accounts to substantiate its claim that the funds of the Assessee has been used for acquisition of motor car - the Assessee has neither brought any material on record to prove that the asset was used by the Assessee for the purpose of business and the Assessee was exercising its domain, possession and ownership over the asset to the exclusion of all others - in the interest of justice and fair play one more opportunity be granted to the Assessee to substantiate his claim of expenses before the A.O. to his satisfaction thus, the matter remitted back to the AO for fresh adjudication Decided in favour of Assessee. Re-computation of disallowance of Interest expenses Interest free advances Held that:- There was no details are available with respect to the interest paid by the Assessee - there is no finding of AO or CIT(A) that the Assessee has not paid any interest to Vijay Stationers - this factual aspect needs to be verified by A.O the matter remitted back to the AO for verification. The assessee has not placed any material on record to substantiate its claim that the Assessee was having sufficient interest free advance which has been utilized for the purpose of advancing the aforesaid amounts the CIT(A) has given a finding that Assessees total capital and reserves of Rs. 9.25 crore were invested in fixed assets and inventory exceeding Rs. 26 crore and therefore the same was not available for providing interest free advances - the Assessee can be granted one more opportunity to substantiate its claim of use of interest free funds for making advances the matter remitted back to the AO for fresh adjudication Decided partly in favour of Assessee.
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2014 (1) TMI 1435
TDS on JCB charges treated as contractual payment u/s 194C instead of rent u/s 194I of the Act Held that:- The CIT(A) has given a finding on fact that all the parties have filed their returns of income and paid their taxes due as applicable - The assessee's case is duly covered by the CBDT Circular and the decision inM/s. Hindustan Coca Cola Beverage Pvt. Ltd Versus Commissioner of Income Tax [2007 (8) TMI 12 - SUPREME COURT OF INDIA] - The Revenue could not controvert the finding of the CIT(A) by placing any relevant material on record thus, the order of the CIT(A) upheld Decided against Revenue. TDS in respect of interest expenditure - Held that:- There was force in the assessee that the tax would be deductible only on the interest part and the liability can be fastened to that extent thus, the AO is directed to verify the claim of the assessee with regard to the deduction of tax and also direct to compute the liability of the assessee to the extent of interest paid by the assessee Decided partly in favour of Assessee.
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2014 (1) TMI 1434
Validity of rectification order passed u/s 154 of the Act Adjustment of cash seized against advance tax liability Date from which adjustment would be effective Interest charge u/s 234B and 234C of the Act Held that:- The decision in Shri Ram S.Sarda vs. Dy.CIT[ 2011 (12) TMI 146 - ITAT RAJKOT] followed When under the scheme of section 132B the Central Government is under obligation to pay simple interest on excess amount, the same scheme of the provision is applicable when interest is to be recovered from the assessee, may be u/s 234A, 234B or 234C - Thus, the cash seized during the course of search is required to be adjusted against taxes due including advance-tax for the purpose of computation of interest u/s 234A, 234B and 234C - the department has to adjust the seized amount towards the advance-tax from the date when it was seized and accordingly directed the assessing officer to adjust the seized cash from the date of seizure thus, the order of the CIT(A) set aside and the AO is directed to make adjustment of payment made by the assessee towards release of seized valuables against the advance tax liability for the assessment year under consideration decided in favour of Assessee.
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2014 (1) TMI 1433
Deletion of disallowance of Interest Held that:- The assessee was sanctioned a term loan of Rs.600 lakhs by IDBI Bank - The last installment of this term loan was availed by the assessee on 5.3.2003 - The assessee had already capitalized an amount of Rs.28.31 lakhs out of interest during the period ending 31.3.2003 - After this term loan the assessee did not take any term loan rather it repaid a part of this term loan and the balance outstanding as on 31.3.2005 is Rs.460 lakhs - The other loans taken by the assessee were car loans, the interest on which is definitely a revenue in nature as the cars were put to use immediately - The assessee also earned cash accrual exceeding Rs.4 crores each in the preceding year and in the year under consideration as is apparent from the annual accounts placed in the file - Besides the term loan the assessee was sanctioned working capital limit from Bank of Baroda vide letter dated 30.6.2005 and balance outstanding as on 31.3.2005 on account of working capital, the interest on which cannot be said to have been incurred for making investment in capital assets there was no infirmity of CIT(A) Decided against Revenue.
