TMI Tax Updates - e-Newsletter
May 4, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
-
Income Tax:
Deduction u/s 80IA - Joint Venture - The legislature have also used the word consortium of such companies, meaning thereby the legislature was aware about the object of formation of consortium and joint ventures. - AT
-
Income Tax:
Revision u/s 263 - pray for stay of operation of order u/s 263 - As the limitation provided u/s. 153(2A) would expire by the time of the appeal is disposed of - stay cannot be granted - AT
-
Income Tax:
Interest u/s 244A - Interest may not be payable on self payment of TDS and refund but where refund arose consequent to the orders of the CIT (A)/ITAT, then interest u/s 244A has to be granted - AT
-
Income Tax:
Transfer pricing adjustment - TNMM method required comparison of net profit margin realized from international transactions or aggregate of international transactions and not comparison of operating margins of the enterprises. - AT
-
Customs:
Customs authorities cannot unilaterally alter the amount of DEPB benefit given by DGFT authorities based on export documents relating to exports already made. - AT
-
Customs:
Penalty U/s 114 - attempt to export of foreign currencies - The expression “attempt” within the meaning of these penal provisions is wide enough - AT
-
Indian Laws:
CONSEQUENCES OF NON-PAYMENT & DELAYED PAYMENT OF SERVICE TAX - Article
-
Service Tax:
Cenvat Credits - Photocopies of receipts issued by IAL for payment towards service tax paid by the appellant does not show the assessable value of the services or its classification. Credit denied - AT
-
Service Tax:
Site formation and clearance services - The amount of 2% to 3% margin retained by the appellant cannot be treated as service charges received from the sub-contractors - Not taxable as BAS - AT
-
Service Tax:
Cenvat Credit on Accessories used in erection of mobile towers on behalf of M/s Tata Teleservices Ltd. - prima facie credit is not allowable - No stay - pre-deposit ordered - AT
-
Central Excise:
Utilisation of credit of basic excise duty for discharge of Education Cess and Secondary and Higher Education Cess - decided in favor of assessee - AT
Articles
Circulars / Instructions / Orders
News
Case Laws:
-
Income Tax
-
2013 (5) TMI 88
Eligibility for deduction u/s.80IB on the disallowance made u/s.40(a)(ia) - ITAT allowed the claim - Held that:- AO has wrongly disallowed the deduction u/s 80-IB stating that deduction u/s 80-IB was not allowable as the disallowance was made on technical ground because this does not form part of the business profits as the profit has already been determined as per P&L Account. Tribunal committed no error in considering assessee eligible for deduction u/s 80-IB on the profits worked out after including therein the disallowance of Rs.24,45,367/- made by the AO u/s 40(a)(ia) - Against revenue.
-
2013 (5) TMI 87
Deduction u/s 80IA - Joint Venture - Person u/s 2(31) - nature of works contract - as per the revenue the assessee is required to enter into an agreement with the Central Govt. or State Government or a local authority or any other statutory body for i) developing or ii) operating and maintaining or iii) developing, operating and maintaining a new infrastructure facility, which the assessee has not substantiated by furnishing a copy of the agreement entered despite affording several opportunities to the assessee. Held that:- There is no dispute with regard to the nature of business or the activities undertaken by the assessees. The dispute is only with regard to the identity of a person to whom this benefit of deduction u/s 80IA(4) can be allowed. The legislature have also used the word consortium of such companies, meaning thereby the legislature was aware about the object of formation of consortium and joint ventures. Generally the joint ventures or consortiums are formed to obtain a contract from the Government body for its execution by its constituents. If the constituents do not want to execute the work, there was no need to form a consortium. Therefore, mere formation of consortium for obtaining a contract should not debar the enterprises who in fact carried on the aforesaid classified business from claiming the deduction or exemption u/s 80IA(4).
