TMI Tax Updates - e-Newsletter
February 19, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
FEMA
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
TMI SMS
Highlights / Catch Notes
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Income Tax:
MAT - Book Adjustments - ascertained liability - where the computation of the provision for bonus was on the basis of Payment of Bonus Act, 1965, the same is ascertained liability - HC
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Income Tax:
Software expenses - revenue v/s capital expenditure - software may be needed like raw material - computer software expenses were revenue in nature - HC
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Income Tax:
Whether the Settlement Commission could reopen its concluded proceedings by invoking Section 154 so as to levy interest u/s 234B - Held No.
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Income Tax:
Power of ITAT to review the order - a statutory authority cannot exercise power of review unless such power is expressly conferred on it. - HC
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Income Tax:
Whether the Settlement Commission could reopen its concluded proceedings by invoking Section 154 so as to levy interest u/s 234B - Held No.
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Income Tax:
Enhanced Compensation – Interest on enhanced compensation - Waiver of Interest - assessee was entitled for waiver of interest till the date of receipt of enhanced compensation - HC
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Income Tax:
Deductions versus Exemptions in Income Tax Act, 1961 - Disallwance u/s 14A versus Deduction u/s 80P
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Corporate Law:
Alteration in Articles of Association - Even if the petitioners have accepted by participating in elections prior to filing of the writ petition, still, the delay and laches of ten months will not stand in their way to legitimately question the altered AOA being in contravention of provisions of the Companies Act, 1956 - HC
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Indian Laws:
First Meeting of India-Uae High Level Task Force on investments held in Abu Dhabi
Articles
News
Case Laws:
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Income Tax
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2013 (2) TMI 406
Re opening of assessment - assessee has received the benefit from the scheme of amalgamation, the same would be offered for tax as business Income - Held that:- The purported reasons for reopening do not even allege that there has been a failure on the part of the assessee to disclose any material fact. In fact, even in the impugned order dated 31.05.2012 there is no mention of what fact the assessee had failed to disclose which was necessary for the assessment in the original round of assessment. Failure to disclose all material facts necessary for assessment is a condition precedent for reopening of an assessment beyond the period of four years from the date of assessment. This is a pre-condition set out in the statute itself. This pre-condition has not been satisfied the impugned notice ought to be set-aside - in favour of assessee.
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2013 (2) TMI 405
MAT - Book Adjustments - Whether the phrase “ascertained liability” as used in Explanation (c) of Section 115J(1A) includes in its sweep, the entire amount set aside for payment of bonus or merely the actual payment of bonus? - Held that:- However, if it was only an estimation then it could not be regarded as an ascertained liability. Since, the position is not clear on facts AO should determine as to whether the computation of the provision for bonus was on the basis of Payment of Bonus Act, 1965. If so, the said provision would have to be treated as an ascertained liability. On the contrary, if he finds the provision for payment of bonus was not in accordance with the provisions of the Payment of Bonus Act, 1965 and it was merely an estimation then the original assessment of the assessing officer would hold. Rural Branches - provision for bad and doubtful debts, Reserve for bad and doubtful debt further provision & Reserve for bad & doubtful debts 5% of taxable income - Whether Tribunal was right in holding that the said items were unascertained liabilities and therefore added back to the book profits of the assessee by invoking Section 115-J(1A) read with Explanation (c) of the Act? - Held that:- Decided in favour of assessee as relying on Commissioner of Income Tax-IV, Delhi Versus M/s HCL Comnet Systems & Services Ltd. [2008 (9) TMI 18 - SUPREME COURT]
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2013 (2) TMI 404
Software expenses - revenue v/s capital expenditure - Held that:- In favour of assessee as decided in COMMISSIONER OF INCOME-TAX Versus VARINDER AGRO CHEMICALS LIMITED [2008 (10) TMI 100 - PUNJAB AND HARYANA HIGH COURT] Since technology is fast changing and day-by-day systems are being developed in a new way, software may be needed like raw material - view taken by the Tribunal that computer software expenses were revenue in nature, is correct - against revenue. Sales tax subsidy & discounts received from customer - ITAT treated it as “business income” & directed the A.O not to exclude 90% of the amount of sales tax subsidy from “profits of business” for the purpose of computing deduction u/s 80HHC - Held that:- Neither the sales tax subsidy nor the profits from discounts on early payments is of similar nature to brokerage, commission, interest, rent or charges, which may allow the revenue to deduct profit to the extent of the 90% of such sum for the purposes of Section 80HHC. The judgment in Ravindranathan Nair's case (2007 (11) TMI 10 - SUPREME COURT OF INDIA), relates to processing charges, which will fall within the expression “charges” which are to be reduced by 90% for the purposes of calculating the export income. Therefore, the aforesaid judgment has no applicability to the issue raised in the present case - no substantial question of law arises for consideration .