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2014 (1) TMI 1432
Sustainability of the assessment made by the Assessing Officer u/s 144 of the Income-tax Act instead of section 143(3) of the Act Held that:- The assessee has failed to comply with all the terms of the notice issued u/s 143(1) and 143(2) of the Act - All the queries raised by the Assessing Officer were not duly complied with by the assessee till the last date of hearing - The order of the lower authorities for making the assessment u/s 144 of the Act sustained. Sustainability of Addition u/s 69 of the Act Addition made by AO u/s 68 of the Act Unexplained cash credits Held that:- Once the credits appeared in the bank account of the assessee it was on the assessee to explain the source of these credits - The assessee cannot be granted relief only on the basis that these may be refund of the securities that were pledged with the Nagar Nigam, Meerut time to time at the time of contracts assigned to the assessee - Since the assessee has not given any reasonable explanation with regard to credit entries in its bank account thus, the order of the CIT (A) upheld with respect to these two credit entries treating as unexplained and sustain the addition. Disallowance made u/s 144 and 184(v) of the Act - Salary paid to partners Held that:- The Assessing Officer made the addition by disallowing the amount of salary paid to the partners to cover up the possible leakages of revenue and for violation of provisions of section 44AA of the Act - The assessees case was not covered by the provisions of section 44AD of the Act, hence Assessing Officer held that no deduction allowed to partners salary from the estimated net profit @ 8% of the receipts - where the assessment has been made u/s 144 of the Act for the failure mentioned without section then no deduction by way of any payment of salary by the firm to any partner is allowable in computing the total income chargeable under the head Profits and gains of business and profession - The clause starts with the non-obstante clause notwithstanding anything contained in any other provision of the Act thus, there was no merits in the assessees appeal Decided against Assessee. Interest u/s 234A, 234B,234C and 234D of the Act Held that:- The decision in CIT vs. Anjum M.H. Ghaswala [2001 (10) TMI 4 - SUPREME Court] followed - the charging of interest is mandatory thus, no relief can be granted on this ground also Decided against Assessee.
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2014 (1) TMI 1431
Deletion of Disallowance claimed on brokerage and commission Held that:- The decision in Assistant Commissioner Of Income-tax, Ahmedabad Circle - 1, Ahmedabad. Versus Ashima Syntex Limited. [2008 (10) TMI 298 - ITAT AHMEDABAD-B] followed the CIT(A) after considering the submissions, deleted the disallowance of commission/brokerage expenses - the nature of the expenditure treated as a "deferred revenue expenditure" in the books needs to be properly analysed before taking a view on its allowability or otherwise under the provisions of the Act - where the nature of the revenue expenditure is such that the same can be clearly and unambiguously identified over specified future time periods (e.g., discount on issue of debentures) akin to pre-paid expenses the same would be allowable over the period to which these relate proportionately - when the Tribunal has recorded a finding that the expenses relating to obtaining fixed deposits are closely linked with the business requirement of the assessee, such expenses are allowable expenses thus, the Tribunal was right in holding that the expenses for obtaining fixed deposits from the public is revenue in nature the order of the CIT(A) upheld Decided against Revenue.
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2014 (1) TMI 1430
Eligibility for deduction u/s 80IB(10) of the Act Limit exceed as provided in the section - SLP pending before the SC Held that:- The restriction on the commercial area imposed by the introduction of sub-section (d) to section 801B(10) w.e.f. 1.4.2005 are therefore not applicable to the appellant as this project having commercial area had commenced prior to the said date thus, the housing projects commencing construction before the introduction of the amended provisions, made effective from 1.4.2005, would be entitled for deduction u/s. 801B(10) even though it contained the commercial area - Relying upon CIT vs. Brahma Associates [2011 (2) TMI 373 - BOMBAY HIGH COURT] the claim of deduction u/s.801B(10) is allowable to the appellant - There was no reason to interfere with the order of the ld. CIT(A) - the project was approved as a housing project and the commercial area is even less than 5% - Decided against Revenue.
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2014 (1) TMI 1429
Penalty u/s 271(1)(c) of the Act Held that:- Two situations provided in Explanation 1 appended to section 271(1)(c) makes it clear that that when this deeming fiction comes into play in the above two situations then the related addition or disallowance in computing the total income of the assessee, for the purpose of section 271(1)(c) would be deemed to be representing the income in respect of which inaccurate particulars have been furnished. It is not a case where the assessee had not furnished explanation or had not substantiated the explanation - The assessee had produced even Director of the payee company who had agreed to have received the payment - The Tribunal had reversed the order of CIT(A) on the basis that there was no evidence in the paper book about the complaints received by the assessee and communicated to the payee company - If assessee could produce such evidence, the findings of the Tribunal might have been different - The CIT(A) had given relief by not considering this aspect - it is a case where two appellate authorities has taken different view on the same subject by relying upon different evidences where there are two views possible penalty u/s 271(1)(c ) cannot be invoked - penalty u/s 271(1)( c) was mot imposable Decided in favour of Assessee.
