TMI Tax Updates - e-Newsletter
July 28, 2014
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
Income Tax
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TDS u/s 194A - no parity can be drawn between interest accruing to SRF a/c and the withdrawals made u/s 33ABA(5) which are assessable as business income - No TDS required - AT
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Foreign exchange system services provided - Article 13 Indo-UK DTAA once the receipt has been decided as royalty in nature then there is no need to go into the question of assessee having PE in India - - AT
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The rent received by the assessee is more than the municipal rateable value - the rent received by the assessee has to be taken as the Annual value u/s 23 of the Act - AT
Customs
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Refund - There was no need for them to have waited for the survey report before filing the refund claim under Section 27 of the Customs Act, 1962 - refund rejected on the ground of period of limitation - AT
Service Tax
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Power of tribunal to grant stay beyond the total period of 365 days - on expiry of maximum period of 180 days the assessee / appellant is required to submit application for extension of stay each time and the Appellate Tribunal is required to consider the individual case and pass a speaking order - HC
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All the regulatory approvals benefit the purchaser of land and expenses incurred thereon are recovered from the purchaser - no real estate agent service can be said to have been provided by M/s. SRL to M/s. SEL - AT
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When pipes are handed over to farmers for use, it is natural that the assessee will not have control over its use that transfer of goods involve transfer of possession and effective control. - AT
Central Excise
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Job Work - SSI units - duty liability on the manufactured goods, which come into existence and are captively consumed for which exemption is not available under SSI exemption - AT
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Clandestine clearance - onus to prove - Once the application or proceedings before the Settlement Commission fails, the Central Excise Officer is required to adjudicate the entire proceedings and show cause notice - HC
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Waiver of pre-deposit - tribunal to consider prima-facie case or to study the matter in detail in stay application - order of the tribunal on merit is not correct - HC
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Confirmation of demand without issuance of Show Cause Notice - Matter remanded back to the adjudicating authority to decide the issue with an independent mind - HC
VAT
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Appellants are entitled to deduction claimed for with regard to the discount allowed by them as a retailer based on ordinary trade practice by way of issuing credit note even without showing the same in the sale invoice or the bill - HC
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Recovery of tax - Crystallization of demand is pending - respondents / revenue shall return three cheques collected from the petitioner to them - HC
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2014 (7) TMI 915
Penalty u/s 271D/ 271E Amount accepted or repaid in contravention of section 269SS and 269T Held that:- Ample opportunity will be given to the assessee to submit its case - whether with respect to the transactions provisions of Sections 269-SS and 269-T of the Act would be applicable or not can be considered only after thorough enquiry and considering the activities of the petitioner as well as respective transaction even while conducting enquiry, relevant documents and other facts are required to be considered thus, let the assessee appear before the appropriate authority who has issued the Show Cause Notice - Decided in favour of Assessee.
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2014 (7) TMI 914
Cancellation of order u/s 263 Held that:- The Tribunal was of the view that the basis or foundation for the order u/s 263 was completely lacking - this was not a blind acceptance of the version of the assessee, as is now termed - Such an order may be erroneous, according to the Commissioner, surely Section 263 could not have been invoked - since the Tribunal had rested its conclusion essentially on applicability of Section 263 of the Act and which cannot he held to be perverse or vitiated by any error of law apparent on the face of record that there is no merit in the Appeal Decided against Revenue.
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2014 (7) TMI 913
Claim of interest on delayed refund u/s 244(1A) Held that:- The second proviso to Section 244 (1A) of the Act only excludes a period of one month for payment of interest Relying upon Commissioner Of Income Tax Versus Hansa Agencies Private Limited [1997 (9) TMI 49 - PUNJAB AND HARYANA High Court] - assessee is entitled to interest u/s 244 (1A) of the Act on the Self-Assessment Tax paid by him from the date when the original assessment order was made with the rider in terms of second proviso to Section 244 A of the Act, a period of one month from the date of passing the order in appeal will not carry any interest and the same is to be excluded - the Commissioner of Income Tax, Mumbai is directed to pay after verification to the assessee the amount being the interest payable from 28th March 1989 to the date of grant of refund on 30th March 1998 after excluding a period of one month as provided in second proviso to Section 244(1A) of the Act. The Revenue by not paying over the interest due have deprived the assessee of its money for sixteen long years following the decision in Commissioner of Income Tax, Gujarat Versus Gujarat Fluoro Chemicals [2013 (10) TMI 117 - SUPREME COURT] - Commissioner of Income Tax is directed to verify and pay the amount being the interest payable from 28th March 1989 up to the grant of refund on 30th March 1998 after having excluded interest for one month in terms of second proviso to Section 244(1A) of the Act the assessees prayer to direct the Commissioner of Income Tax to grant interest on the interest of ₹ 6,76,002/- from 28th March 1989 till payment is rejected Decided partly in favour of Assessee.
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2014 (7) TMI 912
Reopening of assessment u/s 148 Mere change of opinion - Held that:- In Hindustan Lever Ltd. v/s. R. B. Wadkar [2004 (2) TMI 41 - BOMBAY High Court] it has been held that the reasons recorded by the AO are for re-opening of the Assessment are alone to be considered to determine whether or not the AO had jurisdiction to issue notice under Section 148 of the Act - the reasons as indicating an excess grant of benefit u/s 36(1)(viii) of the Act to the assessee - the AO had applied his mind to the material available before him for purposes of considering the claim for deduction u/s 36(1)(viii) of the Act. Also in Commissioner of Income Tax v/s. Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT OF INDIA] it has been held that it is not open to the Revenue to re-open an Assessment on the basis of mere change of opinion AO has no power to review under the shelter of re-opening of Assessment u/s 147/148 of the act - only because the conclusion arrived at earlier is erroneous would amount re-viewing the same material to come to possibly a different conclusion AO has allowed the deduction under Section 36(1)(viii) of the Act - It is not open to re-look at the same material only because it is subsequently of the view that the conclusion arrived at earlier, is erroneous Decided in favour of Assessee.
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2014 (7) TMI 911
Claim of bad debts u/s 36 Held that:- The Tribunal while allowing the claim of the assessee of deduction u/s. 36(1)(vii) of the Act, as bad debts, relied upon Vijaya Bank v. CIT [2010 (4) TMI 46 - SUPREME COURT] - where assessee bank had written off bad debt in its books by way of a debit to profit and loss account, simultaneously reducing corresponding amount from loans and advances to debtors depicted on assets side in balance sheet at close of year, the assessee- bank was entitled to deduction u/s 36(1)(vii), it was not necessary for it to close individual account of each of its debtors in its books the order of the Tribunal is upheld Decided against Revenue.
