Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
March 6, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Residential status of the assessee - as per revenue the assessee was a resident of India whereas the Tribunal held assessee to be Non resident of India - Order of ITAT sustained in favor of assessee - HC
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Registration u/s 12AA(3) cancelled - no evidence on the part of the department that the assessee had applied the rent received from the commercial property for non-charitable purpose - in favor of assessee - HC
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Review application - the High Court under Section 151 Code of Civil Procedure, 1908 cannot correct the said mistake for which the remedy lies in filing an appeal. - HC
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Order of ITAT - Tribunal was not required to give its independent finding when it had concurred with the findings of the Commissioner of Income Tax (Appeals). - HC
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Authorization for search - Status of assessee - existence of AOP/BOI - evidence of existence - after the amendment of the Act by insertion of Section 292 CC with retrospective effect from 1.4.1976, even if the authorization had been issued in the joint names of several persons, assessment in the individual names can be made - HC
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Reassessment u/s 147/148 - When the question of jurisdiction can be raised? - a question relating to jurisdiction which goes to the root of the matter can always be raised at any stage, be in appeal or revision - HC
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Addition - retraction of statement - It was voluntary and therefore, the retraction made after almost four years appears to be an afterthought, which had rightly been disbelieved by the Tribunal - HC
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Interest on Non SLR investments/CTR - cooperative banks who are carrying on banking business are entitled for deduction under Section 80P(2)(a)(i) of the Act - HC
Customs
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Levy of anti-dumping duty - complete battery cell - import of various items for manufacturing of dry battery cells - Not liable to anti dumping duty - Revenue directed to release goods - HC
Service Tax
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Reverse Charge - Levy of service tax on Intellectual property Rights (IPR) - Trade Mark License Agreement - Prmia facie case against the appellants - pre deposit ordered equal to 50%. - AT
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Service tax on Repair and maintenance of building belonging to the Ministry of Defence and did not involve any commercial element - appellant has not made out a prima facie case - pre deposit ordered partly - AT
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Cenvat Credit - Debit Note - Duty paying document - Rule 9 of CCR - appellant cannot be denied benefit of Cenvat credit without finding no deposit of service tax by service provider - AT
VAT
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Interest on refund - the long time spent by the authorities in getting the verification of the TDS certificate would not absolve them from making payment of interest as provided - HC
Case Laws:
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Income Tax
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2013 (3) TMI 77
Residential status of the assessee - as per revenue the assessee was a resident of India whereas the Tribunal held assessee to be Non resident of India - Held that:- Although, the assessee has, in the preceding 4 years been in India for a period in excess of 365 days in India, in none of years has he been in India for a period in excess of 182 days. Therefore, the Tribunal is absolutely right in concluding that the respondent/assessee was not a resident of India. This is a pure question of fact based on a plain reading of the provisions of section 6. All that has to be seen is the number of days that the respondent/assessee has spent in India in the year in question as also in the preceding 4 years. No substantial question of law arises insofar as this aspect of the matter is concerned - in favour of assessee. Unaccounted investments - additions made on the basis of documents allegedly found in the possession of 3rd parties - Held that:- Tribunal has rightly remanded this aspect of the matter in view of the fact that the respondent/assessee had not been granted an opportunity of cross examining the persons from whom the said documents had been allegedly recovered. The matter has been remanded to the assessing officer to examine this issue after giving an opportunity of cross-examination to the respondent/assessee. Payment made to the assessee’s estranged wife - addition deleted by the Tribunal - Held that:- Tribunal purely on an appreciation of facts & on noting that the assessee and his wife Smt Renu Nanda had separated by way of a deed of settlement dated 04.04.1998 and the payments were based thereon deleted the addition as it has not been based on any evidence or incriminating material indicating that any payment had been made outside the books. The Tribunal observed that the sole basis for the assumption on the part of the assessing officer was that there was some unwritten understanding between the assessee and his estranged wife. Thus the purported basis of the addition only a presumption is not acceptable - in favour of assessee. Addition u/s 68 - Cash credit - Held that:- As the Tribunal has correctly decided that the assessee was not a resident in India in the years in question, it is axiomatic that the addition under section 68 would have to be deleted because it was a transfer from the respondent/assessee’s foreign account to the domestic account - in favour of assessee.