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2014 (1) TMI 1428
Demand u/s 201(1) of the Act - Leviability of Interest u/s 201(1A) of the Act - Liability to deduct TDS on medical allowance Scope of definition of perquisites u/s 17(2)(v) of the Act Held that:- Exemption in respect of medical expenditure and leave travel is considered after collecting and verifying the details and evidences furnished by the employees in this regard as per the policies and controls put in place to ensure that the requirement of Rule 2B are fulfilled - The details filed before the Assessing Officer for TDS explains the policies adopted to ensure fulfilment of the requirement of Rule 2B and the process adopted in considering the exemption / deduction under the proviso (iv) to section 17(2) of the Act - the assessee has put in place internal controls to discharge the statutory obligation under section 192 of the Act and it would appear that every effort is made to comply with the requirements of section 192 by making a bona fide estimate of taxable salary in the process of making TDS there under - By allowing the employee to claim exemption, the assessee is not benefited - the orders passed by the Assessing Officer under section 201(1) and 201(1A) is unsustainable in law and has rightly been cancelled by the learned CIT(Appeals). The liability of the person deducting tax at source cannot be greater than the liability of the person on whose behalf tax at source is deducted - The Assessing Officer has ignored this aspect and has proceeded to pass the orders under section 201(1) and 201(1A) of the Act. Opportunity of being heard u/s 250(1) and 250(2) of the Act - Held that:- The learned CIT (Appeals) had only called for the break-up of the figures relating to medical reimbursement which was actually paid to employees and that which was considered not forming part of salary by the employees on production of evidence by the employee - These figures are the same figures on the basis of which the Assessing Officer passed orders under sections 201(1) and 201(1A) of the Act Decided against Revenue. Exemption u/s 17(2) of the Act As regards the grievance regarding finding that there was no dispute that the assessee has satisfied itself that the employees were entitled to exemption / relief under proviso (iv) to section 17(2) of the Act, nothing has been brought on record before us to demonstrate that the Assessing Officer disputed these facts Decided against Revenue.
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2014 (1) TMI 1427
Assessment order u/s 143(3) r.w. section 144C(3) of the act challenged Held that:- The request of the assessee for withdrawal of the objection was accepted by the DRP while passing the order/directions dated 13.7.2007, no directions per-se were passed by the DRP as per Section 144C(5) of the Act - Even otherwise once the objections were withdrawn and the assessee opted to proceed to file the appeal before the CIT(A) which was allowed by the DRP then they cannot be any directions under sub. Sec. 5 of section 144C of the Act thus, the assessment order passed on 19.8.2010 by the Assessing Officer is without any jurisdiction and unwarranted and therefore the same is not sustainable under law - The order passed by the AO subsequent to the directions of the DRP is invalid and accordingly the same is quashed - the CIT(A) has dismissed the appeal of the assessee filed against the assessment order 25.2.2010 on the grounds that the AO has subsequently passed a order u/s 144C(13) dated 19.8.2010 which was challenged by the assessee before this Tribunal and thus no finding has been given on merits - As the order dated 19.8.2010 has already been quashed, the order of the CIT(A) set aside and the matter remitted back for deciding Decided partly in favour of Assessee.
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Customs
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2014 (1) TMI 1461
Imposition of redemption fine - Smuggling of gold bars - Confiscation of goods - Imposition of penalty - Held that:- Considering the liberal policy of import of gold prevailing at the time of seizure, it is difficult to agree that the appellant would have made a profit of 40% of the value of seized gold if it did not get seized and then confiscated. The redemption fine that was generally being imposed for seizures at the relevant time was broadly between 10% to 25% of seizure value. It is only proper that this appellant is treated more or less on par with similarly placed offenders. In this particular case there is higher margin accruing to the appellant due to the increase in market value of the goods between time of seizure and time of redemption. So a comparatively higher limit of redemption fine can be adopted - Redemption fine reduced - However, penalty sustained - Decided partly in favour of assessee.
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2014 (1) TMI 1460
Denial of refund claim - Mistake in valuation of goods - Non production of document to prove mistake - Held that:- there was no dispute between the appellant and the Department at the time of import but an assessment was done based apparently on wrong figures which both sides did not notice. By processing the refund claim there is no review of an adjudication done earlier because no dispute was adjudicated by the assessment order. The fact that the appellant could have challenged the assessment under section 128 of the Customs Act cannot be a reason to deny processing of a refund claim if filed within the four corners of the provisions under section 27 of Customs Act - that if appellant is able to prove by producing proper documents that there was a mistake at the time of initial assessment and other conditions of section 27 are satisfied, the appellant will be eligible for refund. The matter is remitted to the adjudicating authority for deciding the refund claim on merit considering the directions - Decided in favour of assessee.