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2014 (7) TMI 910
Admission of appeal AO was of the view that no business activity carried Telecommunication service Held that:- The Tribunal was of the view that the assessee did not start providing telecommunication services in the period relevant to the AY 1996-97 - whether or not the assessee started providing telecommunication services in any year, has to be decided in the assessment proceedings for that year in the light of the relevant facts and circumstances obtaining in that assessment year alone Relying upon New Jehangir Vakil Mills Co. Ltd. Versus Commissioner of Income-tax [1963 (4) TMI 60 - SUPREME COURT] - Tribunal was rightly of the view that the AO materially erred in reopening the issue there was no reason to interfere with the order of the Tribunal - The appeal is admitted on the remaining two issues as to entitlement of deduction u/s 80IA and allowability of expenses as license fees u/s 37(1) Decided partly in favour of Revenue.
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2014 (7) TMI 909
Exemption u/s 11 and 12 Investment being 5% - Whether the Appellate Authorities were correct in holding that the investment made would be less than 5% of the capital of the assessee if the borrowed amount is treated as capital and the investment is made in furtherance of the objective of the Trust and exemption u/s 11 and 12 should be granted Held that:- If the funds invested in a concern in which any person referred to in section 13(3) has substantial interest, does not exceed 5% of the capital of that concern, the exemption u/s 11 and 12 of the Act shall not be denied - The word used is 'Capital' of the concern, the word 'Capital' has not been defined under the Act. Relying upon Commissioner of Wealth Tax Vs. Lallubhai Gordhandas Charitable Trust [1999 (9) TMI 85 - GUJARAT High Court] - especially while granting the benefit to the charitable institution, when the legislature consciously provided for the funds of the Trust by way of investment and they have fixed a limit of 5%, by placing an interpretation which is contrary to the expressed words, benefits cannot be denied to the assessee - computation is to be made for investment by charitable trust - The word "capital" of the concern should be understood as the total capital of the concern - Both the Tribunal and the Appellate Authority were justified in holding that the capital of the concern with regard to a company cannot be considered as only a share capital no substantial question of law arises for consideration Decided against Revenue.
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2014 (7) TMI 908
Manipulation of bank account - AO has computed the peak deposits in each bank and half of the amount was taxed in the hands of the assessee and rest of the amount was taxed in the hands of his brother Held that:- CIT(A) rightly held that the deposits in these accounts can be made by foreign remittances / drafts - Shri Mohd. Mohsin in his statement u/s. 132(4) had also given details and the reason for the possession of bank passbooks / cheque books - The accounts seized at the time of search were NRE accounts - Since inception when the raid was conducted, the assessee's stand was that the purpose of having all those accounts was to issue presigned cheques for charity - assessee and his brother had no connection with those bank accounts - they have not derived any benefits from those accounts revenue has not established any nexus of the accounts with the business activity of the assessee - only foreign remittance was permissible to transfer the funds in NRE account - CIT(A) was right in holding that the addition was merely on a conjecture that the bank accounts belonged to "poor and gullible" relatives of the assessee, the deletion is upheld Decided against Revenue.
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2014 (7) TMI 907
Adjustment of book profits Held that:- CIT(A) has considered the sources of borrowed funds during the year - None of the loans have been utilized for the investment into shares of the companies - provisions of sub-clause (ii) of Rule 8D(2) are very clear on this wherein it has been provided that only interest expenditure is required to be considered which is not directly attributable to any particular income or receipt - there was no error in the findings of the CIT(A) in so far as interest expenditure of ₹ 16.22 crores is concerned Decided against Revenue. Applicability of section 14A r.w Rule 8D - Non-consideration of balance interest and administrative expenses Held that:- There is no mention of Special Purpose Vehicle in the assessment order nor the AO has given any findings on the net worth vis-ΰ- vis investments of the assessee- the fact relating to the Special Purpose Vehicle was not before the AO, the matter is remitted back to the AO for fresh adjudication Decided in favour of Assessee.
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2014 (7) TMI 906
Re-Assessment Proceedings u/s 148 Reassessment initiated u/s 115WG Held that:- The return was processed u/s. 115WE(1) of the Act -The return was accompanied by statutory report wherein it was specifically mentioned that the assessee has not considered the expenses on account of conference and meeting, business promotion Telephone-mobile expenses, Travel expenses, lodging and boarding expenses for FBT - the expenses have not been considered for the levy of FBT because they are legitimate business expenditure and not pertaining to welfare of employees and hence not liable to FBT u/s. 115WA of the Act. The reasons disclosed by the AO that there was escapement of income on going through the return of FBT filed by the assessee after he accepted the return u/s. 115WE(1) without scrutiny and nothing more - there is nothing in the reasons recorded to show that any tangible material had come into the possession of the AO subsequent to the issue of intimation - Relying upon CIT Vs Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA] - even in the cases of assessment u/s. 115WE(1), the reopening of the assessment cannot be made unless there is some new tangible material evidence to support the reopening of the assessment - the notice issued u/s. 115WG is set aside Decided in favour of assessee.
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2014 (7) TMI 905
Jurisdiction of Order u/s 201(1)/201(1A) Obligation to deduct TDS u/s 194A on interest accrued on deposits - Applicability of section 194A for site restoration fund - Interest has been credited by SBI on SRF a/c which has been opened by ONGC with it as per the provisions of section 33ABA - the nature of receipt is to be decided at the first instance - The interest accruing to SRF a/c is income of ONGC and the deeming provision as per third proviso to section 33ABA(1) of treating it as deposit is essentially application of income - ONGC is accounting for the interest in its P&L A/c and then claiming deduction of deposit which includes the interest accrued on SRF a/c - The deeming fiction contemplated in third proviso is for the purposes of section 33ABA only and cannot be extended beyond the purpose for which it has been inserted in section 33ABA. It is the nature of receipt being interest, which triggers the applicability of provisions of section 194A and if the assessee was claiming for no TDS then it should have obtained certificate u/s 197 for non-deduction/ at lower rate - The interest income does not loose its character merely because of the deeming provisions u/s 33ABA treating the accrued interest being treated as deposit - the nature of a receipt is to be decided at first instance; and secondly, this sub-section does not make the withdrawals chargeable to tax till the account is not closed - It is not the case of assessee that when withdrawal is made on closure of account, then also the amount withdrawn is to be subjected to TDS - this sub-section refers to entire credit balance lying in this account and not only the accrued interest - section 33ABA(5) brings to tax the amount which was earlier allowed as deduction. The deposits contemplated u/s 33ABA need not necessarily come from business of extraction or production of petroleum or natural gas because of the word used 'consisting' in sub-section (1) of section 33ABA - The deposits can be made from any other source of income also - no parity can be drawn between interest accruing to SRF a/c and the withdrawals made u/s 33ABA(5) which are assessable as business income - it cannot be held that interest accrued on SRF a/c was not chargeable to tax in the year of accrual thus, the provisions of section 194A are not applicable Decided against Revenue.