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2013 (2) TMI 403
Undervaluation of profits by changing method of valuation of work in progress - CIT (A) allowed the appeal of the appellant but was reversed by ITAT - Applicability of AS-7 issued by ICAI - Held that:- CIT (A) in his judgment has rightly held that change in the accounting system was bona fide after taking into consideration the facts in the present case. The ITAT however, while giving its reasons has clearly avoided to give any finding on this question of fact and as such, it cannot be said that ITAT had given any finding against the appellant on the question of bona fides of the appellant or had set aside the finding which was recorded by the CIT (Appeals). The submission made by revenue that this finding was confirmed by ITAT cannot be accepted. CIT(A) has rightly observed that since there was no sale of flats in the earlier assessment year, the appellant could have shown the said expenditure which was incurred, as loss and could have carried forward the loss in the next year. Secondly, it is admitted position that in the subsequent years, the appellant has been following AS-7 accounting system and the same was accepted by the AO. In fact thereafter, the Central Government has directed all the developers and builders to follow AS-7 accounting system. Taking into consideration the aforesaid facts, therefore, the ITAT has clearly erred in setting aside the order passed by the CIT(A). Thirdly the ratio of the judgment in the case of British Paints India Ltd (1990 (12) TMI 2 - SUPREME COURT) would strictly not apply to the facts of the present case as in the present case, however, the costs in fact were indirect costs namely financial costs, general administrative costs and marketing costs and, therefore, they had to be shared amongst three projects and had to be considered in the profit and loss account under AS-7 system. The ratio of this judgment, therefore, strictly speaking would not support the case of the revenue - in favour of assessee.
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2013 (2) TMI 402
Capital Gain - Appellant failed to adduce Corroborative documentary evidence - Whether the assessee was entitled to claim deduction of Rs. 3.5 lakhs on account of expenses from the sale consideration of Rs. 9.25 lakhs received by him from the sale of the shop – Held that:- The onus was upon the assessee to substantiate that Rs. 3,50,000/- had been spent by him as he had claimed deduction on that account but had failed to produce any material to establish the same. The nature and source of Rs. 3,50,000/- had also not been proved. In fact, the expenditure had not been disclosed in the books of account which were produced at the appellate stage by the assessee. In favour of revenue
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2013 (2) TMI 401
Whether Tribunal is right in law in admitting a second Misc. Application for recalling the original order when the first Misc. Application has been rejected by holding that there was no mistake apparent from the records which required action u/s 254(2) Held that:- Following the decision in case of Pearl Woolen Mills (2009 (11) TMI 48 - PUNJAB AND HARYANA HIGH COURT) that a statutory authority cannot exercise power of review unless such power is expressly conferred on it. The Tribunal has sought to review its earlier order dated 14.8.1998 without there being any specific power of review vested with it. Further, an application u/s 254(2) had already been rejected on earlier occasion on 30.9.1999. In such a situation, the order impugned herein dated 13.3.2000 cannot be legally sustained and, is, thus, set aside. In favour of assessee
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2013 (2) TMI 400
Whether the Settlement Commission could reopen its concluded proceedings by invoking Section 154 so as to levy interest u/s 234B Held that:- Following the decision in case of Brij Lal (2010 (10) TMI 8 - SUPREME COURT) that as per Sec. 245-I the order of the Settlement Commission is made final and conclusive on matters mentioned in the application for settlement except in the two cases of fraud and misrepresentation in which case the matter could be reopened by way of review or recall. Thus, Settlement Commission cannot reopen its concluded proceedings by invoking Section 154. One must keep in mind the difference between review/recall of the order and rectification under section 154. The schedule of Chapter XIX-A does not contemplate invocation of section 154 otherwise there would be no finality to the assessment by settlement which is different from assessment under Chapter XIV where there is an appeal, revision, etc. Settlement of liability and not determination of liability is the object of Chapter XIX-A. In favour of assessee
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2013 (2) TMI 398