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2014 (1) TMI 1459
Rectification of mistake - Correction in date of Essentiality Certificate - Linguistic mistake - EPC contract for executing the 2400MW power project - Project import - Held that:- All rectifications sought by the respondents are granted - Rectification made. ROM regarding claim of benefit of notifications - Held that:- the prayer made by the appellants on the basis of the two Notifications issued by the Central Government in 2012 is not liable to be entertained under Section 129B(2) of the Customs Act. - Decided against the assessee.
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2014 (1) TMI 1458
Stay application - Denial of refund claim - Violation of condition stipulated in Notification No. 40/2002-Cus., dated 12-2-2002 - Held that:- proceedings were initiated against various importers including the respondent for underinvoicing with regard to import of Polished Marble Slabs from Nepal and for not fulfilling the conditions stipulated in Notification No. 40/2002-Cus., dated 12-2-2002. Both the lower authorities dropped the proceedings initiated against the respondent on the ground that the import was as per Indo-Nepal Treaty, which would have the overriding effect against the exemption notification - Boards Circulars would be binding on the Department, even if they are contrary to the law. We further find that it is not the case of the Department that the learned Commissioner (Appeals) Order is ex facie illegal or without jurisdiction - Stay denied.
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2014 (1) TMI 1457
Classification of goods - Claim of duty drawback - Held that:- It was not justified in defence grounds by tine Respondent as to how the goods used on the dining table mat shall be handicraft. Facts of the case clearly suggest that fiction was created to claim higher drawback. Burden was on the assesse to prove that the goods squarely fall in the category of handicraft when onus of proof was discharged by Revenue bringing the goods to a different class. No reasons were on record to appreciate the decision of the learned Adjudicating Authority. But Adjudicating authority presumed that goods shall be governed by entry 702000090 for no rhyme or reason. Rule of classification needs reason to entertain a claim of higher rate of drawback and it is no ones right to take a benefit under law unless that is proved and backed by reason - appellant failed to substantiate its claim by good reasons - Decided in favour of Revenue.
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Corporate Laws
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2014 (1) TMI 1462
Violation of the provisions of Section 3(3)(a)(b)(c) - Whether the Commission is required to give notice or hearing, to the person against whom an information is given or a reference is made, in terms of Section 19 of the Competition Act, 2002, before the Commission directs further investigation, in exercise of the powers conferred upon it by sub-section (7) of Section 26 of the Act - Held that:- investigation by the Director General, pursuant to the Commission forming an opinion that prima facie there exists a contravention of the provisions of the Act and directing investigation by the Director General, cannot be treated at par with the investigation by a police officer into a cognizable offence in exercise of the powers conferred upon him by the Code of Criminal Procedure, 1973. Section 156 of the Code of Criminal Procedure empowers any officer in charge of a police station to investigate any cognizable case, without the order of a Magistrate, wherever a cognizable offence is committed within the local area of jurisdiction. As regards non- cognizable offences, sub-section (2) of Section 155 of the Code of Criminal Procedure mandates that no police officer shall investigate a non-cognizable case, without the order of the Magistrate having power to try such case or commit the case for trial. There is no provision in the Code of Criminal Procedure for an accused to apply to the investigating officer to permit him to examine his witnesses. Under the scheme of the Code, a police officer investigating a criminal case cannot allow cross-examination of witness, during the course of investigation conducted by him. On the other hand, clause (4) of the Regulation 41 expressly permits the Director General to record evidence and the power conferred upon him includes the power to record evidence of the enterprise against whom the information is being investigated by him. Unlike the provisions of the Code of Criminal Procedure, clause (5) of Regulation 41 empowers the Director General to allow cross-examination of a witness by the opposite party during the course of investigation conducted by him. Therefore, the scheme of investigation by a police officer, in terms of the provisions contained in the Code of Criminal Procedure and investigation by the Director General in terms of the Competition Act, are altogether different. If a police officer, while carrying out investigation into a cognizable offence, receives information or evidence relating to Commission of yet another offence, whether that be cognizable or non-cognizable, he is competent to carry out investigation into the said offence as well, the reason being that investigation in a cognizable case can be carried out without the order of the Magistrate and as provided in sub-section (4) of Section 155, where the case relates to two or more offences, of which at least one is cognizable, the case shall be deemed to be a cognizable one, notwithstanding that the other offences are non- cognizable. The Director General, on the other hand, does not have any suo motu power of investigation and, therefore, cannot be treated at par with a police officer, investigating a cognizable case. Under Section 147 of Income-tax Act is given by the same authority which undertakes the scrutiny and assessment, whereas under the scheme of the Act, the opinion is framed by one authority, whereas the investigation is conducted by another authority, in terms of the directions of the first authority - report of the Director General, to the extent he has reported contravention of the provisions of Section 4 of the Act by the petitioner by misuse of its dominant position as a VSF manufacturer, shall not be subjected to the procedure prescribed in sub-section (8) of Section 26 nor shall the Commission be entitled to pass order on the said report, in terms of the provisions of Section 27 of the Act. The Commission, however, shall be entitled to treat the aforesaid part of the report of the Director General as an information in terms of Section 19 of the Act and proceed accordingly in terms of the provisions of the Act, if the Commission on consideration of the aforesaid part of the report of the Director General, is of the opinion that there exists a prima facie case of contravention of the provisions of Section 4 of the Act by the petitioner - Decided in favour of Petitioner.