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2014 (7) TMI 904
Payment of pension and gratuity funds u/s 43B Expenses not debited to P&L A/c eligibility for deduction u/s 37 Held that:- CIT(A) was of the view that the purpose of S.43B is to ensure that the employer does not retain the amount with himself, after making certain statutory deductions in connection with the welfare of the employees - It is to plug such delayed/non-payment of deducted amount, S.43B was introduced - since the assessee has made the payment before the due date for the filing of the return, assessee is entitled for deduction, and disallowance in terms of S.43B was not warranted - CIT(A) noted that the amount is allowable as a business expenditure under S.37 of the Act Relying upon Joint Commissioner of Income-tax (Assts.), Spl. Range 3, Hyderabad Versus Lamtuff Plastics Ltd. [2006 (1) TMI 535 - ITAT HYDERABAD] - irrespective of the method of accounting followed by the assessee, and the fact that the assessee has not debited the payments made towards gratuity and pension fund to Profit & Loss Account, disallowance made by the AO in terms of S.43B is not warranted Decided against Revenue. Amount spent on Andhra Rural Development Trust Expenses for the purpose of business or not Held that:- The expenditure claimed by the assessee treated as expenditure having been incurred by the assessee in discharge of its corporate social responsibilities, which also facilitated the business of the assessee, and hence allowable as deduction under S.37(1) of the Act Following the decision in THE COMMISSIONER OF INCOME TAX, BANGALOR & OTH. Versus M/s INFOSYS TECHNOLOGIES LTD [2013 (7) TMI 451 - KARNATAKA HIGH COURT] - thus, the amount spent by the assessee-bank, was not only in discharge of corporate social responsibility to train the rural youth, but also to indirectly to promote its own business, since the rural youth trained were its prospective clients, as the bank also intended to extended credit facilities to such unemployed youth for starting their own enterprise there was no infirmity in the order of the CIT(A) Decided against Revenue. Expenses on public issue u/s 35D Held that:- CIT rejected the claim of the assessee, observing that the assessee is not an industrial undertaking and as such it is not entitled to claim deduction in respect of such expenditure Following the decision in Andhra Bank Ltd. Versus Dy. Commissioner of Income- tax, Circle - 1(1), Hyderabad [2013 (10) TMI 415 - ITAT HYDERABAD] - order of the CIT(A) is upheld Decided against Assessee. Provision for bad debts u/s 36(1)(viia) Held that:- CIT(A), after considering the provisions of S.36(1)(viia) of the Act, and also the CBDT's Instruction No.17/2008 dated 26.11.2008, upheld the disallowance made by the AO - Following the decision in Andhra Bank Ltd. Versus Dy. Commissioner of Income- tax, Circle - 1(1), Hyderabad [2013 (10) TMI 415 - ITAT HYDERABAD] Decided against Assessee. Premium paid to LIC towards leave encashment policy Held that:- The payment of the premium is not an expenditure of the nature described in Sections 30 to 36 - Section 43B contains non-obstante provision and there in Clause (f) payment by the assessee as employer in lieu of any leave to the credit of its employees has been recognized as a revenue expenditure The expenditure has been certified as an expenditure not for personal expenses of the assessee and that the same is wholly and exclusively for the purpose of the business or profession of the assessee - relying upon CIT V/s. Nainital Bank Ltd. [2014 (1) TMI 449 - UTTARAKHAND HIGH COURT] Decided in favour of Assessee. Expenses on earning to tax free income under Rule 8D Held that:- The assessee itself has disallowed an amount being two months' salary of offers and staff working in Investment Department under S.14A AO has not properly appreciated the facts of the case and has mechanically applied Rule 8D - profit or loss has to be considered under the head 'business or profession' and the claim of expenses are to be considered under the head 'business' and provisions of S.14A and Rule 8D are not applicable - the disallowance offered by the assessee itself in terms of S.14A, working out to almost 2%, is quite reasonable and in consonance with the view taken by the Tribunal for the preceding year Decided in favour of Assessee. Interest on Agricultural loan Held that:- CIT(A) is not justified in equating the amount receivable from Government of India through Agriculture Debt Waiver and Relief Scheme, 2008 and credited to Profit & Loss Account with the provision for bad and doubtful debts, which is governed by the provisions of S.36(2)(v) the amount merely on the basis of credit made to the Profit & Loss Account, cannot be brought to tax in the year under appeal Relying upon CIT V/s Bokaro Steel Ltd. [1998 (12) TMI 4 - SUPREME Court ] - mere entries in the Profit and Loss Account and the books of account cannot clinch the issue with regard to taxability of an income - It is only such entries, which reflect the real income which can be brought to tax, in the relevant assessment year Decided in favour of Assessee.
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2014 (7) TMI 903
Miscellaneous expenses disallowed Proof and proper verification Held that:- The extent the expenditure claimed is not properly vouched, the manner and extent of such booking of expenditure can be examined, even probed, by the A.O., to arrive at a finding as to the extent of over-booking or inflation that attends the same, or can be reasonably attributable thereto - The assessee claiming proper substantiation, the entire case as built on surmise - The nature of the expenditure forming part of the impugned expenditure in the main suggests otherwise, making it all the more incumbent on the assessing authority to state his case explicitly - it is a clear case of non-application of mind by, in fact, both the authorities, by the first appellate authority being equally de hors and without reference to any specifics there was non-discharge of the burden of proof on it by the assessee, leading to a state of factual indetermination, there was no basis to hold that in the instant case, the Revenues case being without reference to the primary facts, and imbued with a complete lack of objectivity, so that no prima facie case is made out for us to consider a set aside for fresh determination Decided in favour of Assessee.
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2014 (7) TMI 902
Penalty u/s 271(1)(c) - Failure to prove that income from property arisen due to systemic activity Held that:- The assessee is in the business of taking the property on lease and further leasing out the same then treating the rental income as business income is a bonafide claim of the assessee though the same was not accepted by the AO - The issue of treatment of rental income as income from house property is highly debatable issue and rejection of such claim by the AO by taking a different view does not ipso facto lead to the conclusion that the assessee has furnished inaccurate particulars of income or concealed the particulars of income - rejection of claim would not tantamount to concealment of particulars of income or furnishing of inaccurate particulars of income warranting levy of penalty Relying upon COMMISSIONER OF INCOME TAX-I, MUMBAI Versus M/s BENNETT COLEMAN & CO LTD [2013 (3) TMI 373 - BOMBAY HIGH COURT] - assessee has furnished and disclosed all relevant particulars regarding the income from letting out of the property - assessment of income under a different head by the AO resulting in disallowance of expenditure would not justify levy of penalty u/s 271(1)(c) particularly when the assessee is in the business of taking the property on lease and then letting out the same on sub-lease Decided against Revenue.
