TMI Tax Updates - e-Newsletter
May 9, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Highlights / Catch Notes
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Income Tax:
Computation of income as NIL - when the assessee society has applied more than 85% of its total receipts for the objects and charitable purposes of the society, exemption u/s 11 allowed. - AT
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Income Tax:
Liability to deduct TDS - Section 194C of the Act exempts payments to one entity from operation of it if it is below a certain amount per year. - AT
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Corporate Law:
Application for Restoration of the name of company by the creditors - order for restoration of name sustained. - HC
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Service Tax:
Once they have admitted their liability of service tax, although the liability of service tax was not leviable, the same should be paid along with interest - AT
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Service Tax:
Disputed issue relating to inclusion of cost of materials used for providing photographic services – no suppression can be attributed to the appellant so as to justifiably invoked longer period of limitation. - AT
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2013 (5) TMI 200
Contribution to provident fund - addition made by AO under section 43B - CIT(A) deleted the addition - assessee is a cooperative society engaged in supply of sugar cane of it's members to sugar mills and trading of fertilizer with members etc. - Held that:- Contrition to PF to permanent staff in this case goes to UP Cane Federation Trust, Lucknow which is a recognized trust headed by Cane Commissioner, UP Government constituted under the UP Cooperative Societies Act, 1965 and controlled by Cooperative Cane Union Federation and Employees PF Trust Funds Rules, 1979 through a Board of Trustees. Thus, agreeing with CIT(A) that it is a special case of its own as the assessee has a separate regulation of their own for administration of PF concerned and thus provisions of section 43B are not applicable. - the PF to permanent seasonal staff was governed by the State Government Rules. The trust created for the purpose is duly registered under the I.T. Act. By the Rules itself, the assessee was permitted to convert such contributions into members deposits and pay the stipulated interest thereon. Such interest payments having been made as per the State Government Rules are not covered u/s. 43B. Against revenue.
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2013 (5) TMI 199
Transfer pricing adjustment - comparable transactions - assessee contended that DRP erred in considering Rites Limited and WAPCOS Limited as engaged in engineering services and high end consultancy, whereas the assessee company, as available from its business profile, employs only non-technical persons and not technical people - Held that:- As decided in DCIT, Circle 17(1), New Delhi Versus MCI Com India (P.) Ltd [2012 (10) TMI 790 - ITAT DELHI] Rites Ltd. and WAPCOS Ltd. were excluded as comparables, holding that marketing support services cannot be compared with turnkey engineering services - Rites Ltd. and WAPCOS Ltd. are engineering companies, providing end-to-end solutions, whereas 'MCI Com.' provided marketing support services to its parent company. The services of 'MCI Com' qua Rites Ltd. and WAPCOS Ltd. were not found functionally comparable. On this basis 'MCI Com' case will squarely applicable to the facts of the present assessee, i.e., of providing sourcing and procurement services and not at all comparable with Rites Ltd. and WAPCOS Ltd. No decision to the contrary has been brought to our notice. In favour of assessee.
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2013 (5) TMI 198
Computation of income as NIL - whether CIT(A) erred in directing to compute the income at NIL ignoring that the assessment was made at returned income as claim, u/s 11 of IT. Act, 1961 not made in return, could not be allowed by AO without filing of revised return by the assessee? - Held that:- CIT(A) did not allow any new exemption or deduction to the assessee but had simply corrected the assessment order with an observation that the assessee society was exempted u/s 11 of the Act, therefore the assessment was to be made at nil income and the CIT(A) directed the AO to finalize the assessment accordingly as the assessee society has been granted registration u/s 12A and when the assessee society has applied more than 85% of its total receipts for the objects and charitable purposes of the society, then certainly the assessee society was entitled for exemption u/s 11. No infirmity, ambiguity or any other valid reason to interfere with the impugned order. Against revenue.