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Service Tax
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2014 (1) TMI 1456
Amount paid to parties situated abroad service tax not paid Waiver of Pre-deposit - Held that:- The appellant has already deposited an amount of Rs. two lakhs as pre-deposit The amount deposited by the appellant can be considered as enough deposit to hear and dispose the appeal as the issue involved in this case is an arguable one and needs considerable time to come to a conclusion - the application for the waiver of pre-deposit of the amounts allowed stay granted.
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2014 (1) TMI 1455
Waiver of pre deposit - Demand of service tax - Reimbursement charges - Business Auxiliary Services - Held that:- appellant has made out a case for the waiver of pre-deposit of the amounts involved as the issue is regarding inclusion of reimbursement charges in the valuation for discharge of service tax liability under the category of Business Auxiliary Services. Application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Following decision of Intercontinental Consultants and Technocrats Pvt. Limited [2012 (12) TMI 150 - DELHI HIGH COURT] - Stay granted.
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2014 (1) TMI 1454
Stay application - Waiver of pre deposit - Demand of service tax - Renting of immovable property - Held that:- individuals have entered into agreement with the bank undisputedly that the State Bank of India has given the rent cheques in individuals name and not in appellant associations name - appellant has made out a strong prima facie case for the waiver of pre-deposit of the amounts involved. Applications for the waiver of pre-deposit of the amounts involved are allowed and recovery thereof stayed till the disposal of appeals - Following decision of Dinesh K. Patwa Versus Commissioner of Service Tax [2012 (10) TMI 67 - CESTAT AHMEDABAD] - Stay granted.
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2014 (1) TMI 1453
Ineligible canvat credit against TR-6 Challan - Reversal of credit taken suo-moto - Waiver of Pre-deposit Held that:- There was no merits in the contentions of assessee that at the stay stage as on a plain reading of Rule 4(a) of Service Tax Rules, the rule is applicable only in the case where service provider has paid excess service tax in a quarter and adjust the excess paid for the discharge of service tax in the subsequent quarters - that appellant has not made out a prima facie case for complete waiver assessee directed to deposit Rupees sixty thousand as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2014 (1) TMI 1452
Annexures of cenvat credit enclosed but not examined as per Rule 4 of Service Tax Rules - Waiver of Pre-deposit Held that:- The particulars required to be mentioned in the invoices were not mentioned and the Commissioner did not accept those enclosures as the documents on which CENVAT Credit would be available - Prima facie, the invoices should contain all the particulars relating to the availability of credit and passing of the credit as prescribed in the relevant Rule - assessee offered to deposit Rupees Forty Lakhs as pre-deposits and the same was ordered upon such submission rest of the deposits to be waived till the disposal partial stay granted.
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2014 (1) TMI 1451
Waiver of pre deposit - Commercial or industrial construction activities - Maintenance and repair of roads - Development of the parks along with boundary walls - Held that:- activity of repair of roads stands proposed to be exempted retrospectively in the Finance Bill of 2012. As regards the construction of parks, same would not be prima facie covered under the activity of commercial or industrial construction services. We also note that the demand is barred by limitation. We accordingly are of the view that the applicant has a good prima facie case on merits and we dispense with the condition of pre-deposit of service tax as also penalties imposed upon them and stay recovery thereof during the pendency of the appeal - Stay granted.
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2014 (1) TMI 1450
Management, Maintenance & Repair - Repair of existing roads - Held that:- If the definition of Management, Maintenance and Repair is read that does not throw light to construe roads of Municipality is immovable property as per Transfer of Property Act. Once road is not covered by that law, it is inconceivable to tax the service provided in respect of property of Municipality - Decided in favour of assessee.