Enhanced Compensation – Interest on enhanced compensation - Waiver of Interest under Income Tax Act - Land was acquired by the State Government on 12.10.1979 - Compensation was enhanced by Court dated 7.10.1988 - Enhanced compensation received during the period from July to November 1989 in two installments relating to A.Ys 1982-83 to 1988-89 – Held that:- The petitioner received the enhanced compensation during the period from July to November 1989 in two installments relating to A.Ys. 1982-83 to 1988-89. The rejection of the petition on the ground that the assessee had the order of the High Court available with him on 4.11.1988 and so the interest could be waived upto 30.11.1988, would not be correct. It was not disputed that the enhanced compensation and the interest was received between July to November 1989 and the assessee did not know before that the amount which was to be depicted in the income tax return for purposes of tax. The assessee was, thus, entitled for waiver of interest till the date of receipt of enhanced compensation All the four petitions are partly allowed and it is held that the Commissioner was not right in holding that there was no proper justification for delay after 30.11.1988 in filing return for the assessment years in question. Remand back to AO
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Customs
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2013 (2) TMI 395
Interest on the amount of refund - Held that:- Liability of the revenue to pay interest under Section 11BB commences from the date of expiry of three months from the date of receipt of application for refund and not on the expiry of the said period from the date on which order of refund is made. Thus the appellant is eligible for the interest from three months after the date of filing of the refund application till the amount of refund is sanctioned to him. As regards the judgment relied upon by the departmental representative the Apex Court in Ranbaxy Laboratories Limited [2011 (10) TMI 16 - SUPREME COURT OF INDIA] has clearly settled the law in an identical situation in favour of assessee
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2013 (2) TMI 394
Condition of the exemption notification - Assessee import medical equipments duty-free under Notification No. 64/88-Cus dated 1.3.88 - Under the said notification, the hospital had continuing obligation to provide free treatment to at least 40% of their outdoor patients and also reserve at least 10% of the hospital beds for indoor patients from poor families with income less than Rs.500/- per month - whether the hospital was duly discharging their continuing liabilities under the notification Held that:- Its clearly found that the hospital produced evidence of having complied with the conditions of the exemption notification. He categorically observed that the records submitted by the hospital bore testimony to the fact that they had planned and endeavoured to provide the prescribed outdoor and indoor treatment to those who had approached them. It appears from the orders that whatever records provided by the hospital were examined and the statements given by the hospital authorities were also considered and the evidentiary value of all these materials was duly assessed by the Commissioner. We would have appreciated, if the appellant had questioned the basis of such findings in these appeals. No such challenge is forthcoming. In favour of assessee
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Corporate Laws
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2013 (2) TMI 393
Alteration in Articles of Association - Respondent No. 3-association was granted license under section 25 and as per license condition, no alteration could be made in Articles of Association unless alteration had been approved by Central Government - Alteration made to Articles of Association of respondent had been approved but according to petitioner-members their representation was not considered - Petitioner sought for quashing of approval and mandamus to grant fair hearing to petitioner - petitioners were called upon to explain the delay and laches in approaching the Court - Held that:- Even if the petitioners have accepted by participating in elections prior to filing of the writ petition, still, the delay and laches of ten months will not stand in their way to legitimately question the altered AOA being in contravention of provisions of the Companies Act, 1956, as section 9 mandates that the Act overrides the Memorandum, Articles, etc. to the extent they being repugnant to the provisions of the Act. So, respondent's plea of delay, laches and acquiescence is repelled. As Petitioners' representation was not considered while granting impugned approval it is deemed appropriate to direct second respondent to provide a post decisional hearing to petitioners or their authorized representative on their representation within a period of six to eight weeks and to pass a speaking order on the aforesaid representation while returning a positive finding as to whether the alterations in Articles of Association impugned are repugnant to sections 255 and 256 and as to whether reliance upon section 263A and section 265 by the third respondent, justifies the impugned approval or not. Such a course is adopted as principles of natural justice mandate hearing and disposal of objection prior to grant of approval in question. A writ Court would refrain to dwell upon the soundness of impugned alterations in Articles of Association by requiring the competent authority to certify compliance of section 9 by effectively meeting the objections of petitioners. If the second respondent comes to a conclusion that the impugned approval is in violation of any provision of the Companies Act, 1956 then the second respondent would be well within its rights to withdraw the impugned approval but only after affording an opportunity of hearing to the third respondent.