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2013 (5) TMI 197
Addition on accommodation entries - search and seizure action at the business and residential premises of Sh. S.K. Gupta, along with various concerns in which he and his family members were interested - CIT deleted the addition - Held that:- No infirmity in the order of CIT(A) as the main basis of the AO for making the disallowance is the statement of Shri S.K. Gupta. However, CIT(A) has recorded the finding that in his statement Shri S.K. Gupta has never mentioned that the bills issued by M/s ERA Advertising and Marketing Co.Pvt.Ltd. and M/s Hamara Samay T.V. News Network Pvt.Ltd. to Ajay Home Products Pvt.Ltd., i.e., the assessee, were in the nature of accommodation entries. The assessee has filed confirmation certificate from M/s Hamara Samay T.V. News Network Pvt.Ltd. in which the details of telecast of the advertisement of the appellant were given. The assessee had filed the confirmation of both the parties, copy of CD of the advertisement film, copy of the bills of advertisement, all the payments were made by cheque, copy of bank statement and complete vouchers relating to advertisement expenses were furnished. It was also stated by the learned counsel that on these payments of advertisement expenses, TDS was deducted at source and moreover, service tax was also paid. The CD containing the text of advertisement was also produced. Considering these facts, the CIT(A) rightly held that the assessee has discharged its onus of proving that the payment to M/s ERA Advertising and Marketing Co.Pvt.Ltd. and M/s Hamara Samay T.V. News Network Pvt.Ltd. was towards actual advertisement expenses and not accommodation entries. No nfirmity in the order of CIT(A). Revenue's appeal dismissed.
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2013 (5) TMI 196
Liability to deduct TDS - whether the payment made by the assessee to the transporters was in the nature of contractual payment by virtue of inclusive definition of "work" in Expl.III to sec. 194C which includes transportation of goods by any means - disallowance of expenditure by invoking the provisions of sec. 40(a)(ia) - CIT deleted the liability - Held that:- AO has not established the fact that there is existence of contract written or oral & has simply stated that since the assessee has not deducted the tax at source on the impugned payments, this issue is not material. See ACIT vs. Niten Shah (2013 (4) TMI 533 - ITAT AHMEDABAD) & C.I.T (TDS) vs. United Rice Land Ltd. (2008 (5) TMI 142 - PUNJAB AND HARYANA HIGH COURT) wherein held that there was neither any oral or written agreement between the assessee or the transporters for carriage of goods nor has it been proved that any freight charges were paid to them in pursuance of a contract for a specified period. The assessee was not required to deduct tax u/s. 194C from the payments made to the transporters. Also in this case loading and unloading has been done by the persons other than the mule owners who have only carried the goods between the two points and have not loaded and unloaded the same themselves in this regard referring to decision of Bombay Goods Transport Association vs. CBDT (1994 (7) TMI 65 - BOMBAY High Court) wherein held that section 194C does not apply to the Transport Contracts for mere carrying of goods without loading and unloading. We further find that Section 194C of the Act exempts payments to one entity from operation of it if it is below a certain amount per year. In this case Ld. Commissioner of Income Tax (A) has opined that substantial quantum of payment would be below the exemption limit. In favour of assessee.
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2013 (5) TMI 195
Penalty u/s 271(1) (c) - CIT(A) deleted the penalty levy - whether claiming excessive deductions also amount to concealment of income? - Held that:- It is a case of wrong claim because a part of the development expenditure has been allowed by the AO as revenue and remaining major part of the claim has been held as capital expenditure on which depreciation has been allowed to the assessee. Accordingly, CIT(A) rightly held that the assessee has neither concealed its particulars of income nor provided inaccurate particulars of income as far as the claiming of these expenses is concerned. It is clearly a case of claiming certain expenses in a bona fide manner which had been disallowed by AO and AO has not been able to make out a case for imposition of penalty u/s 271(1)(c). See Reliance Petroproducts Pvt. Ltd. (2010 (3) TMI 80 - SUPREME COURT) wherein held that a mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars - Against revenue.