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2014 (7) TMI 901
Disallowance u/s 14A r.w. Rule 8D Held that:- As decided in DCIT Versus Subhkam Monetary Services (P) Ltd. [2012 (5) TMI 310 - ITAT, Mumbai], the same has been followed - the matter has been remitted back to the AO with the direction to compute disallowance to be made u/s 14A of the Act on a reasonable basis by following the decision GODREJ AND BOYCE MFG. CO. LTD. Versus DEPUTY COMMISSIONER OF INCOME-TAX AND ANOTHER [2010 (8) TMI 77 - BOMBAY HIGH COURT] - the provisions of Rule 8D is not applicable to the instant year Decided in favour of Assessee. Purchase and sale of shares treated as STCG and not business income Held that:- CIT(A) has reversed the decision of the assessing officer by following his order passed for the immediately preceding year - the contention of the assessee is that the facts that prevailed in the immediately preceding year are materially different from the facts available in the instant year there was not be any dispute that the question whether the income arising on sale of shares is assessable as Capital Gains or Business Income may be required to be examined every year by following various criterion illustrated by the Courts - assessee has filed additional evidences, they are required to be examined at the end of the AO thus, the matter is remitted back to the AO for fresh adjudication Decided in favour of Revenue.
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2014 (7) TMI 900
Extension of stay of outstanding demand Held that:- The Jurisdictional High Court, has held that the variation / modification in the terms of earlier stay granted by the Tribunal should not be disturbed as there has been no change in the facts and circumstances, when the original stay was granted - prima-facie the issue involved has not been settled finally against the assessee and also that there is no material change in the facts and circumstances of the case, the stay should be extended - the assessee has never sought any adjournment during the hearing of the appeal and it is only the Department which has been seeking adjournments from time to time - There is no fault on the part of the assessee for conducting the appeal thus, the outstanding demand for the AYs is stayed for a further period of six months or passing of the order by the Tribunal in the appeal, whichever is earlier Stay granted.
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2014 (7) TMI 899
Foreign exchange system services provided - Article 13 Indo-UK DTAA Royalty under clause (iva) of Explanation 2 to 9(1)(vi) Held that:- Assessee is facilitating its clients to use its system and application programming interface which is subscriber interface for use with the related services includding Autoquote service - assessee is also providing the equipments with pre-loaded software to its subscribers and network used for provision of the services - it is clear from the terms and conditions of the contract between the parties that it is subscriber who is using the information and system of the assessee for their commercial/business purposes - the portal having system of matching the request along with the computer and internal access to the clients constitute integrated commercial equipment which performs complex functions of processing the request, providing information and facilitates the transaction of purchase and sale of foreign exchange by matching the demand and supply - The platform of transacting the purchase and sale is commercial equipment allowed to be used by clients/subscribers for commercial purposes - The payments made by Indian clients/subscribers to the Assessee for use and right to use of such equipment and information for processing their request of purchase and sale of foreign exchange constitute royalty. By allowing the use of software and computer system to have access to the portal of the Assessee for finding relevant information and matching their request for purchase and sale of foreign exchange amount to imparting of information concerning technical, industrial, commercial or scientific equipment work and payment made in this respect would constitute royalty - the income received by the assessee from the Indian Banks is in the nature of royalty - once the receipt has been decided as royalty in nature then there is no need to go into the question of assessee having PE in India - the provision of para 6 of Article -13 cannot be invoked in case when the receipt is found as royalty in terms of Article - 13(3) of the DTAA and assessee has not admitted any PE in India Decided against Assessee.
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2014 (7) TMI 898
Estimation of annual value of house property Rent received disregarded - tax authorities have considered the value of property only for determining the Annual Rental value - Held that:- Charge u/s.22 is not on the market rent but is on the annual value and in the case of property which is not let out, municipal value would be a proper yardstick for determining the annual value - If the property is subject to rent control laws and the fair rent determined in accordance with such law is less than the municipal valuation, then only that can be substituted by the municipal value - the AO has determined the Fair rental value in both the years by considering the value of investment of the flat - CIT(A) has slightly reduced the same in AY 2006-07 and confirmed the same in AY 2007-08 - the tax authorities have considered the value of property only for determining the Annual Rental value Relying upon Dy. CIT Versus Reclamation Realty India Pvt. Ltd.[2010 (11) TMI 477 - ITAT, MUMBAI] - the Standard rent / Municipal rateable value has to be considered as fair rental value - the rent received by the assessee is more than the municipal rateable value - the rent received by the assessee has to be taken as the Annual value u/s 23 of the Act order of the CIT(A) set aside Decided in favour of Assessee.
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2014 (7) TMI 897
Search assessment u/s 153A No incriminating materials found during search Held that:- Assessment of income in case of search u/s 153A is to assess or reassess income for specified period CIT(A) found that no specific seized document, much less incriminating, has been found, seized or brought on record by the AO in case of the assessee pertaining to the year - CIT(A) noticed that in the assessment order the AO has made discussion about list of 61 dummy concerns with bank accounts, undisclosed bank accounts & unaccounted business transactions pertaining to K.S. Oils Ltd., but none of them belongs or pertains to the assessee for the year under consideration nor there is any material on record proving assessees connection with the dummy concerns or undisclosed bank accounts or unaccounted transactions. Relying upon All Cargo Global Logistics Ltd. vs. Deputy Commissioner of Incometax, Central Circle-44 [2012 (7) TMI 222 - ITAT MUMBAI(SB)] - AO referred the material/incriminating material in respect of the group, K.S. Oils Limited as noted by the CIT(A) in his order - not a single document has been pointed out relating to the assessee even after specifically asked by the assessee - no incriminating documents or material were found during the course of search in the case of the assessee - Revenue has failed to point out any contrary material to the facts recorded and finding given by the CIT(A) - the additions are not warranted in the hands of the assessee - assessee has filed return for the AY under consideration in due course on 21.10.2004 declaring income which is same as per return filed u/s. 153A on 16.09.2011 after the search operations on 11.03.2010 - there are no pending proceedings to be abated, therefore, routine additions are not warranted - CIT(A) has rightly decided the issue in favour of the assessee Decided against Revenue.