-
2013 (5) TMI 80
Eligibility of deduction u/s 80IA(4) – Nature of contract - CIT(A) considered it as a contract only for short term improvements and routine maintenance & the assessee had only entered into agreement with M/s. Nagarjun Construction Co. Ltd. (NCC) and not with the Government as required in the section respectively. Held that - After considering nature of works carried out by the assessee, the details of expenditures incurred by the assessee and in the light of amendments in section 80IA R.W. judgement of Bajaj Tempo vs. CIT [1992 (4) TMI 4] held that a provision in a taxiing statute granting incentives for promoting growth and development should be construed liberally. As the case of the assessee covers by the conditions laid down in section 80IA(4)(i), (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining, therefore, the claim of deduction under section 80IA(4) is allowable in respect of Panipat-Jalandhar Project. As in relation to Sagar- Beena project a supplementary agreement of Nagarjuna Construction Company (NCC) Limited between NCC Limited and M/s. PNC Construction Company Limited, the assessee, wherein it is stated that both the parties have formed a JV with the sole purpose to submit a joint bid for Sagar- Beena Road Project. M/s. PNC Construction Co. Limited was offered for the entire works of joint venture and shall be liable for all taxes including income tax solely liable to government of Madhya Pradesh. The agreement with Government of Madhya Pradesh and NCC-PNC joint venture accepted the concept of Joint Venture. Thus the CIT(A) failed to consider the relevant provision of section 80IA(4)(i)(a) which provides that the prescribed infrastructure project in section 80IA(4)(i) is owned by company registered in India or by a consortium of such companies & considered only clause 80IA(4)(i)(b) of the Act without considering section 80IA(4)(i)(a.) As decided in ACIT vs. JSR Constructions (P) Ltd, [2013 (4) TMI 512 - ITAT BANGALORE], and DCIT vs. M/s. Transstroy (India) Limited, [2013 (5) TMI 87 - ITAT VISAKHAPATNAM],the assessee has satisfied the conditions laid down in section 80IA(4)(i)(a)(b) & entitled for deduction under section 80IA(4). Disallowance claim of sign board expenses – Held that - Merely failure to file the relevant vouchers as required by the A.O. cannot be the basis for making disallowance unless it is found that the expenditures were not incurred wholly and exclusively for the purposes of business. Thus delete the addition. Disallowance of temporary building structure expenditure – Held that - The A.O. made the disallowance without pointing out any specific expenditure which was incurred other than for the purposes of business. Thus delete the adhoc addition. Disallowance of Repair & Machinery expenses – Held that – A.O. made the addition on presumption basis. Thus delete the adhoc addition as the expenditures were incurred for the purposes of business. - Other grounds are general in nature, require no independent finding.
-
2013 (5) TMI 79
Provident Fund and ESI contribution - Allowability of deduction u/s 36(1)(5a) read with S. 2(24)(x) & S. 43(B) - Deduction of provision of gratuity - Grace period u/s.43B - Regarding Employees contribution to P.F. & E.S.I. - Held that:- The Hon'ble Delhi High Court in the case of CIT-vs- P M Electronics (2008 (11) TMI 3 - DELHI HIGH COURT) following the decision of the Hon'ble Supreme Court in the case of Vinay Cement (2007 (3) TMI 346 - Supreme Court of India ), has clearly laid down that no addition under section 36(1)(va) r.w.s. 2(24)(x) can be made in respect of employers/employees' contribution towards the provident fund payment and ESI payment. If the assessee makes the payment much before the due date before filing of the income-tax return under section 139(1) - We confirm the order of the CIT(A) on these two grounds - The Revenue's appeal stand dismissed. Regarding claim of Provision of Gratuity :- Rule 46A is applicable to additional evidence not to supporting evidence. The assessee filed before AO details of employees giving names, designation, identity and year of retirement in respect of all the employees for which gratuity provisions were made - The computation of details in respect of about 17 employees were enclosed for test check. This clearly denotes that the evidence/details of all 70 employees was filed but how the amount of provisions were calculated, were filed for only 17 employees. The detail calculation in respect of each employees in our opinion is supporting of evidence to the amount of gratuity provided in respect of each employee - No interference is called for in the order of the CIT(A) and we confirm the order of the CIT(A) deleting the addition - Revenue's Appeal is dismissed. Respectfully following our decision in respect of ground nos. 1 and 3 in ITA No.1251/Kol/2010 - We dismiss both the grounds taken in ITA No.1252/Kol/2010 - This appeal of the Revenue is also dismissed - The both the appeals filed by the Revenue are dismissed
-
2013 (5) TMI 78
Revision u/s 263 - pray for stay of operation of order u/s 263 - Held that:- A perusal of the decision of the Hon'ble Andhra Pradesh High Court in the case of Khalid Mehdi Khan (1977 (1) TMI 26 - ANDHRA PRADESH High Court) clearly shows that while granting the stay or any other inter-locutary order, the tribunal shall have to be keep in mind the period of limitation prescribed u/s. 153(2A) and pass order in light of the same. Admittedly, the limitation in the present case expires on 31-3-03. The appeal of the assessee is posted for hearing on 28-5-2013 As the limitation provided u/s. 153(2A) would expire by the time of the appeal is disposed of - stay cannot be granted to the assessee against the operation of the order passed u/s. 263 of the Act. On this ground itself the stay petition filed by the assessee stands dismissed.