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2013 (3) TMI 76
Registration u/s 12AA(3) cancelled - as per the revenue assessee in the assessment year 2005-2006 had invested in commercial property at Bangalore and it was not for a charitable purpose - Held that:- Tribunal had correctly appreciated the law and has come to the conclusion that the assessee was entitled under Section 11(5)(x) to invest in immovable property out of the funds which were surplus with it. The Tribunal has also concluded that there was no evidence on the part of the department that the assessee had applied the rent received from the commercial property for non-charitable purpose. That being the case, the registration under Section 12 A could not have been cancelled - in favour of assessee.
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2013 (3) TMI 75
Penalty u/s 271(1)(c) - As per the AO assessee had set off his loss against the amount of profit after claiming deduction under Section 80HHC whereas the deduction under Section 80HHC was allowable on the gross total income as defined under Section 80AB - Held that:- As decided in CIT Versus RELIANCE PETROPRODUCTS FVT. LTD. [2010 (3) TMI 80 - SUPREME COURT] mere making of a claim, which is not sustainable in law, would not, ipso facto, amount to furnishing inaccurate particulars regarding the income of the assessee and would, therefore, not automatically result in a penalty order against the assessee - in favour of assessee.
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2013 (3) TMI 74
Review application - as per the assessee the observations made in the last but one paragraph of the judgment are beyond the subject matter of dispute before the Court and the same ought to be recalled - Held that:- The question of law referred to had already been answered by this Court in favour of the assessee and against the Revenue. Whether the observations made in the judgment were required or not can be made the subject matter of appeal. The nature of jurisdiction of this Court in disposing of a Reference is an advisory jurisdiction which entitles the Court to exercise only those powers which has been conferred by the Act. Therefore, the High Court under Section 151 Code of Civil Procedure, 1908 cannot correct the said mistake for which the remedy lies in filing an appeal. As decided in CIT vs Radha Swami Satsang (1986 (9) TMI 25 - ALLAHABAD HIGH COURT) if the grant of an application results in reviewing the judgment, then it is not within the scope of Section 151 of the Code of Civil Procedure, 1908 and in advisory jurisdiction under Section 256 of the Act, the Court has no inherent power to review. The present application in effect seeks reviewing of our order dated 12.10.2006, therefore, it is not maintainable.
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2013 (3) TMI 73
Additional evidence - Rule 46A(3) - held that:- It has come on record that the documents which were filed before the Commissioner of Income Tax (Appeals) were already on record before the Assessing Officer which he failed to consider and, therefore, it is not a case of filing of any additional evidence but appraisal of evidence, which was already on record - the question of calling for a remand report does not arise. So far as the second contention that it was not a case of long term capital gain is concerned, we may mention here that the purchase of shares in question have not been doubted. The details of purchase of shares were already on record. Appeal against the order of ITAT dismissed - Decided in favor of revenue.