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FEMA
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2013 (2) TMI 396
Violation of FERA - Whether process of purchase of tickets of appellant was a commercial arrangement that was legally permissible? - Appellant carries on a travel agency and specialises in booking of tickets for crew members working on ships - assessee contested for suffering from any illegality or material irregularity causing prejudice - Held that:- No such illegality or irregularity has been demonstrated. That apart delayed pronouncement of the order by the Adjudicating Authority was not urged as a ground of challenge before the Tribunal or the High Court both of whom have remained silent on this aspect. Even on the question of prejudice it is find that the contention of assessee appeleant to be more imaginary than real. The argument regarding prejudice is founded on the plea that the appellants could not place some of the documents which they have now placed before this Court for consideration. It is further admitted that no application for permission to produce these documents was filed by them before the Adjudicating Authority no matter they could have done so if they really indeed needed to place reliance on such documents. The hearing had been concluded by the Adjudicating Authority in keeping with the requirement of Section 51 and Rule 3 of the Adjudication Rules under FERA thus no irregularity causing prejudice proved. Bountiful Ltd. was a paper company and its financial control lay in their hands - clear violation of the provisions of FERA - Held that:- The Adjudicating Authority has noticed and relied upon incriminating circumstances like instructions issued by appellant Telestar to Bountiful to remit an amount of ₹ 4,74,033/- to M/s Aarnav Shipping Company towards repairs of MV Rizcun Trader, a ship owned by one of their principals M/s United Ship Management, Hongkong. Similarly a payment of US$ 12500/- made from Bountiful Account to Mustaq Ali Najumden is also evidenced and was made on the instructions of appellant-Shri Rajesh Desai, which the latter explained to be kickbacks paid to overseas shipping company for giving ticketing business to Telestar. Suffice it to say that there may be sufficient evidence on record for the Adjudicating Authority and the Tribunal to hold that the appellants were indeed guilty of violating the provisions of FERA that called for imposition of suitable penalty against them. It was not the case of the appellants that the findings were unsupported by any evidence nor was it their case that the statements made by the appellants were un-corroborated by any independent evidence documentary or otherwise. In the circumstances, therefore, no reason to interfere with the concurrent findings of fact on the question whether Bountiful was or was not a paper company controlled by the appellants from India. Non granting of opportunity to cross examine the witness - violating the principles of natural justice - Held that:- Adjudicating Authority has mainly relied upon the statements of the appellants and the documents seized in the course of the search of their premises. But, there is no dispute that apart from what was seized from the business premises of the appellants the Adjudicating Authority also placed reliance upon documents produced by Miss Anita Chotrani and Mr. Raut. These documents were, it is admitted disclosed to the appellants who were permitted to inspect the same. The production of the documents duly confronted to the appellants was in the nature of production in terms of Section 139 of the Evidence Act, where the witness producing the documents is not subjected to cross examination. Such being the case, the refusal of the Adjudicating Authority to permit cross examination of the witnesses producing the documents cannot even on the principles of Evidence Act be found fault with. At any rate, the disclosure of the documents to the appellants and the opportunity given to them to rebut and explain the same was a substantial compliance with the principles of natural justice. That being so, there was and could be no prejudice to the appellants nor was any demonstrated by the appellants before us or before the Courts below. The third limb of the case of the appellants also in that view fails and is rejected. The Adjudicating Authority had imposed a higher penalty & the Tribunal has already given relief by reducing the same by 50%. Keeping in view the nature of the violations and the means adopted by the respondent to do that, no room for any further leniency. These appeals fail and are, hereby, dismissed with costs assessed at ₹ 50,000/- in each appeal to be deposited within two months with the SCBA Lawyers’ Welfare Fund.