-
2013 (5) TMI 77
Disallowance of interest attributable to interest free loan provided - Held that:- As per Bombay High Court decision in the case of Reliance Utility Power Ltd (2009 (1) TMI 4 - HIGH COURT BOMBAY ),it was held that if there be interest-free funds available to an assessee sufficient to meet its investment and at the same time the assessee had raised the loan, it can be presumed that the investments were from the interest-free funds available - The High Court observed that presumption would arise in case of interest free fund available with investment would be out of interest free fund was available with the company Appellant has given Rs. 1.72 crore as advance interest free and not charged interest on it, the AO had not established the nexus between the interest borrowing fund utilized for interest free advances in the assessment order - If the interest free funds were sufficient to meet the investment in this case also the interest free funds are available and the Bombay High Court proposition in above case is squarely applicable in the case of interest free advances - Thus we allow the appeal of the assessee
-
2013 (5) TMI 76
Penalty u/s. 271(1)(C) - Long Term Capital Gain was calculated - Disallowance of interest expenses - Conealing the income and furnishing inaccurate particulars of income - Held that:- Ld. A.O. specifically held in penalty order as the assessee has furnished "inaccurate of his income and thereby concealing his income to the extent of Rs. 5,47,114/-". The assessee had not filed any reply before the A.O. and the A.O. has not violated the principle of natural justice. There was not ground of appeal before the CIT(A) of violation of principle of natural justice - Thus, the CIT(A) was right in confirming the order - However, in the interest of justice, the assessee is allowed one more opportunity to explain the reasons for not imposing penalty by the A.O - We set aside the order of the A.O - The assessee is directed to make full compliance of the notice of the A.O.
-
2013 (5) TMI 75
Sale of lands - Business income or capital gains - adventure in the nature of trade - Held that:- It is a fact that sale proceeds of plots of land situated in Municipal Area have been taxed under the head Short Term capital gains by the AO. If the said transaction was not assessed as an adventure in nature of business how the sale of agriculture land can be assessed as business income. It is also a fact that income from the plots in question has been assessed as agricultural income by the AO for the AY under consideration. Similarly, the factum that pieces of land were shown as agricultural land in Revenue records even after the sale has not been challenged by the AO. Condonation of delay - held that:- AO has not filed any affidavit along with the condonation-application, though the note sheet talks of filing of an affidavit if necessary, as stated at paragraph No.5 of our order - In our opinion sufficiency/reasonableness of cause is totally missing in the case under consideration - Decided against the revenue.