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2013 (3) TMI 72
Deletion of penalty imposed u/s 273(2)(a) - whether the ITAT ought to have recorded independent finding while confirming the order of the Commissioner of Income Tax (Appeals) - held that:- Income Tax Appellate Tribunal was legally right in not quashing the penalty proceeding under Section 273(2) of the Act on the ground that no such proceedings were proposed in the draft assessment order nor any direction under Section 144B of the Act was given by the Inspecting Assistant Commissioner of the Income Tax in his order to the Assessing Authority. Wrong estimation of advance tax - held that:- The provision of Section 273(2)(a) is attracted where an assessee furnishes estimate of advance tax payable by him which he knew or has reason to believe to be untrue. A thing which is in the knowledge or belief of an assessee, has to be proved by the assessee himself and not by the Revenue authorities. Thus, no benefit can be derived by the appellant from the aforesaid decision of the Hon'ble Supreme Court in the case of Sarabhai Holdings Pvt. Ltd. (2008 (10) TMI 12 - SUPREME COURT). There cannot be any quarrel with the principles laid down by the Bombay High Court in the case of Hind Products Pvt. Ltd. (1980) 121 ITR 903) and of the Calcutta High Court in the case of Birla Cotton Spinning & Weaving Mills Ltd. (1985 (1) TMI 15 - CALCUTTA HIGH COURT) wherein it has been held that the very word estimate implies presumptions and not accuracy and merely because at the end of the year an assessee is shown to have earned an income which is more than that shown in the estimate. The finding of the Income Tax Appellate Tribunal that the assessee has not been able to specify the reasons as to why it considered the depreciation in investment allowance on the machinery which was yet to be installed for computing the income liable to pay advance tax, is neither perverse nor vitiated in law. Tribunal recorded its agreement with the findings of the Commissioner of Income Tax (Appeals) and consequently upheld the order of the Commissioner of Income Tax (Appeals) on this point. - It cannot be said that the Tribunal had not applied its mind to the matter of merits and as the assessee had failed to refute the specific finding of the Commissioner of Income Tax (Appeals), the Tribunal had agreed with its finding. Tribunal was not required to give its independent finding when it had concurred with the findings of the Commissioner of Income Tax (Appeals).
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2013 (3) TMI 71
Authorization for search - Status of assessee - existence of AOP/BOI - evidence of existence - essential ingredients - held that:- after the decision rendered by this court in the case of Smt. Vandana Verma (2009 (10) TMI 52 - ALLAHABAD HIGH COURT), the Parliament stepped in and made retrospective amendment by inserting Section 292 CC w.e.f. 1.4.1976 by Finance Act, 2012. The effect of retrospective amendment made in the Income Tax Act came up for consideration before the Full Bench of this Court in the case of Commissioner of Income Tax vs. Devesh Singh (2012 (8) TMI 98 - ALLAHABAD HIGH COURT) and the Full Bench of this Court has held that after the amendment of the Act by insertion of Section 292 CC with retrospective effect from 1.4.1976, even if the authorization had been issued in the joint names of several persons, assessment in the individual names can be made. - Decided in favor of revenue.
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2013 (3) TMI 70
Jurisdiction to issue notice u/s 147/148 - when the question of jurisdiction can be raised? - held that:- (i) a question relating to jurisdiction which goes to the root of the matter can always be raised at any stage, be in appeal or revision, (ii) initiation of proceedings under section 147 of the Act and/or service of notice are all questions relating to assumption of jurisdiction to assess escaped income, (iii) if an issue has not been decided in appeal and the matter has simply been remanded, the same can be raised again notwithstanding with the fact that no further appeal has been preferred, (iv) in the reassessment proceedings, relief in respect of item which was not originally claimed cannot be claimed again as the reassessment proceedings are for the benefit of the Revenue and (v) relief can only be claimed in respect of the escaped income. The approach of the Commissioner of Income Tax (Appeals) is erroneous in law for the reason that in the grounds of appeal filed against the order dated 21.03.1997, a specific ground relating to validity of proceedings initiated under section 148 of the Act had been taken which was not gone into by the Commissioner of Income Tax (Appeals) while setting aside the assessment. The principles laid down by the Apex Court in the case of Sun Engineering Works P. Ltd. (1992 (9) TMI 1 - SUPREME COURT) would not apply as the appellant is not claiming any deduction or relief on the taxibility of any item in the reopened assessment proceedings which had not been claimed in the original assessment. The Tribunal had also erred in law in holding that as no appeal had been filed by the appellant against the order 05.02.1998 passed by the Commissioner of Income Tax (Appeals), the same had become final and the appellant cannot be permitted to raise any ground relating to the validity of the proceedings under section 148 of the Act in the remand proceedings. Tribunal has erred in law in so far as it refused to permit the appellant to raise the ground Nos. 1 to 4 and, therefore, the same cannot be sustained. - matter remanded to ITAT - Decided in favor of assessee.