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2014 (1) TMI 1449
Waiver of pre-deposit of Service Tax - Commercial Training & Coaching Classes - Held that:- The appellant herein is conducting training of pupils for pilot course. After conducting of successful training, the students who are enrolled in Flying Club of the appellant are given a test by DGCA authorities and on passing the said test, they can be employed as Pilots. Prima facie, the benefit of Notification No. 24/2004, which exempts the vocational training institutions from the ambit of Service Tax, may be applicable in this case - appellant has made a prima facie case for the waiver of the pre-deposit of the amounts involved - Following decision of Pasha Educational Training Inst. v. CCE, Hyderabad [2008 (12) TMI 80 - CESTAT, BANGALORE] and St. Antonys Educational & Charitable Society v. UOI [2005 (8) TMI 2 - Kerala High Court] - Stay grnated.
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2014 (1) TMI 1448
Waiver of pre deposit - Site formation and clearance, excavation, earth moving and demolition services - Held that:- by the tender awarded to the appellant, the activity in the scope of work to the appellant is for maintenance of the mine and also for excavation of lignite and other ores from the said mine. To complete the mining work, it is common knowledge that over burden has to be removed which also contains minerals which have been mentioned in the said tender awarded to the appellant. We find that prima facie the issue seems to be covered by the judgment of this Tribunal in the case of Vijay Leasing Company - [2010 (12) TMI 782 - CESTAT, BANGALORE] and M. Ramakrishna Reddy - [2008 (10) TMI 115 - CESTAT, BANGALORE]. In view of the foregoing, we are of the opinion that the appellant has made out a prima facie case for the waiver of the pre-deposit of the amounts involved - Stay granted.
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2014 (1) TMI 1447
Waiver of pre deposit - Tour operator services - Activity of providing air transport, transportation from airport to hotel and back to airport - Held that:- prima facie activity undertaken by the applicant does not cover under the category of tour operator services. Further in the case of National Aviation [2012 (7) TMI 704 - CESTAT, NEW DELHI] this Tribunal has granted unconditional waiver of pre-deposit, we grant waiver of entire amount of service tax and interest and various penalties and stay recovery thereof during the pendency of the appeal - Stay granted.
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Central Excise
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2014 (1) TMI 1470
Waiver of pre deposit - Recovery of excise duty - Penalty u/s 11AC - Invokation of section 11A(1) - Held that:- neither before the learned Tribunal nor even before this Court the petitioner-original appellant has pleaded any financial hardship and/or undue hardship - merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequence flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given - For a hardship to be 'undue' it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it - Following decision in case of Benara Valves Ltd. [2006 (11) TMI 6 - SUPREME COURT OF INDIA] - However, extention of time make pre deposit grated - Decided against assessee.
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2014 (1) TMI 1469
Benefit of CENVAT Credit - Credit on sugar cess - CENVAT credit taken on Sugar Cess paid as countervailing duty or CVD - Recovery of irregularly availed and utilized of CENVAT Credit under Rule 12 of the CENVAT Credit Rules, 2004 - Whether the assessee is entitled for Cenvat Credit, on the Sugar Cess (under Section 3(4) of the Sugar Cess Act, 1982) as the same is not one of the duties allowed for Cenvat Credit under Rule 3(1) of the Cenvat Credit Rules, 2004 - Held that:- there must be actual quid pro quo for a fee has undergone a sea change in the recent years. The tax recovered by a public authority invariably goes into the Consolidated Fund, which ultimately is utilized for all public purposes. Whereas, a cess levied by way of fee is not intended to be, and does not become, a part of the Consolidated Fund. It is earmarked and set apart for the purpose of services for which it is levied. Article 270 make it very clear that no money out of the Consolidated Fund of India shall be appropriated except in accordance with law and for the purposes and in the manner provided in the Constitution - Any cess levied and collected in order to constitute a fee after such collection should go into a special fund earmarked for carrying out the purpose of the Act. The said fund so set apart should be appropriated specifically for the performance of the specified purpose and it should not be merged in the public revenues. In other words, the cess levied by way of fee is not intended to be and does not become a part of the Consolidated Fund. It should be earmarked and set apart for the purpose of services for which it is levied. Then only it should be described as a fee and not tax. If the cess levied and collected is credited to the Consolidated Fund of India and it has to be appropriated by the Parliament by law and then only the said amount could be credited to the Fund; it ceases to be a fee and partakes the character of a duty or a tax. Section 4 of the Act explicitly provides that the proceeds of the duty of excise levied under Section 3 shall be credited to the Consolidated Fund of India. Sub-Section (2) of Section 3 of the Sugar Development