-
2013 (5) TMI 74
Exemption u/s 54 - Purchase of 2 acres of land out of sale consideration and claimed exemption U/s 54 - No completion of construction within 3 years s the possession of the land could not be delivered by the developer. - Held that:- provision contained u/s 54 including the proviso are parimateria with section 54F of the Act. The proviso to section 54 also lays down that if the amount of capital gain is not utilized towards construction of residential house within a period of 3 years from the date of transfer of original asset, then, it will be charged to capital gain u/s 45 of the Act in the year in which the period of three years from the date of transfer of the original asset expires. I The department has not disputed the fact that the assessee has invested ₹ 84.00 lakh in purchase of land towards construction of the house, which could not be constructed within the stipulated period of 3 years as the possession of the land could not be delivered by the developer. In these circumstances, the assessee's claim of exemption u/s 54 of the Act could not be denied in view of proviso to section 54 of the Act - Appeal of the assessee is allowed
-
2013 (5) TMI 73
Appeal by assessee company who is a resident of Singapore, contesting the action of AO and the DRP on the issue of holding that assessee has a permanent establishment in India and without prejudice the profits attributable to the PE in India were determined arbitrarily by estimating the business income at 90% of the business profits and also non consideration of details placed on record, levy of interest etc. in its six grounds of appeal raised. Held that - As seen from the orders placed on record, the first objection with reference to possible bias on the part of the jurisdictional Commissioner cannot be rejected outright, as the jurisdictional Commissioner is part of the DRP which rejected assessee objections. We set aside the orders of AO and DRP and restore the entire assessment to the file of AO, leaving the issues contested now open for examination at a later time, if required. Since the entire assessment was restored to the file of AO, there is no need to discuss the issue of PE and attribution of profits now, which may have to be considered when it arises in the re-assessment procedure.
-
2013 (5) TMI 72
Benefit under article 8 of DTAA –Related to freight income, Slot arrangements, Definition of operation of ships u/s 115VB, permanent establishment in India & remuneration paid to agent - Held that – Matter remanded back to the Tribunal for fresh consideration in the light of the decision of this Court in the matter of DIT (International Taxation) v. Balaji Shipping UK Ltd. [2012 (8) TMI 681 - BOMBAY HIGH COURT]
-
2013 (5) TMI 71
Non granting of interest u/s 244A consequent to the refund - Held that – where assessee voluntarily deducted tax and claimed refund directly, grant of interest under section 244A may not arise and the Board Circulars on this issue are applicable, whereas in a case where AO demand the tax / interest consequent to an order under section 195/201 or 201A, and the refund arose consequent to the orders of the CIT (A)/ITAT, then interest under section 244A has to be granted. Relying in the decisions of Tata Chemicals Ltd. v. Dy. CIT [2007 6 TMI 300 Mumbai] and the decision of the Godrej Industries Ltd. v. Dy. CIT [2006 1 TMI 469 Mumbai] assessee is entitled to interest u/s 244A. - Decided in favor of assessee.
-
2013 (5) TMI 70
Transfer pricing adjustment -assessee had international transactions with 10 associate enterprises (AEs) which included import of raw material – The AO therefore, following report of TPO and after giving opportunity of hearing to the assessee made adjustment on account of purchases from associate enterprises. Held that - The Tribunal also referred to the decision of the Tribunal in case of Addl. CIT v. Tej Diam [2010 (1) TMI 806 – ITAT, Mumbai] in which it has been held that TNMM method required comparison of net profit margin realized from international transactions or aggregate of international transactions and not comparison of operating margins of the enterprises. The Tribunal therefore restored the issue to the file of AO for fresh adjudication in accordance with law. The facts this year admittedly are identical. Therefore we set aside the order of CIT(A) and restore the matter back to the file of AO for passing a fresh order. Allowability of claim of bad debt - assessee had not made claim in the return of income but the claim was made during the course of assessment proceedings – Held that - Since the factual aspects regarding fulfillment of condition for allowability of bad debt claim have not been examined, we restore the issue to the file of AO for adjudicating the same after examination of records and after allowing opportunity of hearing to the assessee.