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2013 (5) TMI 194
Unexplained investment - Non-compliance of the notice issued by assessing officer u/s 142(1)(2) of the act - CIT (A) annulled the assessment order passed by the ITO – Held that - However, since the learned CIT(A) had not decided the issue on merit, therefore, we in the interest of justice, deem it proper to restore the issue to his file for adjudicating the issue on merit. Needless to say, he shall give due opportunity of being heard to the assessee and decide the issue as per law.
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2013 (5) TMI 193
Interest u/s 36(1) disallowed - As per the AO The investment in the partnership did not yield any benefit to the assessee, nor any commercial expediency stood explained by him. – The partnership firm was in any case a different taxable entity, having its own income, so that the investment therein could not be regarded as the assessee's business, so as to qualify for deduction u/s.36(1)(iii). - Held that - as such, the inference of the assessee as having utilized the borrowed capital for non business purposes, as made by the A.O., is misconceived and incorrect on facts. That being the case, no case for disallowance of any interest, under the facts and circumstances of the given case, is made out. - In favour of assessee.
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2013 (5) TMI 192
Royalty Expenses – Accrual - matching principle - Only a part of the income was accounted for during the year on the ground that the fee in question relates to two Financial years. Similarly on matching principle, a part of the expense was accounted for proportionately during the year. The assessee paid royalty to its holding company M/s HITJEE @ 20% of the fee received. However as far as expenses on account of royalty is concerned, the entire amount was claimed during the current year itself without apportioning the same in two years. - according to the assessee the royalty @ 20% of the gross course fee received was paid to the licensor, as per the terms of the agreement and that as per the agreement, royalty becomes due as soon as a student is enrolled Held that - In our considered opinion, First Appellate Authority has rightly applied the ratio of this judgement of the Jurisdictional High Court in CIT vs. Citi Financial Consumer Finance Ltd. [2011 (3) TMI 622] to the facts of this case. The First Appellate Authority also noted that in the subsequent AY i.e. 2008-09, no disallowance has been made. Thus even on the ground of consistency, we agree with the Ld.CIT(A). Hence we uphold the order of the CIT(A) - Decided against the revenue.
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2013 (5) TMI 191
Disallowance on account of MK 20 Development Expenses - relevant details were not available on record. Held that - A similar issue was restored by the Tribunal to the file of the AO in assessment year 2001-02 with a direction to verify the relevant details and allow the claim of the assessee as per law and the rule of consistency, in our opinion, was rightly applied by the learned CIT(Appeals) while sending back the similar issue to the file of the AO Legal expenses - whether capital in nature. - Held that - There is no evidence available with the assessee in the form of bill or receipt issued by the concerned Advocate to support and substantiate this claim and in the absence of the same, we find no justification in allowing the claim of the assessee for deduction on account. We, therefore, uphold the impugned order of the learned CIT(Appeals). Irrecoverable debit balance written off - Held that – Appellant contended that the allowability of the said amount as business loss as claimed by the assessee alternatively having not been considered either by the AO or by the learned CIT(Appeals), this issue may be sent back to the AO for this purpose. - Matter remanded back. Contributions made by the assessee to various funds - worker's union - disallowance u/s 40A(9). - Held that – According to appellant most of the contributions having been made by the assessee as per the settlement arrived at with the workers' union, the same are covered by the Industrial Dispute Act, 1947 and provisions of section 40A(9) of the Act cannot be invoked. However, no evidence was provided for the same. - matter remanded back. TP adjustment transactions with its AE involving import of components. - Held that - The only contention raised by the learned DR on this issue is that the learned CIT(Appeals) has taken net margin of the assessee as well as that of the two comparables assuming that the method adopted by the assessee is TNMM whereas he should have taken only the gross margin as the method actually adopted by the assessee for the relevant transactions is resale price method. The basis of comparability analysis has to be done by taking into consideration the gross margin of the assessee company as well as the two comparables. - Matter remanded back. TP adjustment in respect of transactions involving payment of royalty by the assessee company to its associated enterprises. - Held that - The issue involved in the present case is relating to the determination of arm's length price in relation to the international transactions involving payment of royalty by the assessee company to its associated enterprises. it appears from the TP report submitted by the assessee as well as the orders of the authorities below that neither the assessee nor the TPO or even the learned CIT(Appeals) has followed this procedure prescribed in section 92C of the Act and Rule 10B of the Income-tax Rules, 1962 to determine the arm's length price in relation to the royalty payment made by the assessee to its associated enterprises - matter remanded back. Deduction on account of payments made by the assessee to various professionals for taking advise for restructuring - Held that - At the time of hearing before us, the learned representatives of both the sides have agreed that this issue is squarely covered by the order of the Tribunal passed in assessee's own case for assessment year 2001-02 relying on which the learned CIT(Appeals) has given relief to the assessee in the year under consideration. - Deduction allowed - in favor of assessee.