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2014 (7) TMI 896
Calculation of book profits u/s 115JB - Interest expenses disallowed as unascertained liability - Held that:- Whether the interest liabilities constitutes ascertained one or not is also linked to the issue of rejection of books of accounts as the books of account is the basis for computation of book profits u/s 115JA of the Act - Following the decision in Hitesh S. Mehta Versus DCIT Central Circle- 23, Mumbai [2013 (10) TMI 1065 - ITAT MUMBAI] - the issue is to be remitted back to the CIT (A) for fresh adjudication Decided in favour of assessee. Interest u/s 234A, 234B and 234C Applicability of interest on notified persons - Held that:- The issue relating to the deduction of interest expenditure is remitted to the CIT (A) for fresh adjudication thus, the liability of the assessees u/s 234A, 234B and 234C depends upon the proposed adjudication of the CIT (A) in the set aside proceedings Decided in favour of Revenue.
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Customs
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2014 (7) TMI 920
Recovery of demand when stay application is pending before tribunal - classification dispute - import of "steaming non-coking coal" - classifiable as Steaming Coal or bituminous coal - Held that:- when stay application is pending before the CESTAT, the second respondent should not resort to any coercive action for collection of any amount, till the stay application is disposed of by the CESTAT. Therefore, the writ petitions are disposed of directing the the second respondent not to take any coercive steps for recovering any amount from the petitioners, till the disposal of the stay application by the CESTAT. - Decided in favor of assessee.
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2014 (7) TMI 919
Regularizing the credit availed fraudulently by over-valuation of goods exported - fraudulently obtained DEPB Scrips have been utilized by the exporters - Held that:- A perusal of the order of the Tribunal would indicate that the respondent, being aggrieved by the Order-in-Original No.22 / 2008-Adjn-Cus, dated 29.12.2008 imposing penalty of ₹ 10.00 lakhs under Section 114 of the Customs Act, filed the appeal before the Tribunal. The Tribunal had found that the company, in which the respondent is a Director, itself had not violated any of the provisions of the Customs Act and in particular had not misutilized the DEPB scrips and thereby exonerated itself from the levy. Inasmuch as the company itself was exonerated the penalty imposed on the respondent was also set aside. The substantial questions of law said to have been arising from the orders of the Tribunal only relate to the company and no question of law as to why the order of exoneration of penalty passed in favour of the respondent needs to be interfered with, has been raised. In other words, there is no question of law which has been raised before this Court for consideration as arising from the orders of the Tribunal to maintain the appeal under Section 130 of the Customs Act. - Decided against the revenue.
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2014 (7) TMI 918
Refund of excess duty - duty paid on original value - later on survey goods were found as damaged and assessed as scrap - period of limitation - appellant filed the refund post survey report - Held that:- Appellants should have filed the refund claim before the expiry of six months from the date of payment of [duty and interest, if any, paid on such duty]. Nothing prevented the Appellants to file the refund claim within the prescribed limit of six months when the fact of the goods being damaged had already come on record vide de-stuffing report date 7.4.2008. There was no need for them to have waited for the survey report before filing the refund claim under Section 27 of the Customs Act, 1962. Therefore, the contention of the Appellant that the limitation should be computed from the date of acceptance of the second joint survey is incorrect. - Decided against the assessee.
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Corporate Laws
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2014 (7) TMI 917
Mismanagement and oppression by the majority shareholder - appointment of Mr Gautam Agarwal as an Additional Director of the Company - petitioner has alleged that Mr Gautam Agarwal was only 20 years old the day he was appointed as an Additional Director. - Held that:- prima facieΈ established that the resources of the company have been used for the benefit of Smt Raj Kumari Agarwal and her family. And, the petitioners have apparently been excluded from the affairs of the company. - it will be appropriate that an administrator be appointed for overseeing the affairs of the Company - administrator appointed with certain guidelines and conditions.
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Service Tax
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2014 (7) TMI 942
Restoration of appeal - Non compliance of pre deposit order - Extension of time for making pre deposit - Held that:- In view of the stand taken by the learned advocates appearing on behalf of the respective parties as recorded hereinabove and in the facts and circumstances of the case and so as to see that on granting one additional opportunity to the respective appellant to make the deposit on pre-deposit as directed by CESTAT the appeals preferred by the respective appellants is considered on merits, we grant further time to the respective appellants to make the deposit of pre-deposit as directed by CESTAT earlier while passing the order dated 03-01-2012 /31-07-2012 in respective stay applications/stay orders i.e. ₹ 1.20 Crores to be deposited on or before 30/09/2014 and the balance amount of ₹ 30 lakhs to be deposited on or before 15/10/201 - Decided partly in favour of assessee.
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2014 (7) TMI 941
Power of tribunal to grant stay beyond the total period of 365 days - extension of stay granted earlier - extension order should be speaking or not - Held that:-in case and having satisfied that delay in not disposing of the appeal within 365 days (total) from the date of grant of initial stay is not attributable to the appellant / assessee in whose favour stay has been granted and that the Appellate Tribunal is satisfied that such appellant / assessee has fully cooperated in early disposal of the appeal and/or has not indulged into any delay tactics and/or has not taken any undue advantage, the learned Appellate Tribunal may, by passing a speaking order as observed hereinabove, extend stay even beyond the total period of 365 days from the date of grant of initial stay. However, as observed by the Honble Supreme Court in the case of Kumar Cotton Mills Pvt. Ltd (2005 (1) TMI 114 - SUPREME COURT OF INDIA), it should not be construed that any latitude is given to the Appellate Tribunal to extend the period of stay except on good cause and if the Appellate Tribunal is satisfied that the matter could not be heard and disposed of by reason of the fault of the Appellate Tribunal for the reasons not attributable to the assessee. It also may not be construed that the Appellate Tribunal can extend stay indefinitely. It also may not be construed that the Appellate Tribunal can extend stay indefinitely. On expiry of every 180 days the concerned assessee / appellant is required to submit an appropriate application before the learned Appellate Tribunal to extend the stay granted earlier and the Appellate Tribunal may extend the stay for a further period but not beyond 180 days at a stretch and on arriving at the subjective satisfaction, as stated hereinabove, the Appellate Tribunal may extend the stay even beyond 365 days from the date of grant of initial stay and even thereafter. - Thus, on expiry of maximum period of 180 days the assessee / appellant is required to submit application for extension of stay each time and the Appellate Tribunal is required to consider the individual case and pass a speaking order, as stated hereinabove - Following decision of Commissioner Versus Small Industries Development Bank of India [2014 (7) TMI 738 - GUJARAT HIGH COURT] - Matter remanded back - Decided partly in favour of assessee.
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2014 (7) TMI 940
Challenge to the Show Cause notice - writ petition - Commission to overseas agencies - reverse charge - Business Auxillary Services - Held that:- By the impugned notice, the petitioner was only called upon to submit their objections, if any. The show cause notice has been issued in compliance with the principles of natural justice and it cannot be said to be arbitrary or illegal. Therefore, the writ petition is disposed of with a direction to the petitioner to submit their explanation to the notice which is impugned in this writ petition along with necessary documents in support of their claim. - On receipt of such notice, the respondents shall afford an opportunity of hearing to the petitioner and then pass orders on merits and in accordance with law.