-
Customs
-
2013 (5) TMI 69
Rejection of FOB value - Incorrect ‘FOB’ value - confiscation. - The dispute relates to arriving at the ‘FOB value’ from the ‘CIF’/CIP’ value for the purpose of claiming DEPB credit. - Demand of differential duty U/s 28(1) of the Customs Act, 1962 along with interest U/s 28AB of the Customs Act - Penalties on the assessee-company and its three officials - Held that:- As clarified by the Board in 1998 itself, the FOB value will not include the cost of international transportation beyond the Indian port. (The clarification issued in the context of export made through Indian Land Customs Station shall be applicable to export by sea and air also). The terms like FOB, CIF, CIP are well known “Incoterms” (International commercial terms) as duly noted by the Commissioner in his order The demand appears to be on goods so imported using such DEPB scrips. However, nowhere any evidence relating to import of any goods, relevant bills of entry, value of the goods imported, the duty short levied on such goods, etc., are relied upon. -If the scrips have been shown to have been used to clear duty free the imported goods, then duty to the said extent short levied shall be recoverable under Section 28(1) of the Customs Act subject to fulfilment of conditions mentioned therein. The FOB value declared by the assessee-company in the shipping bills were not correctly declared inasmuch as amounts paid under heads of FSC, SCC, etc., were not deducted from CIF prices. However, this appears to be on the basis of industry practice as duly noted by the Commissioner. The Customs authorities are competent to issue show-cause notice without challenging the assessment in the shipping bills by issue of show-cause notice as provided under the law - However, the Customs authorities cannot unilaterally alter the amount of DEPB benefit given by DGFT authorities based on export documents relating to exports already made. Such a modification can be done only by referring the matter to the DGFT authorities either to cancel or modify the DEPB scrips - Only when DEPB scrips have been utilised for duty free clearance of imported goods, the Customs authorities can demand under Section 28(1) of the Act, duty short levied/non-levied on such imported goods giving reference to such imports - In the facts and circumstances of the case, there is no justification of imposition of penalties on any of the appellants - the impugned order is set aside and all the appeals are allowed with consequential relief as per law.
-
2013 (5) TMI 68
Penalty U/s 114 of the Customs Act, 1962 - Appellant in the attempt to export of foreign currencies of various denominations, Travellers cheques and Indian currency to Singapore by one Sri Nallaian Pargunam @ Joseph and his wife - Held that:- The expression “attempt” within the meaning of these penal provisions is wide enough to take in its fold any one or series of acts committed, beyond the stage of preparation in moving the contraband goods deliberately to the place of embarkation, such act or acts being reasonably proximate to the completion of the unlawful export. Evidence Act does not insist on absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found - That is why under Section 3 of the Evidence Act, a fact is said to be ‘proved’ when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists The case in hand could not make the appellant a stranger to the offence committed and the appellant proved himself to be familiar to facts and circumstances of the case, he subjected himself to penal proceedings of the law. His involvement in the offence committed being so glaring and not contradicted leading cogent evidence, he was not innocent to claim leniency. Making an overall assessment of facts and circumstances and taking into consideration of the magnitude of his involvement and evidence as well as the role played, it is considered proper to reduce the penalty - Appeal is partly allowed to such extent.
-
Service Tax
-
2013 (5) TMI 84
Unauthorized Cenvat Credits - Allegations of no documents as specified in Rule 9(1) of Cenvat Credit Rules, 2004 submitted - confirmation of tax demand along with interest& penalty equal to this amount - Held that:- As per the importance of insisting on a document prescribed under Rule 9(1) of the Cenvat Credit Rules, 2004 for allowing credit if invoices were being issued by IAL the above issues would have got settled in the normal course. If IAL did not want to follow the procedure of issuing invoices for impugned services rendered by them and showing the service tax payable, IAL is only ducking the above queries which are fundamental for levying service tax on the impugned activity and in allowing Cenvat credit as claimed by appellant. Photocopies of receipts issued by IAL for payment towards service tax paid by the appellant does not show the assessable value of the services or its classification. It is not a case of just ascertaining whether the tax amount has been deposited in the treasury by looking at the bank statements and then allowing credit to any person who stakes claim for credit of the tax so deposited. Thus in view of the provisions in Rule 9(1) of Cenvat Credit Rules, 2004, the appellant is not entitled to the credit in question. Whether extended period of time can be invoked for demanding the credits improperly taken - Held that:- This is not a case of bona fide mistake. It is an attempt to avoid basic issues relevant for levy of service tax and taking of credit - the arguments are not maintainable as credits are availed without disclosing to Revenue that the credits are being taken though the Rules are not complied with - extended period of time can be invoked in such cases for demanding credits taken. Consequently the penalty imposed is also maintainable. Against assessee.