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Customs
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2013 (5) TMI 190
Appeal against revocation of CHA licence under Regulation 22(7) of CHALR, 2004. - On a complaint made by a person it comes to notice that appellant, appearing for Regulation 8, Examination of CHALR, 2004 is failed in SSC examination and the graduation certificate submitted by him is bogus/fake and matter was referred to CIU, it is stated that the CHA, deliberately made false statements under Section 108 of the Customs Act, 1962 the CHA squarely failed to discharge their obligation under Regulation 13(n) read with Regulation 19(8) of CHALR, 2004 and merits immediate suspension and even revocation of CHA licence. Appellant submits that department during the course of inquiry proceedings both the charges were held “not proved”, but thereafter the Commissioner held the charges have been proved and consequently revoked their licence,, which is not correct in the light of the decision of the Hon’ble High Court of Judicature at Bombay in the case of Rajan Virji & Co. [2010 (1) TMI 955 - BOMBAY HIGH COURT] Held that - In the course of inquiry proceedings, the inquiry officer has rightly held that the allegations are not covered under the charges under Regulation 13(n)/19(8). As the inquiry officer has held that charge has not been proved, do agree with the report of the inquiry officer that the offences committed by the appellant is “not stand proved” under Regulation 13(n) and 19(8) of CHALR, 2004. As the decision of Hon’ble Bombay High Court in the case of Rajan Virji & Co. is still in force and on merit also the charges leveled against the appellant are not held to be proved as the same are outside the ambit of CHALR, 2004, we set aside the impugned order and withdraw the revocation of CHA licence.
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2013 (5) TMI 189
Refund on imports which was earlier banned but later on allowed pursuant to the decision of Special Bench of the Tribunal - Department denied on the ground of unjust enrichment. - Held that – Tribunal is of the view that this is a very old matter relating to imports in 1982 and 30 years have elapsed since then and the matter is still not finalised. Taking on record the affidavit submitted by the appellant and after consideration of the report of Comptroller and Auditor General who audited the accounts of the Company. The matter requires to be decided finally in favour of the appellants.
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Corporate Laws
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2013 (5) TMI 188
Infringement of trademarks - Plaintiffs seeking permanent injunction and also praying for an order of delivery-up of all infringing materials along with the rendition of accounts of profit illegally earned as well as damages Held that:- In the instant case, after perusal of the report of Local Commissioner along with the list of inventory prepared by him of the impugned goods and also after perusal of the other documents placed on record. I am of the opinion that the plaintiff has established a case of passing off with respect to the defendant’s products carrying the plaintiff’s trade mark TATA. The impugned goods are also clearly infringing the well-known trade mark of the plaintiff. The suit of the plaintiff is accordingly decreed and an order of permanent injunction restraining the defendants from manufacturing, selling, advertising pressure cookers or goods of any description bearing a trade mark that is identical or similar to the plaintiff’s trade mark TATA. The defendants are also directed to destroy the goods and packaging material or any other printed material bearing the trade mark TATA within a period of four weeks from today. With regards the relief of damages prayed the evidence of the plaintiff has gone unrebutted, which includes loss of business, reputation and goodwill in the market. Since the amount of damages claimed is based on assessment of the plaintiff which is unassailed a sum of Rs. 5,05,000/- can be reasonably awarded to the plaintiff as compensatory for the loss of business and damage to the goodwill.