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Service Tax
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2013 (2) TMI 411
Penalty under Section 76 of the Finance Act 1994 - Held that:- As decided in Adecco Flexione Workforce Solutions Ltd case [2011 (9) TMI 114 - KARNATAKA HIGH COURT] where assessee has paid both the service tax and interest for delayed payments before issue of show-cause notice under the Act. Sub-sec. (3) of Section 73 of the Finance Act, 1994 categorically states, after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under sub-sec. (1) in respect of the amount so paid. Therefore, authorities have no authority to initiate proceedings for recovery of penalty under Section 76 of the Act - appeal in favour of assessee.
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2013 (2) TMI 410
Maintenance or Repair Service – Whether retreading old and used tyres falls under the category of “Maintenance or Repair Service” or manufacture – Assessee is in the business of retreading old and used tyres – Paid VAT on material used in connection with retreading of the tyres – Claims that it is manufacture and if it is service he is eligible for Notification no. 12/2003 – Held that:- Mere payment of VAT does not make eligible for the benefit of Notification No. 12/03 – Prima facie retreading activity will not amount to manufacture – However benefit of Notification No. 12/03 may be available in view of the decision of the Tribunal in the case of Chakita Ranjini Udyam – Decided partly in favour the assessee.
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2013 (2) TMI 409
Treatment of TDS – Whether service Tax is leviable on gross amount charged inclusive of TDS – Assessee received Technical Consultancy Service from various service providers, who were not having their office in India – Assessee had paid the Service tax on the value of service charges paid after deducting TDS – Held that:- Assessee agreed to pay to service provider GBP 370,000, this sum being net of all withholding taxes in India. Whether the assessee pay tax or not, still the foreign service provider is entitled for GBP 370,000 in full. Tax if any paid by the assessee would have to be borne by him and the same cannot be passed on to the foreign party. Thus the gross amount charged by the service provider cannot be treated as inclusive of TDS – Further as per Rule 7 of Service Tax (Determination of Value) Rules, 2006, actual consideration to be the value of taxable service provided from outside India. In the instant case, the gross amount charged by foreign party is only 370,000 GBP, which is not inclusive of TDS – Therefore TDS value need not to be included in the taxable value – In favour of assessee. There was no charging section for levy of Service tax on the service rendered by foreign national to a person in India prior to the insertion of Section 66A of the Act which took place on 18-4-2006 – Show Cause Notice was issued on 2-6-2008, demanding Service tax for a period from July 2005 to March 2008 . Assessee are liable to pay Service tax w.e.f. 18-4-2006 only.Therefore demand cannot be raised as the same is hit by limitation of time under Section 73(1) of the Finance Act, 1994 – In favour of assessee.