-
2013 (5) TMI 83
Period of limitation - can an appeal came after 3 years, one month and 12 days, be considered to be time barred - Held that:- Carefully perusing the judgments Raja Kumari (2004 (11) TMI 515 - SUPREME COURT) with Section 37C of the 1944 Act, Section 27 of the General Clauses Act and Section 144 of the Indian Evidence Act it can safely be said that sending the order at correct address by registered post is a sufficient compliance of Section 37C of the 1944 Act. It is for the assesse to rebut the presumption of service by cogent evidence that in fact order was never served upon him. In the present matter, assessee failed to discharge his burden and sending the order by registered post at the correct address is sufficient compliance. Against assessee.
-
2013 (5) TMI 82
Site formation and clearance services - appellant has received orders for providing services from Andhra Pradesh Government had given the same contracts on “back to back” basis to the sub-contractors retaining margins of commission of 2% to 3% and the balance given to the subcontractors who have actually undertaken the work - service tax demand under ‘Business Auxiliary Service’ on the 2% to 3% margin retained by the appellant - Held that:- The amount of 2% to 3% margin retained by the appellant cannot be treated as service charges received from the sub-contractors and separately taxed under ‘Business Auxiliary Service’ in the light of the submissions that the entire amount received from Andhra Pradesh Government has suffered service tax at their hands under the head “site formation and clearance”. There shall be waiver of pre-deposit of dues as per the impugned order and stay of recovery thereof till the disposal of the appeal.
-
2013 (5) TMI 81
Cenvat Credit on Accessories used in erection of mobile towers on behalf of M/s Tata Teleservices Ltd. - Inputs / input service - held that:- It is not disputed that M/s Vector Technologies have no connection whatsoever with the appellant company. There is nothing on record to suggest that Tata Teleservices, Mumbai placed purchase order for feeder cable with the condition that they should be supplied with cable assembly accessories only through Vector Technologies. - prima facie, it cannot be said that supply of cable assembly accessories made by the appellant to M/s Vector Technologies amount to input service with respect to the feeder cable manufactured and supplied by the appellant to M/s Tata Tele Services, Mumbai. - No stay - pre-deposit ordered.
-
Central Excise
-
2013 (5) TMI 66
Admissibility of Cenvat credit - GTA services – used for outward transportation of their final products from the factory to the premises of their customers – Held that - The Hon’ble High Court, in the case of Commissioner Vs. ABB Ltd. [2011 (3) TMI 248] held that CENVAT credit was admissible to the manufacturer of final products in respect of GTA service used for outward transportation of such products from the place of removal to the customers premises for a period prior to 01/04/2008. The period of dispute in the instant case is also prior to 01/04/2008. Appeal is allowed.
-
2013 (5) TMI 65
Confiscation of unaccounted goods/raw material - Accordingly imposition of duty, penalty interest on those goods - Held that - there being no dispute that goods being sought to be confiscated is raw material, the ratio laid down by the Hon’ble High Court of Punjab & Haryana and division bench of this Tribunal in case of Annapurna Impex Pvt. Ltd. [2009 (8) TMI 200] would clearly apply in this case which is in favour of the appellant. - Demand set aside.
-
2013 (5) TMI 64
Manufacture of goods - Bagasse arise - Appellant having not maintained separate accounts for the bagasse cleared by them and availed Cenvat credit on common inputs, capital goods and common input services – Held that The issue is no more res-integra as Hon’ble High Court of Allahabad in the case of Balrampur Chini Mills Ltd. & Ors. Vs. UOI [2013 (1) TMI – 525] has settled the issue as is in the case before us and accordingly, we find that the impugned orders are not sustainable and are liable to be set aside and the appeals are allowed with consequential relief, if any.
-
2013 (5) TMI 63
Utilisation of credit of basic excise duty for discharge of Education Cess and Secondary and Higher Education Cess - Held that - in view of judgment of the Honble High Court of Gujarat in the case of Commissioner, Central Excise, Customs & Service Tax, VAPI Versus M/S Madura Industries Textiles [2013 (1) TMI 352] demand set aside - appeal allowed - decided in favor of assessee.