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2014 (7) TMI 939
Waiver of pre-deposit - appellant argued that the nature of services provided by the Railway and considering its status in law the Tribunal should not have directed payment of any sum of ₹ 25 lacs - Held that:- perusing Section 99 which came to be inserted by the Finance Act, 2013 with effect from 10.05.2013, we are of the opinion that the Appellants have made out a strong prima facie case and of complete waiver of a predeposit condition. The impugned order is, therefore, quashed and set aside. The application for stay/waiver of predeposit is allowed accordingly. - stay granted.
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2014 (7) TMI 937
Waiver of penalty u/s 80 - Penalty levied u/s 77 & 78 - delayed payment of service tax - Dry cleaning service - Held that:- The statutory levies cannot be obviated for so long merely because the computer was down. Further, even if the computer was down, the appellant could have filed the return manually and paid service tax by comuting the same manually as the total number of invoices involved during the entire period were less than 50. Further even if their untenable argument is considered for a moment, being aware that they have not paid service tax due and not filed statutory ST-3 returns for so long, if their bonafides were above board, they should / wouldhave atleast informed the department about it. It was only when the raid was conducted and they were caught that they admitted their violations. - penalty could not be waived - Decided against assessee.
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2014 (7) TMI 936
Erection of electricity transmission tower - Notification No.45/2010-ST dt. 20.7.2010 - Held that:- By Notification No.45/2010-ST dt. 20.7.2010 issued under Section 11C of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1944, the Central Government directed that the service tax payable on the taxable services relating to transmission and distribution of electricity provided by the service provider to the service recipient, which was not being levied in accordance with the said practice, shall not be required to be paid during the period upto 26.2.2010 for all taxable services relating to transmission of electricity and the period upto 21.6.2010 for all taxable services relating to distribution of electricity - demand of tax is for the period May 2006 to May 2007 relating to transmission of electricity - Therefore, demand not sustainable - Decided in favour of assessee.
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2014 (7) TMI 935
Membership of club or association service - Penalty u/s 77 - Appellate Commissioner granted partial relief by dropping penalty under Section 77 - Held that:- Following decision of M/s Federation of Indian Chambers of Commerce and Industry, M/s Electronic and Computer Software Export Promotion Council Versus CST, Delhi [2014 (5) TMI 183 - CESTAT NEW DELHI] - Decided in favour of assessee.
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2014 (7) TMI 934
GTA service - Exemption under Notification No. 34/2004-ST dated 03/12/2004 - obiter dicta - Held that:- Prima facie it appears that the appellant is not eligible for exemption because the entire goods transported by the GTA in the present consisted of only a single consignment and the freight charges for the single consignment exceeded ₹ 750/- and therefore, in view of the decision of this Tribunal in the case of Bellary Iron & Ores Pvt. Ltd. (2009 (12) TMI 150 - CESTAT, BANGALORE), the appellant is prima facie not eligible for the exemption. The reliance placed on the decision of the Hon'ble Bombay High Court deals with an obiter dicta. In the Bellary Iron & Ores Pvt. Ltd. case, the findings given therein are not obiter dicta of this Tribunal. The Tribunal discussed the entire notification and thereafter considered its scope and passed an order. Therefore, the same cannot be considered as an obiter dicta. As regards the reliance placed on the decision in the case of Gondal Prestressed Concrete, it is only an interim order and it is a settled position in law that interim order does not lay down any ratio. The appellant has also not pleaded any financial hardship - appellants have not made out any case for complete waiver of the dues adjudged against them - stay granted partly.
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2014 (7) TMI 933
Demand of service tax - Real estate agent service - Whether M/s. SRL have provided Real Estate Agent Service to M/s. SEL in terms of the Agreement between these two parties - Held that:- For a service to be covered under the definition of Real Estate Agent, it should be provided by a person to another person in relation to sale, purchase, leasing or renting of Real Estate. In the present case SRL, as indicated above in para 3, purchase/obtain lease of land in their own name. Further, they are not paid any commission by M/s. SEL. In fact the commission of 11% is received from the customers as consideration for the sale/lease, in addition to the cost of acquisition of land and other expenses. Thus, it cannot be said that they have provided any service to M/s. SEL in relation to purchase and further sale/lease of land to customers of M/s. SEL. As the definition of Real Estate Agent includes a real estate consultant, it needs to be examined whether the activity of M/s. SRL would come in the ambit of real estate consultant. From the fact on record advice is not provided by M/s. SRL to M/s. SEL. In fact, it is M/s. SEL, who provide technical inputs regarding suitability of land for wind farm projects, identify the suitable land and thereafter, as per the terms of the Agreement, ask M/s. SRL to acquire/lease such land. The land has to be free of any encumbrance before transfer of such land to the customers of M/s. SEL or to M/s. SEL themselves. All the regulatory approvals benefit the purchaser of land and expenses incurred thereon are recovered from the purchaser. Thus no real estate agent service can be said to have been provided by M/s. SRL to M/s. SEL. - Even the facilitation of loans by M/s. SEL to M/s. SRL for purchase of land and mortgage thereof is a financial arrangement between two which does not make M/s. SRL, real estate agent. Such financial arrangements and the exigibility to service tax thereof is not the issue here. The books of accounts of the appellants indicate that they hold large inventory of land. No consideration has been shown to be paid to M/s. SEL by M/s. SRL because no service is rendered by M/s. SRL to M/s. SEL. - M/s. SRL have not provided service of Real Estate Agent to M/s. SEL - Decided in favour of assessee.
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2014 (7) TMI 932
Transfer of tangible goods - service of Equipment Hire - Pipes rented out to farmers - Held that:- when pipes are handed over to farmers for use, it is natural that the assessee will not have control over its use that transfer of goods involve transfer of possession and effective control. Moreover it is the responsibility of the department to show that appellants have rendered a service which obligation has also not been fulfilled in this case. Renting of immovable property - Held that:- Demand relates to the period prior to the amendment of definition of service carried out in 2010 and therefore show-cause notice is time-barred. In view of the fact that there was a dispute about the liability and there were different opinions and retrospective amendment was brought in, appellant was entitled to bona fide belief and therefore the extended period could not have been invoked. As regards the service relating to Equipment Hire, assessee does not have any evidence in respect of this demand and therefore instead of remanding the matter prolonging the litigation he would prefer to pay the amount with interest and does not want to contest the demand. This is only on the ground that appellant does not want to undertake the search for documents etc. Appellants suggestion not to contest the demand for service tax in respect of Equipment Hire amounting to ₹ 49,148/- plus interest and request for waiver of penalty by invoking provisions of Section 80 of Finance Act 1994 is reasonable. the demand for service tax of ₹ 49,148/- with interest is confirmed as not contested. Demand for service tax on Immovable Property Renting is set aside on the ground of limitation. Decided partly in favour of assessee.