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2013 (2) TMI 408
Renting of Immovable Property Services – Whether Electricity Charges and Air conditioning charges collected from the lessee should be included in the taxable value of “Renting of Immovable Property Service” – Assessee was registered for rendering Renting of Immovable Property Services – He had not included the electricity and air conditioning charges in the taxable value while paying Service tax on the charges collected towards ‘Renting of Immovable Property Services’ – Held that:- Electricity Charges collected from their client and paid towards TNEB is nothing but an incidental reimbursable expense. Further incidental reimbursable expense, which the assessee had incurred as a “Pure Agent” need not be included in the taxable value as per Rule 5(2) of the Service Tax (Determination of Value) Rules, 2006. Thus the tax already paid by the appellant is in order. – In favour of assessee. Maintenance & Repair Service – Whether ‘Operation & Maintenance’ Charges collected from the lessee are chargeable to Service tax under “Maintenance & Repair Service” – Assesse not paid any Service tax on ‘Operation & Maintenance charges under ‘Maintenance & Repair Services’ from 16-6-2005 to 31-5-2007 – Held that:- Assessee started paying Service tax from 1-6-2007 onwards on the “Operation & Maintenance Charges”, the day ‘Renting of Immovable Property Service’ became taxable. Demand for payment of Service tax on the amount collected as “Operation & Maintenance Charges” under the heading “Management, Maintenance and Repair Service” was made with effect from 16-6-2005 to 31-5-2007 i.e. before the principal service became taxable, which seems to be irrational. Show Cause Notice in this regard was dated 23-6-2009 invoking the period from 16-6-2005 to 31-5-2007, which is clearly time-barred as none of the ingredients to invoke the extended period under Section 73(1) of the FA. 1994 is present – Demand fails – In favour of assessee.
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Central Excise
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2013 (2) TMI 392
Interest on the amount of duty liability discharged through cenvat account and later on by cash - Held that:- Assessee was a DTA unit prior to December 2007. In this case, they had procured inputs and capital goods by way of import and also from indigenous sources and had taken CENVAT credit of CVD/Central Excise duty paid thereon. Apparently, it was out of such accumulated credit that the respondent made part-payment of duty on the inputs (imported duty-free under Notification No. 52/2003-Cus.) cleared as such to the DTA unit. It is not deniable that such DTA clearances were made on payment of duty of excise which was calculated in terms of the proviso to Section 3(1) of the Central Excise Act. There is no dispute regarding the amount of duty so paid. According to the appellant, it was customs duty which was paid by the respondent on the DTA clearances. The show-cause notices were issued on this premise. It is settled law that what is paid by a 100% EOU on DTA clearances is duty of excise (for the period of dispute in this case) which is calculated as aggregate of duties of customs which would have been leviable if the same goods had been imported at the relevant time. The duties of customs constitute just a measure of the duty of excise to be paid on the DTA clearance. This legal position was settled by this Tribunal and appellate courts long ago. No overriding decision of any competent court to the contra has been cited. Since the issue involved in the case in hand is now squarely covered by the decision of the Tribunal in MATRIX LABORATORIES LTD. case [2012 (11) TMI 726 - CESTAT, BANGALORE] there cannot be any question of interest on the amounts which has been debited by the appellant through cenvat account, when they cleared the inputs to DTA.
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2013 (2) TMI 391
Eligibility to avail Cenvat credit on the duty paid on welding Electrodes used for repairs and maintenance of the machinery in their premises - appellant has taken the point of limitation as there cannot be any intention to evade of Central Excise duty by availing the Cenvat credit of the duty on the ground that the returns were filed before the lower authorities - Held that:- As the question of limitation needs to be addressed by the lower authorities & there is no finding, the matter needs reconsideration by the first appellate authority on the question of limitation. Matter remanded to the first appellate authority for reconsideration, after following the principles of natural justice.
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2013 (2) TMI 390
Goods cleared without issuance of any Central Excise evidences or payment of Central Excise duty - duty demand with equal amount of penalty - assessee contested against invoking period of limitation - Appellant No. 1 contested that they have not manufactured the goods which were supplied to the buyers of Appellant No.2 but had only arranged the goods manufactured by some SSI units who are fully exempted - Held that:- There is no doubt of supply of goods from Appellant No.2 to the buyers of Appellant No.1. and appellant have not submitted any purchase invoice of such unit from where they claimed to have bought the impugned goods. These transactions from SSI units with Appellant No. 2 were not properly accounted for and there is sufficient doubt about said transactions. As find from work orders that Appellant No. 1 had asked for excise invoice but Appellant No. 2 gave nothing for the supply of goods to their buyers. The Department has successfully unearthed the clandestine removal of the goods with intent to evade payment of duty as both the appellants could not produce any evidence for procurement of such goods. This is sufficient ground for involving extended period under Section 11A Pleas of the appellant in respect of penalty have strong ground as Appellant No. 2 have not contravened any provisions of Central excise act and rule made thereunder. They had placed work order to Appellant No. 1, the appellant had liability to pay Central Excise Duty which they had not complied with - reject the appeal of Appellant No 1 and allow the appeal of Appellant No. 2 by waiving the penalty imposed upon them.