-
2013 (5) TMI 62
Rebate of duty of excise on the goods exported - None appears on behalf of the respondent - Held that - Appeal does not lie before the Tribunal as per the provisions of Section 35B, appeal is dismissed as infructuous or non-maintainable.
-
CST, VAT & Sales Tax
-
2013 (5) TMI 86
Penalty was imposed - According to assessee the Ext.P3 penalty order was passed in relation to the assessment year 2010-11 and the same was issued without SCN or opportunity of hearing, this writ petition was filed. - Held that:- A reading of Ext.P2, the notice, shows that the turnover quantified therein was Rs.1,16,30,000/- and the penalty proposed was Rs.9,39,704/-. This itself therefore proves that SCN referred to in Ext.P3 penalty order is not Ext.P2 SCN. In such circumstances, I am inclined to accept the case of the petitioner that Ext.P3 penalty order was not preceded by a SCN. For that reason, I direct that Ext.P3, the order now issued be treated as notice issued to the petitioner u/s 67 of the KVAT Act in relation to the assessment year 2010-11. It will be open to the petitioner to file his objection to Ext.P3 within 3 weeks from today.
-
2013 (5) TMI 85
Revision Assessment - Field Audit conducted by the respondent in the petitioner's business premises based in which revision proceedings initiated – Opportunity of being heard is not provided to petitioner. Held that:- It is seen that when there is an effective alternative remedy of appeal is available against the impugned order, the present writ petition is not maintainable. In the interest of justice, if one more opportunity is given, the petitioner may put forth his plea in his objections, whereupon the respondent shall have every right to consider the same and decide the matter in accordance with law. Therefore, to meet the ends of justice, this writ petition is disposed of, with a direction to the petitioner to file their objections to the revision notice within a period of 2 weeks from the date of receipt of a copy of this order, and if such objections are filed, the respondent shall proceed further in the matter and pass appropriate orders on merits and in accordance with law, after affording an opportunity of hearing to the petitioner, within a period of four weeks from the date of receipt of such objections.
-
Indian Laws
-
2013 (5) TMI 67
Complaint was filed by appellant under Sections 36-A, 36B, 36D and 37 of the MRTP Act. – compensation application - Appellant availed the services of respondent bank - said service was of sub-standard quality and that the respondents have adopted unfair and deceptive practices while rendering the same and had also coercively recovered Export Outstanding Charges ('XOS charges' in short) and it had neglected and failed to return original title deeds of the properties entrusted to the respondent bank as a collateral security in spite of having been fully paid all the debts given to the complainant. It is to be seen that the complainant used to export garments through the Apparel Export Promotion Council and several export bills were sent to the foreign buyers through the bank for "collection only". In respect of these "collections only" export bills, the bank used to levy xos charge per outstanding bill per quarter. These charges were levied since these were required to be reported by the bank to RBI every quarter by way of 'XOS statements' get incentives/benefits on the export proceeds. In fact, it was only in August 1992 that the complainant had shifted its banking operation to Vysya Bank. However, packing credit limit was paid on 05.08.1993, but the outstanding in the account of the complainant on that date was ₹ 1,40,77,644/-. According to the complainant though the loan credit of the respondent bank was liquefied in 1993 and though the bank guarantee also expired on 30.10.1994, but the collaterals were not returned. Held that - We have deliberately stated the facts above along with the dates of the correspondence which went on between the parties stretching maximum in favour of the complainant. We do not find any justification as to how the non-return of collaterals could be complained of only in 2007 when admittedly the collateral securities were refused for the first time in somewhere in the year 1993 and when the bank ultimately returned the collaterals in March 2001. As regards the non-refund of XOS charges, we have already found that the complainant has not shown any rule under which he was entitled to the refund, thus there is a complete justification on the part of the respondent bank not to return collaterals. There is no question of limitation as any action in that behalf could not be possible. In the result, we come to the conclusion that the complaint as well as Compensation Application under Section 12-B are not maintainable. They are dismissed.
|