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2013 (5) TMI 187
Application for Restoration of the name of company by the creditors - Record shows that the company M/s Value Advisory Services Private Ltd. (VAS- hereinafter referred to as "the Company") was struck off from the Register of the Registrar of Companies (ROC) on 29.12.2006 which was pursuant to a Simplified Exist Scheme, 2003 - Test of locus standi - The appellant (company) is aggrieved by the order wherein the application filed by him under order I Rule 10 read with Section 151 of the Code of Civil Procedure seeking impleadment in the proceedings pending under Section 560(6) of the Companies Act, 1956 had been dismissed. Held that:– Merely because a financial loss would be suffered by the appellant qua the arbitration Awards which had been passed against him would not entitle him to come under the exception seeking a refusal of the restoration of the company. The position of the company vis-à-vis this stand is that a healthy company who was admittedly operational at the time when its name was struck off would be deprived of its right to function as a going concern and in the bargain would not be permitted to recover its dues which amounts have accrued to it under the Awards of the Arbitral Tribunal. The positive averments made by the petitioners in the petition (C.P. No. 200/2011) alleging to be creditors of the company were dully supported by the balance sheet of the company which is an undisputed document. The elaborate submission of the learned senior counsel for the appellant that the petitioners are in fact nothing but stooges of the company thus does not hold water. They had prima facie established themselves as creditors of the company. The last submission urged by the petitioner was based on the principle of res judicata. - Held that :- The object of Section 11 of the Code is to confer finality to a decision arrived at by a competent court between interested parties after a genuine context; once the matter has been determined by such a competent Court neither party can be permitted to re-open it in a subsequent litigation. The plea of the appellant being that the petitioners before the single Judge were nothing but stooges of the company and since the order was binding upon the company, it would operate as a res judicata qua the two petitioners as well has already been answered by this court by holding that the petitioners had set up a valid claim of being creditors of the company dully supported by the balance sheet of the company which document remained un-assailed even by the ROC and which document in fact reflected that the company had a liability of more than Rs.10 lacs towards its creditors which included the aforenoted two petitioners. Impugned order in no manner suffers from any infirmity.
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Service Tax
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2013 (5) TMI 205
Refund claim of the interest for the delayed payment of service tax paid (which was not payable) denied - Held that: - Although the liability of service tax was not leviable as per the decision of the Indian National Ship Owners Association v. Union of India (2008 (12) TMI 41 - HIGH COURT OF BOMBAY) but the appellant did not take recourse of the claiming the refund of the service tax paid by them which implies that they have admitted their service tax liability. Once they have admitted their liability of service tax, the same should be paid along with interest as held in the case CCE v. SKF India Ltd. (2009 (7) TMI 6 - SUPREME COURT). Also see Vidyut Metallics Pvt. Ltd [2012 (11) TMI 376 - CESTAT, MUMBAI]. Thus as the appellants had admitted their service tax liability by not claiming the refund of the same and also taken the credit of the same, therefore interest on delayed payment is payable by the appellant. Accordingly, the refund claim is not maintainable.
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2013 (5) TMI 204
Accounts maintenance charges - Service tax demand - Held that:- As regards the account maintenance charges, in view of the Stay Order dated 29.12.2011 the appellants have made out a prima facie case in their favour. Transaction charges - Held that:- The documents submitted in the form of 'FAQ-Equities, prima facie, make it clear that the appellants are entitled to collect transaction charges levied by NSE and therefore, the same cannot be treated as charges towards stock brokerage. Further, these charges are taxable from May 2008 under Section 65(105) (zzzzg) as charges collected by the exchange. Thus there shall be waiver of dues as per the impugned order and stay of recovery thereof till disposal of the appeal.
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2013 (5) TMI 203
Application filed by the department seeking stay of operation of the impugned order - Held that:- As on perusal of the records and hearing the Superintendent (AR) it is found that the appeal was filed against grant of refund of Rs. 847/- to the respondent. The appeal itself is liable to be rejected. Hence the appeal is dismissed along with the stay application.