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2013 (3) TMI 69
Addition - retraction of statement - undisclosed income - The Tribunal vide the impugned order has held that after almost four years, retraction has been made which cannot be said to be bonafide and therefore, the Assessing Officer was justified in assessing the income of Rs. 10 lakhs as undisclosed income, which was surrendered at the time of search. - held that:- It is not the case of the appellant that the surrender of Rs. 10 lakhs as undisclosed income was obtained by the departmental authorities under coercion or any threat. It was voluntary and therefore, the retraction made after almost four years appears to be an afterthought, which had rightly been disbelieved by the Tribunal. - Decided against the assessee.
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2013 (3) TMI 68
Interest on Non SLR investments/CTR - whether would qualify for deduction u/s 80-P(2)(a) - Whether the investments made outside permissible limits of the Regional Rural Bank would qualify to be "Bank Business" - Held that:- As decided in CIT, Ghaziabad v. Ghaziabad Zila Sahkari Bank, Ghaziabad [2013 (1) TMI 553 - ALLAHABAD HIGH COURT] & [2013 (1) TMI 552 - ALLAHABAD HIGH COURT] cooperative banks who are carrying on banking business are entitled for deduction under Section 80P(2)(a)(i) of the Act - in favour of assessee.
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Customs
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2013 (3) TMI 67
Levy of anti-dumping duty - complete battery cell - import of various items for manufacturing of dry battery cells - whether the petitioners are correct in contending, as they do, that anti-dumping duty is not recoverable from them in respect of the products which they have imported from the People’s Republic of China. - held that:- The anti-dumping investigation by the authorities and the findings of the designated authority were in the context of damage or injury by depressed pricing of goods i.e. dry cell batteries imported from China. Those goods were whole dry cells. The designated authority advisedly did not enter into any investigation as to the components and the likelihood of injury by importation of such components from China. Had the authorities intended that dry cell battery components of the kind imported by the petitioners in this case ought to be subjected to anti-dumping duty, (which is discriminatory in nature) that intention would have been expressed in the notification. Its absence renders the clarification made by the Central Board of Excise and Customs dated 6-12-2010 relied upon by the customs in this case, without authority of law. - In favor of assessee.
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2013 (3) TMI 66
Transaction value of imported goods - matter was reviewed and the appellant was asked to produce evidence to show that the relationship has not influenced the transaction value in respect of the present Bills of Entry. - held that:- From the records it is seen that in both the SVB orders passed in 2002 and 2005, the department had accepted the transaction value declared by the appellant on the ground that the relationship did not influence the transaction value. However, in 2008, they have made departure from the previous practice without having any reason for taking a different stand. From the records it is seen that the appellant was asked about the prices declared for third party imports. They had also produced evidences by way of invoices of the imports made by third parties and also reasons why the prices declared by them is lower when compared to those declared by the third parties. Matter remanded back to the original adjudicating authority to consider the information furnished by the appellant.