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Central Excise
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2014 (7) TMI 945
Cenvat Credit - Whether the Modvat Credit can be taken on the inputs, which were not suffered duty? - import of goods - allegation that CHA has committed fraud upon revenue - department argues that there is no credit of the customs duty - Held that:- The order in original does not indicate that the subject demand drafts have been credited to any other partys account. It is not in dispute that the amounts were credited to the Consolidated Fund of Union of India, in which event, it is not permissible for the Department to argue that no such amounts have been credited to the account of the Department. In that view of the matter, the finding of the Tribunal with respect to the payment of customs duty against the Bills of Entries Nos.4165 and 72430 is unexceptionable. Once the amount of customs duty having been paid is accepted, the entitlement of Modvat Credit cannot be denied. - Decided in favor of assessee.
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2014 (7) TMI 944
Waiver of pre-deposit - waste steam constitutes an input - generation of electricity - captive consumption as well as sale to outside parties - exemption notification No.4/97 - Held that:- Since the Tribunal has not had the benefit of considering the ambit and application of the aforesaid notifications, we consider it appropriate in the interest of justice to set aside the impugned order of the Tribunal and to restore the proceedings before the Tribunal for reconsideration of the application for stay afresh insofar as the order of pre-deposit on steam is concerned. - matter remanded back to tribunal.
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2014 (7) TMI 943
Job Work - SSI units - intermediate goods which come into existence in their factory premises which are not specified goods - exemption under notification no.83/1994-CE and notification no.8/2003-CE - extended period of limitation - Held that:- The argument taken by the appellant that for any duty liability on the intermediate goods, that come into the existence in appellant's factory, lies with the raw material supplier is not correct because as per the wording of the undertakings only duty liability with respect to the finished specified goods is required to be discharged by the raw material suppliers. The duty liability on the manufactured goods, which come into existence and are captively consumed for which exemption is not available under SSI exemption. - Decided against the assessee. Extended period of limitation - Held that:- Being in the manufacturing and job work of goods of Chapter 74 of the Central Excise Tariff Act, 1985 it has to be held that appellant was aware that brass billets / rods come into existence and that brass billets weighing upto 5 Kgs. and certain other goods of copper are not specified goods. In view of the above, the extended period under Section 11A of the Central Excise Act, 1944 is invokable in the present proceedings. - Demand confirmed - Decided against the assessee.
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2014 (7) TMI 927
Waiver of pre-deposit - Tribunal came to the conclusion that there was no evidence to prove the nexus of services with manufacturing activities of the Appellant/ Assessee. - Held that:- Tribunal has given some conclusive opinion on merits of the Appeal that we are of the opinion that once there was an arguable case, then, the rights and equities could have been balanced. The approach which preserves the right of appeal, so also, protects the interest of the Revenue could have been adopted. Appeal allowed by modifying the order of the Tribunal. The Appellant/ Assessee, therefore, would not be required to deposit a sum of ₹ 3.83 crores in cash. However, the Appellant/ Assessee shall deposit a sum of ₹ 1.25 crores in cash and furnish a bank guarantee of any nationalized bank for the balance sum, to the satisfaction of the Commissioner. - Decided partly in favor of assessee.
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2014 (7) TMI 926
Clandestine clearance - onus to prove - tribunal concluded that revenue has failed to establish the clandestine clearance of the goods by the assessee - respondent, inspite of it being admitted in its Settlement Application - application before settlement commission failed - Held that:- If the contention on behalf of the appellant is accepted, in that case, there is no question of further adjudication by the Central Excise Officer with respect to the amount admitted by the assessee while submitting the application before the Settlement Commission submitted under Section 32E(1) of the Act. Once the application or proceedings before the Settlement Commission fails, the Central Excise Officer is required to adjudicate the entire proceedings and show cause notice. - appeal dismissed - decided against the assessee.
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2014 (7) TMI 925
Waiver of pre-deposit - tribunal to consider prima-facie case or to study the matter in detail for considering the case in a stay application and reach the conclusion when the matter is pending before Commissioner (Appeals) - Held that:- Tribunal should not have gone into the entire details or the merits of the controversy in such particulars as possibly highlighted. Even if, the Tribunal has rendered a conclusion on the merits that we do not find to have been adequately clarified. The only submission in these two paragraphs which indicates that the Tribunal has taken a prima facie view is that the appellant has not made out any case for complete waiver of pre-deposit of the dues adjudged, that prior thereto, observations have been made and with regard to the applicability and contravention of the provisions of sub-rule (1) and sub-rule (3) of Rule 6 of the CENVAT Credit Rules, 2004. Tribunal has failed to exercise its jurisdiction in accordance with law. The impugned order is quashed and set aside. The appeal preferred by the assessee is restored to the file of the Tribunal for being heard afresh in accordance with law. Even if, detailed submissions are made by both the sides before the Tribunal, we would expect the Tribunal not to render a conclusive finding and opinion on the merits of the matter namely the pending appeal before the Commissioner. The Tribunal may refer to the arguments and some of the judgments which may be brought to its notice but we would expect it to be cautious and careful in not expressing any final opinion thereon - matter remanded back. - Decided in favor of assessee.
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2014 (7) TMI 924
Confirmation of demand without issuance of Show Cause Notice - demand in terms bond executed by them - principles of natural justice - demand under Section 28AB of the Customs Act, 1962 and Section 11AB of the Central Excise Act, 1944 - Held that:- If we accept the argument of the learned counsel for the respondent / revenue that in a case of this nature issuance of show cause notice is not required, meaning thereby, no hearing is to be given when a post decisional hearing was given, we are inclined to think that no post decisional hearing is required as there is no provision under law. Accordingly, we reject the said argument - this entire adjudication and consequent demand notice are absurd and in breech of principles of natural justice. - More so, they are noncompliant with the mandatory provision of the aforesaid Section. Matter remanded back to the adjudicating authority to decide the issue with an independent mind - Decided in favor of assessee.
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2014 (7) TMI 923
Compounded Levy Scheme - penalty for late deposit - Commissioner (Appeals) set aside the imposition of penalty for late deposit of duty from March 1998 to April 1999 on the ground that proceedings for the same were initiated after five years from the relevant date. - validity of erstwhile Rule 96(ZP) permitting imposition of penalty equal to the amount of duty for delay in payment of duty, without any discretion - Held that:- Tribunal had rightly upheld the order of Commissioner (Appeals) deleting the penalty for the period March 1998 to April 1999. - Decided against the revenue. In Raghuvar (India) Limited's case [2000 (5) TMI 40 - SUPREME COURT OF INDIA], the Apex Court held that any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor.