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2013 (5) TMI 202
Penalties u/s 78 of the Finance Act - Held that:- The issue is no more res integra and stands settled by the Tribunal's decision in the case of Nawanshahr Cooperative Sugar Mills Vs. CCE Jalandhar [2008 (6) TMI 7 - CESTAT NEW DELHI] in their judgement dated 20.6.2008 wherein held just because the storage period of free sale sugar had to be extended at the behest of the GOI, neither the Appellant become “storage or warehouse keeper nor the GOI become their client. As Revenue in their appeal memo is not disputing the applicability of the above relied upon decision of the Tribunal but he contended that the stay order has not been accepted by the Department and appeals have been filed before the Punjab & Haryana High Court. In as much as there is no stay of the order of the Tribunal by the Hon'ble High Court and the issue stands decided no reason to interfere with the impugned order of the Commissioner (Appeals). Accordingly, both the appeals filed by Revenue are rejected
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2013 (5) TMI 201
Disputed issue relating to inclusion of cost of materials used for providing photographic services – Held that - The Tribunal in the case of CCE v. Satyam Digital Photo Lab [2011 (9) TMI 199 – CESTAT] has held that when the law was declared against the assessee subsequently to the period involved, and when the earlier decision were in favour of the assessee, no suppression can be attributed to the appellant so as to justifiably invoked longer period of limitation. We accordingly after dispensing with the condition of pre-deposit decide the appeal also by allowing the same.
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Central Excise
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2013 (5) TMI 186
Deemed credit taken disallowed along with interest and imposition of penalty - as per dept. merchant manufacture for whom the goods were manufactured has exported goods by forging documents - Grey fabrics received by the appellants on which deemed credit was taken - Held that:- It is not the case of the department that the inputs on which deemed credit was taken has been cleared by the appellants as such. The goods on which deemed credit was taken were duly processed/manufactured and cleared. It was only the merchant exporter who diverted the goods by forging exporter documents. On the ground of diversion of these goods by merchant exporter, it cannot be considered that grey fabrics on which deemed credit was taken were not further manufactured and accordingly cenvat credit is not deniable. In favour of assessee.
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2013 (5) TMI 185
Refund of excess duty paid - as per assessee excess payment has happened due to some clerical mistakes which they detected subsequent to reversal of credit and this clerical mistakes were corrected in the credit account - Held that:- It is not coming out clearly as to how the excess payment is identified and reversed. It is also not clear whether the duty payment was passed on to the buyers of the products and whether any unjust enrichment would be involved if such excess payment gets refunded. Under Central Excise Law, refund of excess duty has to go through very strict scrutiny as laid down in Section 11B and that cannot be circumvented by taking suo motu credit. Therefore, no merit in the appeal filed by the appellant. However, the appellant’s request for lenient approach in the matter of penalty is considered and the penalty is reduced to Rs.5000/-. Except for partial relief in penalty, the appeal is rejected.
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2013 (5) TMI 184
Predeposit towards penalty - as per the stay order in the event of deposit of the amount of Rs. 50,000/- by the company there would be waiver and stay in respect of the penalty imposed on the Managing Director and the balance amount of penalty on the company. - Held that - In the absence of evidence of pre-deposit of the amount of Rs. 50,000/- by the assessee, their Appeal is dismissed for non-compliance with Section 35F of the Central Excise Act. The Managing Director’s appeal will be disposed of in due course.
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2013 (5) TMI 183
Waiver of predeposit - Denial of credit – capital goods/inputs, input services - Held that - no effort was taken to construe the meaning of the 2nd explanation to the definition of input and to understand the scope of such arguments. - The adjudicating authority has got to examine whether HR Plates, MS Plates and Pipes etc., which are claimed by the appellant to have been used in the manufacture of capital goods in connection with setting up of their cement plant, would fall in the exclusion part of the 2nd explanation to the definition of input. If these items cannot fall in the exclusion part of the explanation, they might be covered by the definition of input provided, of course, they were used for manufacture of machinery (capital goods). - Matter remanded back for reconsideration. Regarding input services - nexus - appellant claims to have used 15 services, in, or in relation to, the setting up of their cement plant. - the burden is on the appellant to prove that the services were used in or in relation to the setting up of the cement factory. They set up such claim in their reply to the show-cause notice, but the adjudicating authority held that no nexus was established between any of the above services and the manufacture of cement. It appears, this finding was recorded without due regard to the fact that setting up of factory was one of the aspects expressly mentioned in the inclusion part of the definition of input service. - matter remanded back for de novo adjudication.