Fund Act, 1982, provides that the amount so credited, shall after due appropriation made by Parliament by law be credited to the Sugar Development Fund. Thus the cess collected under the Act invariably goes to the Consolidated Fund, which ultimately is utilized for all public purposes. Therefore, there is no quid pro quo between the cess levied and collected and the services rendered for such payment. On the contrary, the proceeds are credited to the Consolidated Fund of India which is meant to be utilized for all public purposes, may be including the purpose contemplated under the Sugar Development Fund Act, 1982. In the light of the aforesaid statutory provisions, the cess imposed under the Act is a duty of excise or a tax - Therefore, the sugar cess paid under the Act is tax, and to be precise it is DUTY OF EXCISE and not FEE. When an assessee imports goods into India in addition to payment of basic Customs Duty, he shall able be liable to pay additional duty of customs equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. Therefore, on imported goods or articles, in addition to basic Customs Duty, an assessee is also liable to additional duty of customs, equivalent to excise duty. The excise duty is leviable under the Central Excise Act 1944 and also the Sugar Cess Act, 1982. Duty of excise is not ( sic ) collected as a cess at the time of production of the sugar in the assessee's sugar factory in India. It is not also in dispute that it is also collected at the time of importing raw sugar. At the time of importing raw sugar the assessee has paid the additional Customs duty or CVD (countervailing duty) as prescribed under Section 3 of the Customs Tariff Act of 1975. If the Article imported is a like article produced or manufactured in India and if excise duty on such like article is leviable, the assessee is liable to pay the additional duty. The Excise Duty on sugar is payable under two enactments, i.e., [1] Section 3 of Central Excise Act of 1944, at the rate prescribed in the Central Tariff Act, 1985. In addition, the assessee is also liable to pay cess as a duty of excise under the Sugar Cess Act of 1982. On such additional duty or CVD paid at the time of import by the assessee, apart from the Basic Customs Duty, he is entitled to the CENVAT Credit in terms of clause (vii) of Rule 3 of CENVAT Credit Rules, 2004. Assessee was entitled to claim CENVAT credit in respect of the cess paid as additional duty (CVD) on raw sugar imported under the Sugar Cess Act of 1982 read with Section 3 of the Customs Tariff Act, 1975 - Decided against Revenue.
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2014 (1) TMI 1468
Denial of rebate claim - Rebate in terms of Rule 18 of the Central Excise Rules, 2002 and notification no.19/2004 dated 6.9.2004 - Appellate authority allowed rebate claim - Held that:- When the Revenue authorities as well as revisional authority have concurrently come to the conclusion that there was direct co-relation of goods manufactured in the factory with the goods being exported and when such fact was established through reliable, undisputed and contemporaneous documentary evidence, we are not inclined to interfere in the writ jurisdiction under Article 226 of the Constitution of India - Revisional authority, as noted above, confined this decision to the facts of the case and has in fact provided that such lapses cannot be allowed to be repeated time and again and in case of future reoccurrence of non-compliance of prescribed procedure, department would be justified in viewing such matter as substantial non-compliance of prescribed procedure resulting into rejection of rebate claim - Decided against Revenue.
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2014 (1) TMI 1467
Rate of tax - Tax on education cess - whether the appellant is liable to pay education cess again on the amount which has been worked out by calculating the customs duty payable on the goods in respect of clearances made by 100% EOU to domestic tariff area - Held that:- adjudicating authority committed serious error in disregarding binding precedent and that there are absolutely no disputed facts. We would, therefore, not insist that the petitioners once again follow the same gamut of taking the appeal route. To revert back to the issue at hand, we may recall that the question of computation of Education Cess and Secondary and Higher Education Cess was decided finally by the Tribunal in favour of the petitioners. As of now, such decision of the Tribunal holds the field. Such decision of the Tribunal would be binding on the adjudicating authority. Even if the Department is of the opinion that the issue is not free from doubt, it is not open for the adjudicating authority to ignore the binding precedent. We may notice that under the Central Excise Act, 1944 and the Customs Act, the Department has the right to appeal even against the order-in-original passed by the adjudicating authority. This is in contrast to the provisions contained in the Income-tax Act, 1961 where against an order passed by the assessing officer, the Department has no right to appeal. Only remedy available to the Revenue is by way of a revision against the order of the assessing officer that too only if it is found that such order is erroneous and prejudicial to the interest of the Revenue. Such rigors however, are not applicable insofar as the Departments right to appeal against the order of the adjudicating authority is concerned under the Central Excise Act, 1944 - Therefore, decided against assessee.