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2014 (7) TMI 922
Penalty for delayed payment of excise duty - delay in payment of duty is only a maximum of 8 days and the reasons for delay are either due to holding or temporary financial crisis. - compounded levy of duty on M.S. Ingots - erstwhile Rule 96ZO(3) - Held that:- The authorities below had accepted the fact that there is an impossibility of compliance of payment of duty on due date on account of 15-11-1998 being a Sunday. In other wards, the authorities below had consistently found that there was imminent justifiable reason and there was a genuine cause for the respondents inability to pay the duty amount on the due date. Decision in the case of K.S. VENKATARAMAN & CO. (P) LTD. V. STATE OF MADRAS [1965 (10) TMI 11 - SUPREME Court] followed - Any assessment made on the basis of such a void provision cannot be a decision under the provisions of the Act. Briefly stated, the procedural machinery under the Act can be utilized only to decide disputes that arise under the substantive provisions of the Act which are not ultra vires. - Decided against the revenue.
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2014 (7) TMI 921
Cenvat / Modvat Credit - Clandestine removal - allegation that the appellant had in fact purchased raw material in 27 third parties names and utilized the said raw material in manufacture of a dutiable product and cleared the finished product without payment of duty. - The modvat credit is sought to be denied to the appellant on the ground that the appellant had involved in suppressing the turnover. - Held that:- A perusal of the Rules would show that there is no rule prohibiting extending the benefit of modvat credit in a case where it is found that there was a suppression of manufacture and clearance of dutiable goods. - modvat credit to the extent of input utilized in manufacture of dutiable finished product is leviable and the benefit of the same cannot be denied. - Decided in favor of assessee.
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CST, VAT & Sales Tax
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2014 (7) TMI 931
Writ of Certiorarified Mandamus - Call for records - Violation of principle of natural justice - Held that:- Irrespective of the submissions made by either counsel, without going into the merits of the matter, based on the circulars dated 29.06.1999 and 28.02.2001, issued by the Commissioner of Commercial Taxes, Chennai, petitioner is directed to pay 10% of the tax within four weeks from the date of receipt of a copy of this order. On such payment, the respondent is directed to consider the representation of the petitioner dated 03.05.2014 on re-submission together with the Form-C and Form-H declaration forms and re- open the assessment and receive the declaration forms and pass orders in accordance with law, within a period of four weeks thereafter - Decided against assessee.
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2014 (7) TMI 930
Discount through credit note - whether the discount allowed by the appellant herein a retail dealer as per ordinary trade practice by way of credit note cannot be subjected to deduction from the sale price of the vehicle or not - Held that:- discount through credit note issued even subsequent to a sale without their mention in the sale voucher of the bill is permissible. It has been held that the claim for deduction of the amount of trade discount cannot be disallowed only on the ground that the discount amount were not shown in the sale invoice or the bills issued. Once allowing of discount is established from the material available on record, the same has to be allowed - appellants are entitled to deduction claimed for with regard to the discount allowed by them as a retailer based on ordinary trade practice by way of issuing credit note even without showing the same in the sale invoice or the bill - Following decision of IFB Industries Ltd. v. State of Kerala [2012 (3) TMI 66 - Supreme Court of India] - Decided in favour of assessee.
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2014 (7) TMI 929
Recovery of tax - Crystallization of demand is pending - Held that:- From the affidavit-in-reply filed by the respondents, we do not notice any ground permitting the respondents to start recovery at this stage. The insistence on collecting cheques from the petitioners, therefore, cannot be countenanced. Under the circumstances, the respondents shall return three cheques collected from the petitioner to them latest by February 28, 2014. This is without prejudice to the power of the competent authority to pass appropriate order, if so found necessary to protect the interest of the revenue - petition disposed of.
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2014 (7) TMI 928
Permits required of consignment of goods under the provisions of the TVAT Act - Time extension for producing permits - assessing officer did not grant such time and levied tax and penalty at 150 % - assessee did not challenge the assessment, but filed petitions for rectification of the orders in terms of section 74 of the TVAT Act - Held that:- Power of rectification is limited and is akin to a power of review. Any judicial or quasi-judicial authority can exercise powers of review when there is an error apparent on the face of the record. These are the words used in section 74 of the TVAT Act also. Normally as contended by the revenue authority, this court would not in rectification proceedings permit a party to lead fresh evidence nor would it permit a party to place material on record. This however, is subject to the caveat that the party, i.e., the assessee should have been originally given a reasonable opportunity of putting forth its case. If any party, despite being given a responsible opportunity of producing evidence and putting forth its case fails to lead evidence then in rectification proceedings it cannot be permitted to fill up the lacuna in the evidence. However, the present case stands on a different footing. Undoubtedly, in regard to one notice 6064 permits were required to be produced and with regard to the second notice 909 permits were required to be produced. The case of the assessee was that a fire had taken place in the office of the transport company and the record had been destroyed and it may be given time to produce the permits after collecting the same either from the dealers or even from the Department itself. Rectification orders deserve to be set aside. We further direct the Superintendent of Taxes, Vigilance Cell, Agartala, to re-consider the case of the assessee and he shall take into consideration all the copies of the permits which have been produced by the assessee and verify the same. If on verification, the permits are found to be correct no tax or penalty shall be levied in regard to those permits - matter remanded back - Decided in favour of assessee.
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Indian Laws
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2014 (7) TMI 938
Transfer of employees - Vacation of the interim order - Customs Department to Central Excise & Service Tax, and vice versa. - held that:- most of the employees whose names figured in the transfer list dated 21.02.2014 are not covered by the guidelines of transfer orders challenged before the Central Administrative Tribunal as they are locally transferred in Shillong from one formation to another for e.g. from Customs Department to Central Excise & Service Tax, and vice versa. Out of 28 employees, names figured in the transfer list, only 6 persons are transferred from one place to another - transfer order of the employees who are locally transferred from one formation to another formation of the Department of Customs, Central Excise and Service Tax Department, is not interfered with - However, in respect of 6 employees who are transferred to Dibrugarh and Guwahati, they shall not be relieved till the next date of listing of the writ petition, provided they are not already relieved - Decided partly in favour of applicants.
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2014 (7) TMI 916
Challenge to the order of Central Administrative Tribunal - oral termination - petitioner was orally appointed as a sweeper - petitioner completed more than 240 days of service - Held that:- When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. - writ petition, therefore, deserves to be dismissed on account of delay as well as on merits - decided against the petitioner.
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