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Corporate Laws
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2013 (3) TMI 65
Winding up petition - two manufacturing facilities not having functioned for years and its workers and employees imploring for their dues to come out of the assets of the company upon the company being wound up - Held that:- The company admits that there has been no production at its manufacturing facilities at Sahaganj and Ambattur for several years and has been completely closed for more than a year. The company also admits that notwithstanding its settlement with a number of creditors, it is evident that the majority creditors in value press for the company to be wound up. The company’s offer to pay Rs.50 lakh per month to its workers is laced with a condition that it must have a chance to open its manufacturing facilities and the court must facilitate the same. The State Government says that the land which is blocked in the unproductive Sahaganj unit of the company should be freed for industrial activity thereat and the State Government is open to either the company commencing industrial activity thereat or any subsequent purchaser of the company’s assets doing so. It must be recorded that several parleys were held between the representatives of the State Government and the company for opening the Sahaganj unit, but nothing has come of the conciliation proceedings following the company’s staunch refusal to put any concrete proposal on the table for the payment of the workers’ dues. The State Government refers to the affidavit filed in course of the present proceedings saying that its electricity utility has a claim of Rs.11.20 crore in respect of the Sahaganj factory, the West Bengal Development Corporation Limited has a claim of Rs.14 crore, and a sum in excess of Rs.7.95 crore is due by way of land revenue apart from sales tax dues in excess of Rs.40 crore. Also provident fund authorities suggest that a siezable sum in crores is due from the company but quantification of the amount has not been made. The appearing workers of the company that an amount in excess of Rs.46.27 lakh is due from the company as at December 31, 2012. The company suggests that it has reached a settlement with its creditors who had come to court and who have a combined principal claim of about Rs.32 crore. The company has made no attempt to detract from the claims of the various creditors who are represented in court and seek the winding-up of the company. Since the company’s manufacturing facilities are not operational and the company does not demonstrate that they are likely to be opened or any manufacturing activity conducted thereat in the near future, there is no indication of how the massive debts of the company would be met. Despite directions, the annual accounts of the company have not been produced. It must also not be forgotten that the net worth of the company effectively remains negative since it only revalued its assets to create the illusion of a positive net worth on paper to slip out of the BIFR, but there were no profits or share premia to back the apparent improvement in the company’s net worth position. No workmen or employee of the company has appeared to resist the order of winding-up. The conduct of those in management of the company in fraudulently selling off assets conservatively estimated at Rs.2,300 crore makes it just and equitable for the company to be wound up. The company has been unable to show any prospects of it carrying on any business in the near or the distant future. The company’s inability to pay its debts is established and no ground is shown for the company court to exercise its discretion to not wind up the company despite its obvious insolvency. Company Dunlop India Limited is directed to be wound up with immediate effect under the provisions of the Companies Act, 1956. The official liquidator will forthwith take charge of all books, records, documents, assets and transactions of the company, now in liquidation.
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Service Tax
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2013 (3) TMI 82
Reverse Charge - Levy of service tax on Intellectual property Rights (IPR) - Trade Mark License Agreement - whether only a registered trademark has a right under any law for the time being in force In India and whether any law other than enacted law In force In India will come within the meaning of “any law for the time being in force - held that:- we are not in agreement with the argument of the appellant in view of Section 11(3) of the Trademarks Act, 1999 and Section 27(2) of the said Act in view of the fact that the trademark owner is legally entitled to enforce certain rights against any other person using such trademark even though the trademark Is not registered In India. Prmia facie case against the appellants - pre deposit ordered equal to 50%.
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2013 (3) TMI 81
Levy of service tax on AAI - airport or a civil enclave - since service tax was demanded by the Service Tax Authorities from the respondent AAI, the respondent AAI in turn raised demand on the petitioners and which has resulted in filing of these petitions - held that:- since the petitioners as well as the respondent AAI, both are challenging the very leviability of service tax on the subject transaction and further since the appeal against the order levying the service tax is pending consideration and in adjudication of which appeal, the questions as raised herein will necessarily have to be decided, and yet further since the said appellate fora is the appropriate fora to decide the said questions, it is not necessary for the same to be decided by us.
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2013 (3) TMI 80
Service tax on Repair and maintenance of building - assessee contended that repairs/maintenance pertains to a property belonging to the Ministry of Defence and did not involve any commercial element, they were exempted - revenue contended that demand of service tax is under ‘Repairs or Maintenance Service’, the definition of which does not distinguish properties used for commerce or industry from those not put to such use. It is further submitted that the activity in question was undertaken by the appellant mostly on movable properties and therefore they cannot claim the benefit of the clarification of Ministry of Finance (MOF) referred to in para 12 of the Tribunal’s Order in National Refrigeration case. Held that:- appellant has not made out a prima facie case - pre deposit ordered partly.
