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HIGH COURT JUDGMENTS 2010

 

AIT-2010-574-HC
M/s G.S. Promoters Vs. Union of India & others

Service Tax: This petition seeks declaration that explanation to Section 65(zzzh) of the Finance Act, 1994 and CBEC Circular No.334/3/2010-TRU dated 1.7.2010 are unconstitutional. As per explanation added to Section 65(zzzh), vide Finance Act, 2010, construction of complex by a builder or any person authorized by the builder, is deemed to be service by the builder to buyer.

AIT-2010-575-HC
J.K. Corporation Limited Vs. CIT, Calcutta

(A) Whether, on the facts and in the circumstances of the case and on correct interpretation of scope and ambit of Sections 18(7) and 19(2) of SIC (Special Provision) Act, 1985 and harmonious construction of the above said provision of SIC (Special Provision) Act 1985, the Tribunal was correct in law in holding that the sanctioned scheme shall be conclusive evidence of the said requirements regarding consent of Central Government/CBDT having been complied with as required in Section 19(2) and mentioned in CBDT Circular No. 583 dated 8th May 1994?

AIT-2010-576-HC
M/s Ganesh Agro Vs. Union of India and others

whether assessment of duty under Section 17(2) read with the rules or provisional assessment under section 18 is permissible solely on the basis of norms fixed by the Commissioner of Customs, Nhava Sheva ignoring genuine transaction value or the provisions of the rules.

AIT-2010-578-HC
Home Solutions Retails Ltd. Vs. Union of India & Ors.

Service Tax: Service tax on renting of immovable property-In this batch of writ petitions, the basic prayer is to declare Section 65(90a) read with Section 65(105)(zzzz) of the Finance Act, 1994 (for short “the Act”) as amended by the Finance Act, 2007, Finance Act 2008 and Finance Act, 2010 as ultra vires the Constitution of India as there is colourable exercise of power inasmuch as the Legislature does not have the legislative competence in this field as it basically pertains to List II of the Seventh Schedule of the Constitution of India.

AIT-2010-579-HC
M/s Bajaj Travels Limited Vs. CCE, Chandigarh

Service Tax: penalty imposed under Section 78(1) of Finance Act, 1994 can be reduced to 25% by invoking the provisions of First Proviso to Section 78(1) when the assessee has not paid 25% of the penalty amount within 30 days of the order as required under the second proviso to Section 78(1) ibid.

AIT-2010-581-HC
J M Baxi & Co. Vs. CCE and C, Ahmedabad

Service Tax: the Tribunal did not committ error in treating the voluntary payment made by the respondent to avoid interest penalty, as pre-deposit under section 35-F of the Central Excise Act, 1944 and accordingly, the refund of the same not subjected to the test of unjust enrichment

AIT-2010-582-HC
M/s Cool Tech. Corporation Vs. CCEC, Chandigarh

Service Tax: CESTAT was right in not imposing penalty under section 76 of the Finance Act, 1994 for the period to 16.5.2008 holding that penalty under section 76 & 78 of the Act is not imposable simultaneously, both section being mutually exclusive, particularly when these sections became mutually exclusive only from 16.5.2008 after amendment of section 78 of the Finance Act, 1994

AIT-2010-584-HC
Leighton Contractors (India) Pvt. Ltd. Vs. Union of India

the petitioner having already filed its claim for drawback in the prescribed form, which has been allowed by the Commissioner (Appeals), the respondent No.5 is duty bound to treat the original application made by the petitioner under sub-rule (1) of rule 5 of the Rules as having been allowed and to grant the duty drawback. Insistence on part of the respondent No.5 that the petitioner should file a fresh application under sub-rule (1) of rule 5 of the Rules, is contrary to the provisions of the Act and the Rules, and the petitioner appears to be justified in contending that such stand has been adopted only with a view to deny the petitioner the benefit of interest under section 75A of the Act.

AIT-2010-586-HC
M/s Lachman Dass Bhatia Hingwala (P.) Ltd. Vs. ACIT, New Delhi

Larger Bench: whether the tribunal has the power to recall the order in entirety under Section 254(2) of the Act - (A) The decision rendered in Honda Siel Power Products Ltd., (supra) by the Apex Court is an authority for the proposition that the Income-tax Appellate Tribunal under certain circumstances can recall its own order and there is no absolute prohibition. - (B) In view of the law laid down in Honda Siel Power Products Ltd., (supra) by the Apex Court, the decisions rendered by this Court in K.L. Bhatia (supra), Deeksha Suri (supra), Karan and Co. (supra), J.N. Sahni (supra) and Smt. Baljeet Jolly (supra) which lay down the principle that the tribunal under no circumstances can recall its order in entirety do not lay down the correct statement of law.

AIT-2010-588-HC
M/s Sociedade de Fomento Industrial Ltd. Vs. CIT, Karnataka

Whether the interest of Rs.9,92,199/- received from Bank and interest of Rs.90,31,279/- received from intercorporate deposits earned out of surplus funds by the assessee, is income from the business for the purpose of computing deduction under Section 80HHC.

AIT-2010-590-HC
M/s. Devsons Pvt. Ltd. Vs. CIT and Ors.

ITAT was not right in law in holding that there was change in the method of accounting introduced by the assessee without any justifiable reason. The further findings recorded by the ITAT that there was no evidence regarding the payment of Rs. 36,17,980/- by the assessee to the sub-contractors in connection with the execution of the garbage work is also perverse.

AIT-2010-592-HC
M/s Hindustan Hotels Ltd. Vs. CIT, Goa

Tribunal was right in holding that the capital gain arising out of the sale the lease hold interest in the land in incomplete building will have required to be bifurcated into the gain arising out of a sale of lease hold interest in the land and the sale of the incomplete building. - the finding of the ITAT based on the approved valuer's estimate, that the value of the super structure as on the date of transfer is to be adopted at Rs.2.15 crores, out of which after deducting 1.85 crores being actual cost of construction, capital gain of Rs.30,00,000/- has to be apportioned between long term capital gain, and short term capital gain in the ratio of expenditure incurred by the assessee within three years or beyond three years, is justified.

AIT-2010-593-HC
M/s. Indo Tech Electric Co. Vs. DCIT, Chennai

the Tribunal was right in holding that a sum of Rs.1,25,00,000/- representing the value of technical know-how is liable to tax under the head Long Term Capital Gain the context of Section 45 read with Section 55 of the Income Tax Act, 1961.

AIT-2010-594-HC
M/s Rajendra Prasad Subhash Chand Vs.
Union of India

ITAT was justified in having confirmed the invocation of Section 69 & 69A in the present facts when the amounts under consideration were not only duly entered in the books of account when they were completed but were also duly surrendered by the appellant in its return of income.

AIT-2010-595-HC
M/s Aravali Engineers (P) Ltd. Vs. CIT and another

ITAT was not in error in disallowing the appellant from raising an additional issue, contrary to ratio of Supreme Court in National Thermal Vs. CIT when all evidence for adjudicating the same was placed before it.

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