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2014 (1) TMI 1466
Rebate under Rule 18 of the Central Excise Rules, 2002 - Simultaneous benefit of rebate on finished goods and inputs used in manufacturing of such goods on export - Whether, the word or used in Rule 18 should be read as and because under Rule 18 of the Central Excise Rules, 2002 - Held that:- When we consider Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004, we find that it deals with the rebate of whole of the duty paid on materials i.e. inputs used in the manufacture or processing of export goods. It nowhere lays that on finished goods also, rebate can be claimed. Thus, issuance of two difference notifications makes it clear that both the benefits are not available to be claimed simultaneously, and the words whole of the duty used in the notification has to be understood in the context of materials/inputs used in the manufacture or processing of export/inputs used in the manufacture or processing of export goods, whereas Notification No. 19/2004-C.E. (N.T.) has to be understood with respect to the manufactured/finished goods. Issuance of two separate notifications also indicates that the benefit on both is not available at the same time. Merely by the fact that Form ARE-2 is providing either to claim the rebate on finished goods or on inputs used in manufacture of such goods, it cannot be culled out that the same is available on both i.e. finished goods as well as on the inputs. Merely by preparation of any combined form for both the benefits, the word or cannot be construed as and to be used conjunctively. The statutory Rules 18 and 19 of the Rules of 2002, which have been framed, make it clear that that exemption of duty or rebate is not available on both i.e. inputs as well as finished goods; same is available only on one and such intendment has to be given full effect to - Therefore, decided against assessee.
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CST, VAT & Sales Tax
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2014 (1) TMI 1465
Levy of entry tax and penalty on the sale of sugar manufactured in the petitioner's sugar mill through its selling agents - Whether a manufacturer who has sold the goods to a dealer failed to receive the amount then he is liable to pay penalty, tax and interest in terms of Section 12(3) of the U.P. Tax on Entry of Goods Act, 2008 - Held that:- petitioner company could not be compelled to make deduction of entry tax at source for sales made to persons/ dealers within the same local area. For the respondents, it is stated that transaction in question has not been examined, as the petitioner has not filed his reply. The question whether sale is made at factory gate, or the petitioner's agents are selling the sugar into different local areas where on the entry of non-levy sugar in that local area, entry tax is payable, which the petitioner is required to collect from its selling agents and deposit, failing which penalty is leviable, is question of fact - authorities, however, are still required to decide the petitioner's objections that the situs of sale is at factory gate and not in any other local area. The matter requires investigation of facts by the competent authority after considering the petitioner's objections - Following decision of Mawana Sugars Ltd. v. Deputy Commissioner, Commercial Tax & Ors. [2013 (6) TMI 28 - ALLAHABAD HIGH COURT] - Decided in favour of assessee.
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2014 (1) TMI 1464
Initiation of revisional proceedings - Whether appellate proceedings are pending for adjudication before it, the revenue/ State cannot initiate the revision proceedings under Section 75 of the GVAT Act, 2003 read with Section 9(2) of the Central Sales Tax Act, 1956 in respect of the same assessment which is the subject matter of appeal - Held that:- Tribunal has materially erred in considering the legality and validity of the initiation of revisional proceedings, taking the original assessment order under suo motu revision - Even otherwise, when the revisional proceedings were under contemplation and initiation of suo motu revisional proceedings was not under challenge before the Tribunal, the Tribunal has exceeded in its jurisdiction in quashing and setting aside the proposed initiation of suo motu revisional proceedings and in holding that the Commissioner has no jurisidiction and / or power to exercise the revisional jurisdiction in the case. - order set aside - Decided in favour of Revenue.
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Indian Laws
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2014 (1) TMI 1463
Request for documents - Right to information - Delay in furnishing information - Held that:- delay has been caused by the CPIO Shri S.K. Verma inasmuch as the appellants RTI application dated 19-9-2011 was acted upon by him only on 11-11-2011 when he permitted the appellant to inspect the records. Thereafter, in compliance with the direction of the FAA, Shri S.K. Verma, CPIO, vide his letter dated 6-2-2012 requested Shri Mohinder Singh, Asstt. Registrar to provide File No. 32(15)/CESTAT/Enquiry Committee/Admn./2011 (including all part files) to him so that he could give date for inspection to the appellant. The Asstt. Registrar, Shri Mohinder Singh, vide letter dated 26-3-2012 requested the appellant to inspect the file on 29-3-2012 but he declined inspection on that day on the grounds that the file was under submission. That in fact he submitted the file to Registrar on 23-3-2012 and the file had not been received back. Shri Mohinder Singh, Asstt. Registrar, therefore is prima facie responsible for failing to make available the file for inspection to the appellant in spite of initially offering file for inspection and thereafter failing to get back to the appellant and allowing inspection. Both the CPIOs are prima facie responsible for delay in providing information to the appellant - Decided in favour of Appellant.
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