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2013 (3) TMI 79
Cenvat Credit - Debit Note - Duty paying document - held that:- Rule 9 of Cenvat Credit Rules, 2004 is a compendium Rule to deal Cenvat credit relating to goods and services. Invoices are normally issued for the goods cleared under Central Excise Rules, 1944. Similarly Bill of Entry is issued under Customs Act, 1962. Certificate is issued by Appraiser of Customs. A document issued in terms of Rule 9(1)(f) of Cenvat Credit Rules, 2004, i.e. an invoice, a bill or challan are used to claim Cenvat credit. Apart from that, there is a document issued under Rule 4A of Service Tax Rules, 1994 by distributor of input services to enable the beneficiary to get Cenvat credit. By express provision of law, legislature has used three terms i.e. ‘invoice’, ‘bill’, and ‘challan’ in Rule 9(1)(f) of Cenvat Credit Rules, 2004. Once assessable value of service provider is intended to include even the reimbursement of expenses, the appellant cannot be denied benefit of Cenvat credit without finding no deposit of service tax by service provider. - At the interest of Revenue, if the Adjudicating Authority so chooses he may send copies of debit note relied by Assessee to the concerned jurisdictional officer for verifying whether the service tax realised by those debit notes have gone in to the treasury. - Decided in favor of assessee.
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Central Excise
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2013 (3) TMI 85
Direction to deposit 50% of the duty confirmed for entertaining the appeal against the order-in-original in 2012 (7) TMI 509 - CESTAT, MUMBAI - Pre-delivery inspection and free after sale charges added to the transaction value of the motor vehicles manufactured - Held that:- As decided in Tata Motors Ltd. Vs. Union of India and another (2012 (9) TMI 244 - BOMBAY HIGH COURT) notification quashed issued by the revenue in that behalf thus PDI and free after sale charges not to be added to the transaction value. Fit case where the appeal should be heard on merits without insisting for any pre deposit.
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2013 (3) TMI 64
Condonation of delay - allegation of Registry failed to discharge its duty according to the procedure prescribed by Chapter 4 of Judicial Manuals in respect of receipt of appeal memo for which members of the Bar are harassed - Held that:- Bar is an integral part of justice delivery system thus the members of the Bar shall not be caused hardship by the Registry by a set of procedure not prescribed by Judicial Manual. With this to conclude the matter stating that Registry is to act according to the procedure laid down in Chapter 4 of Judicial Manual and prevent further discontent of Bar. Insofar as COD application are concerned, that matter is open for argument by both sides on 21st December, 2012.
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2013 (3) TMI 63
Non-deposit of amount as directed while disposing of their Stay Application - assessee submitted that there was 25 days delay in filing the appeal - Held that:- As find from the records that while filing the Appeal Commissioner the Appellant has made a request for condonation of delay of 25 days even though he has made observation on the said delay in his order dated 12.03.2012, but no order condoning the delay was passed by him nor the Appeal was dismissed on the ground of time bar. The Appeal was simply dismissed on the ground of non-compliance with the provisions of section 35F of Central Excise Act, 1944. Thus the said order is contradictory in nature as at one place it was observed that there was a delay of 25 days and while dismissing the Appeal it was observed that the Applicant failed to comply with the provisions of Section 35F of Central Excise Act, 1944 without discussing the fact of delay in filing the Appeal. In these circumstances the impugned order is set aside and the matter is remanded back to decide the issue afresh after disposing of their Application seeking condonation of delay. In favour of assessee by way of remand.
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2013 (3) TMI 62
Non-compliance of provisions of section 35F of Central Excise Act, 1944 - Held that:- On going through the records it is find that assessee have enclosed a copy of GR-7 Challan wherein entire directed amount has been deposited by them on 02.03.2012. In these circumstances the impugned order passed by the Commissioner(Appeals) for non-compliance of provisions of section 35F is set aside and the case is remitted to back to decide the issue afresh without insisting any further pre-deposit.