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2013 (5) TMI 182
Notification 8/99-CE for goods manufactured by Small Scale units - inclusion of value of captive consumption - as per dept value of plastic film and plastic laminated film captively consumed had not been taken into account while calculating the aggregate value of clearances - Held that:- Entry at 1(i) of the Annexure to the notification does not make any mention to exclude the goods exempt subject to any condition. The entry has to be interpreted in a plain and simple manner and so long as the plastic pouches were exempted they could not be considered as specified goods. As a consequence, the value of plastic film and plastic laminated film used for making such pouches are to be included the aggregate value of clearances under Notification 8/99-CE. Therefore, no infirmity in the order passed by the lower authority and same is upheld. Consequently appeals are rejected.
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CST, VAT & Sales Tax
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2013 (5) TMI 208
Properties in question were mortgaged - The properties were sold - Revenue recovery proceedings were initiated against the properties for realising the sales tax dues - Section 26A of the KGST Act - Section 100 of the Transfer of Property Act - Held that:- The other contention raised by the learned counsel is based on S.100 of the Transfer of Property Act. It is urged by the learned counsel that the charge created under S.100 at the time of creation of the mortgage cannot be defeated by a statutory charge which came into operation at a later stage. This contention under Section 100 has also been answered by their Lordships in Bhikhabhai's case and the answer is against the petitioner - This judgement has been followed by this Court in the judgment in W.P.(C).8179/08 -These writ petitions are only to be dismissed and I do so
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2013 (5) TMI 207
Remitted entry tax to the tune of Rs.50,000/- as per the Kerala Tax on Entry of Goods into Local Areas Act, 1994 - Later on petitioner was assessed the total tax liability as Rs.1,95,600 - Held that:- As per the decision reported in Thressiamma L. Chirayil V. State of Kerala (2007 (1) KLT 303), the appeal was allowed and Ext.P4 order was passed by the appellate authority on 20.6.2008, whereby the first respondent was directed to refund the amount remitted by the petitioner/appellant as per the interim order passed by this Court. There is no case for the respondents, that Ext.P4 order has been challenged by filing any further appeal or such other proceeding by the Department/Revenue. This being the position, so long as the issue between the petitioner and the respondents is concerned, it has become final, as per Ext.P4 - there will be a direction to the first respondent to effect the refund as ordered by the appellate authority vide Ext.P4, on executing a bond by the petitioner agreeing to have it repaid, if the decision in the matter pending before the Apex Court is answered in favour of the Revenue - Writ petition is disposed of accordingly.
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2013 (5) TMI 206
The bank has sought for attachment of other properties which would come in the way of any private sale intended by the defaulter to discharge his liability to the respondent/Bank and also other creditors - violation of directions issued at Ext.P2 order - Held that:- We note that the learned Single Judge who passed the impugned judgment and orders at Exts.P1 and P2 is one and the same - The directions at Exts.P1 and P2 given by the learned Single Judge are altogether different on comparison with present agitation raised by the appellants. Approaching the concerned authority seeking permission to sell one item of the property or other item as well and depending upon the stand of the authority or the creditor, no such right is vested with the appellants to contend that he must be allowed to sell the property by private negotiation. So far as the present attachment by the recovery officer at the instance of the respondent/Bank for realising the dues of the respondent/Bank he proceeded to allow the attachment of other properties which were not secured on account of genuine grounds raised by the respondent/Bank - No good ground is made out by the appellants to interfere - Appeal of the assessee is dismissed.
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