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2013 (2) TMI 389
Benefit of Notification No.8/2003-CEN - Non-compliance of pre-deposit orders - Held that:- Unable to go into the merits of the case as the first appellate authority has not decided the issue on merit but has dismissed the same only for non-compliance. since the issue is of interpretation of notification involved, the amount of Rs.2.50 lakhs deposited by the main appellant during the pendency of the proceedings should be enough deposit to hear and dispose the appeal - set aside the impugned order and remand the matter back to first appellate authority to reconsider the appeal without insisting for further deposit from the appellants.
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2013 (2) TMI 388
Mis-declaration of the value of ceramic tiles - dismissal the appeal for non-compliance of pre-deposit of duty liability and 50% of the penalty as ordered vide Stay Order - Held that:- As the appellant has deposited an amount of Rs.30 lakhs during the proceedings before the lower authorities, thus following the decision of Amrut Ceramics case [2012 (10) TMI 588 - CESTAT, AHMEDABAD] wherein considered that the amount deposited by the appellant as enough deposit and remanded the matter back to first appellate authority on the ground that the appellant has deposited the amount more than as directed by this Bench. Thus since the appellant has already deposited more than the amount which is ordered for pre-deposit to hear and dispose the appeal remand the matter back to first appellate authority to reconsider the issue afresh without insisting for any further pre-deposit from the appellant.
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CST, VAT & Sales Tax
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2013 (2) TMI 412
Request of filing revised return rejected - Held that:- Exts.P11 to P14 orders rejecting the request for filing revised returns were passed without taking into account Exts.P9 and P10 objections. Although, the learned Government Pleader contended that the objections, evidenced by Exts.P9 and P10, were filed after Exts.P11 to P14 orders were passed, obviously, the petitioner was unaware of these orders. No order rejecting request for time for filing objections was communicated to the petitioner also. Thus the respondent should re-consider the matter after affording an opportunity of hearing to the petitioner.
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Indian Laws
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2013 (2) TMI 407
Applicability of provisions of RTI ACT - petitioners are school run by the Trust a private unaided one - petitioner contested that respondent No.1 directed the Education Officer (Secondary) to procure information from them and then to supply it to respondent No.5, has done something which is prohibited by RTI Act and also contested about denial of opportunity - Held that:- Perusal of impugned appellate judgment shows that Head Mistress working with petitioners i.e. petitioner No.3 had appeared before respondent No.1 on 20th September 2011 for giving evidence of the action taken on applications of respondent No.5. Hearing took place on 16th October 2011 and the impugned order records that on that day present respondent No.5 (appellant) was only present. This position has not been seriously disputed by respondent No.5. Respondent No.5 has not pointed out that there was any other notice or intimation to the petitioners to remain present for hearing on 16th October 2011. The submission of petitioners that out of documents demanded by respondent No.5 vide his two applications, available documents or information have been already supplied and remaining material is not available with it, therefore, does not find any consideration by respondent No.1. Issue whether copy of approval order sought for on 13th December 2010 by respondent No.5 is available with the petitioners or then, it is available with authorities granting approval i.e. respondent No.2, therefore, need not be looked into by this Court. Similarly, on 28th December 2012, respondent No.5 has demanded total nine documents or information & respondent 5 has stated that the information or documents in relation to serial Nos.1, 2, 3, 7, 8 and 9 are still not received by him. Whether this information or document/s is available with the petitioners or not can also be looked into by respondent No.1 after extending them an opportunity of hearing. It is not necessary for this Court to pronounce on it as petitioners have not been given necessary opportunity of hearing before passing of impugned order.
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