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2013 (3) TMI 61
Condonation of delay rejected - seeking stay on demand - Held that:- Demand of duty was worked out in view of the impugned order passed by the adjudicating authority deciding the classification issue and appellant were directed to pay the same. As on one hand they have sought stay against recovery of the impugned demand while on the other hand in the proforma filled up by them for filing the appeal, the said amount has been claimed as refund without disclosing the appropriate payment particulars of the same. Thus, there appear contradictions in the above discussed facts on record. Moreover, as find that before the Hon'ble High Court of Delhi, the appellant has submitted that they have deposited the entire amount of the tax demanded as is recorded in the Order dated 1st February, 1989, while they have now sought stay against the said recovery. In view of the above discussed contradictions and incomplete disclosures relating to the payment of duty, the stay application filed by the appellant is also liable to be dismissed without further discussion. As the appellate authority has observed that on one hand they make a submission before Delhi high Court claiming for refund of deposit made towards demand and on the other hand they have filed stay petition for dispensing with the pre deposit. Learned advocate further submits that if an opportunity would have been given to them he would have satisfied the Commissioner (Appeals) as regards the deposit made. Thus set aside the impugned order and remand the matter to the Commissioner (Appeals) for fresh decision on the point of limitation as also on the point of pre-deposit of dues.
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CST, VAT & Sales Tax
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2013 (3) TMI 84
Refund of excess TDS - assessee demanded refund an amount along with interest @ 18% from the date of assessment order till the date of refund voucher - Held that:- As decided in Triveni Fuels, Allahabad [2005 (5) TMI 609 - ALLAHABAD HIGH COURT] it is the obligation and statutory duly of the Assessing Authority to refund to the dealer any amount of tax, fee or other dues which have been paid in excess of the amount due from him under the Act. However, before refunding the amount Assessing Authority is enjoined upon to adjust the same towards the tax or any other amount outstanding against the dealer under the Act or under the Central Sales Tax Act and only the balance, if any, is to be refunded. The State legislature has also taken care of the delay, if any caused in making the refund. Explanation I provides that the date of refund shall be deemed to be the date on which intimation regarding preparation of the refund voucher is sent to the dealer & if the amount refundable is not refunded within three months from the date of the order of refund then interest @ 18% per annum is payable from the date of the order or the receipt of the order. Applying these principles to the facts of the present case it is found that the long time spent by the authorities in getting the verification of the TDS certificate would not absolve them from making payment of interest as provided under section 29(2) of the Act and the petitioner cannot be made to suffer for no fault of it - the petitioner is entitled for interest @ 18% per annum from the date of assessment order till the date of refund within a month from the date a certified copy of this order is produced before the said authority.
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2013 (3) TMI 83
Revised assessment order - demand notice issued - assessee contested against non acceptance of Rule 10(2) of KVAT Act - Held that:- AO has completed the revised assessment, after dealing with each one of the contentions raised by the petitioner. Therefore if their contention regarding interpretation of Rule 10(2) has not been accepted by the Assessing Officer and if the petitioner is aggrieved by that finding, it is for the petitioner to invoke their remedies in accordance with the statute itself and there is no reason to entertain the writ petition challenging the assessment order - against assessee.
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Indian Laws
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2013 (3) TMI 78
RTI application to sought information of the appointment of the Indirect Tax Ombudsman - Appellant objected that CPIO of the Cabinet Secretariat had transferred his RTI application to his counterpart in the office of the Establishment Officer in the Department of Personnel and Training, though very belatedly - Held that:- As far as the Appellate Authority is concerned, he was wrong in not giving an opportunity of hearing to the Appellant when he had asked for it specifically. The CPIO in the office of the Establishment Officer had provided some information to the Appellant but had not given access to the file noting in the said file, thus without the file noting, it is not clear to him what action the authorities had taken on his complaint. No reason has been assigned for not showing the file noting or for not giving it to the Appellant. Therefore, direct the CPIO in the office of the Establishment Officer to provide to the Appellant within 10 working days from today the photocopy of the file noting from the relevant file from which some other records had already been given to him earlier.
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