Andhra Pradesh HC

No GST on value of by-products i.e., broken rice, bran & husk by treating as part of milling charges: HC

Shiridi Sainadh Industries Vs Deputy Commissioner ST INT (Andhra Pradesh High Court)

Shiridi Sainadh Industries Vs Deputy Commissioner ST INT (Andhra Pradesh High Court) Writ Petition is allowed and the impugned Assessment Order passed by the 1st respondent vide Ref. No.CGST/ 2017-18/05 dated 29.10.2018 in so far as it relates to the levy of GST on the value of by-products i.e., broken rice, bran and husk treating [&helli...

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Enable petitioner to again file Form GST TRAN-1: HC

Sattibabu Motors Private Limited Vs Assistant Commissioner Of Central Tax (Andra Pradesh High Court)

Sattibabu Motors Private Limited Vs Assistant Commissioner Of Central Tax (Andra Pradesh High Court) Writ Petition is disposed of in terms thereof directing the respondents to either open the portal to enable the petitioner to again file the Form GST TRAN-1 electronically or in the alternative, accept the Form GST TRAN-1 presented manuall...

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Open GST Portal to enable petitioner to again file Form GST TRAN-1

Garuda Packaging Pvt Ltd Vs Assistant Commissioner Of Central Tax (Andhra Pradesh High Court)

Garuda Packaging Pvt Ltd Vs Assistant Commissioner Of Central Tax (Andra Pradesh High Court) Writ Petition is disposed of directing the respondents to either open the Portal to enable the petitioner to again file the Form GST TRAN-1 electronically or in the alternative accept the Form GST TRAN-1 presented manually, on or before 30.09.2019...

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Allow filing of Form GST TRAN-1 again: HC

Lantech Pharmaceuticals Ltd., Srikakulam Vs Prl. Commissioner, Visakhapatnam (Andhra Pradesh High Court)

Lantech Pharmaceuticals Ltd. Vs Prl. Commissioner (Andhra Pradesh High Court) Hon;ble High Court disposes Writ Petition directing the respondents to either open the Portal to enable the petitioner to again file the Form GST TRAN-1 electronically or in the alternative accept the Form GST TRAN-1 presented manually,on or before 31.08.2019. I...

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HC Allows to Submit Form GST TRAN-1 before 30.09.2020

Kun United Motors Pvt. Ltd Vs Assistant Commissioner of Central Tax GST Cell (Andhra Pradesh HC)

The issue under consideration is whether assessee is allowed to file Form TRAN-1 manually with department due to technical glitches with the GST online portal?...

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No Service Tax on supply of subsidized food to workers by employer

Bhimas Hotels Pvt. Ltd. Vs. Union of India (Andhra Pradesh High Court)

Bhimas Hotels Pvt. Ltd. Vs. Union of India (Andhra Pradesh High Court) any supply of subsidized food to the workers by the management of a Company, has to be seen as part of the pay package that the workers have negotiated with the employer. Under the Factories Act, 1948 and even under the Industrial Disputes […]...

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HC allows GST Appeal filed Manually as valid Appeal

M/s Sri Siddhi Kalko Bhagavan Stone Crusher Vs The Assistant Commissioner ST (Andhra Pradesh High Court)

M/s Sri Siddhi Kalko Bhagavan Stone Crusher Vs The Assistant Commissioner ST (Andhra Pradesh High Court) In this Writ Petition, under Article 226 of the Constitution of India, the challenge is to the rejection order, dated 22.09.2018, of the learned Appellate Joint Commissioner (ST), Vijayawada, whereby the appeal of the petitioner was re...

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Allow to submit GST TRAN- 1 Form electronically or manually: HC

M/s. Sri G K Exim Vs The Deputy Commissioner (Andhra Pradesh High Court)

M/s. Sri G K Exim Vs Deputy Commissioner (Andhra Pradesh High Court) In W.P. No. 3298 of 2019, a similar issue came up before the Division Bench of this Court for consideration. Relying upon the judgments in Uninav Developers Pvt Ltd., v. Union of India & Others [2019-VIL-367-DEL], Bhargava Motors v. Union of India [2019 […]...

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GST: Prohibition Order passed by DC without authorization is invalid

Mahendra Kumar Indermal Vs Deputy Assistant Commissioner (ST) (Andhra Pradesh High Court)

Mahendra Kumar Indermal Vs Deputy Assistant Commissioner (Andhra Pradesh High Court) As per the provisions of Section 67(1) of the Act, power of inspection is specified to an officer not below the rank of joint commissioner. The said officer for the purpose of search as specified in Section 67(1) (a) and (b) may authorize in […]...

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Orders Passed without Fair Opportunity during Lockdown violates Principle of Natural Justice

Walchandnagar Industries Limited Vs Commercial Tax Officer (Andhra Pradesh)

Assessment Order passed by the Respondent under the provisions of the Andhra Pradesh Value Added Tax Act 2005 in AO No 207184 dated 17.04.2020 for the period 06/2014 to 03/2016 as illegal, arbitrary, bad in law without jurisdiction and bereft of any valid reasons violative of principles of natural justice and violative of Articles 14, 191...

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Allow manual filing of Tran-1 or Open GST Portal: HC

Maturu Panchakshari Vs Assistant Commissioner of State Tax (Andhra Pradesh High Court)

Maturu Panchakshari Vs Assistant Commissioner of State Tax (Andhra Pradesh High Court) The GST regime which came into effect from 01.07.2017 repealed a host of indirect taxes which were previously in force. Section 140 of SGST Act provides for transfer of the amount of Value Added Tax Credit carried forward under the APVAT Act, 2005 [&hel...

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HC allows Filing of GSTR 9 & GSTR 9C without late fees & penalty until further order

All India Federation of Tax Practitioners Vs Union of India (Andhra Pradesh High Court)

All India Federation of Tax Practitioners Vs Union of India (Andhra Pradesh High Court) Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, order or direction particularly in the nature of Writ of [&he...

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AP HC stays recovery of Section 50 Interest on ITC under GST

Srinidhi Marketing Vs Union of India (Andhra Pradesh High Court)

Considering facts that as per Section 50 of the Central Goods and Services Act, 2017, interest is payable on the delayed payment of tax and that as per the interest statement filed along with the impugned letter, dated 07.02.2020, there was delay in filing GSTR-3B and hence, interest on 'cash set off' and 'ITC set off' has been calculated...

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Accept C ‘Form’ even if Assessment orders already been passed by AO

Vyplavi Granites Vs CTO (Andhra Pradesh High Court)

It is a fit case where the relief sought for by the petitioner can be granted to the extent of directing the authority to reopen assessment filed by the petitioner through letter, dated 2.5.2017 and deal with the acceptance of the documents, more particularly, 'C' form and 'II' form declarations and then pass orders in accordance with law...

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HC permits manual rectification of GSTR-3B

M/s. Panduranga Stone Crushers Vs. Union of India (Andhra Pradesh: Amaravati)

M/s. Panduranga Stone Crushers Vs. Union of India (Andhra Pradesh: Amaravati) Petitioner is permitted to rectify GSTR-3B statements for the months of August and December, 2017 and January and February, 2018 manually subject to the outcome of the writ petition. It is made clear that if the petitioner submits a rectified statements for the ...

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Tax deducted is income received U/s 198 of the IT Act

Sri Y. Rathiesh V. CIT (Andhra Pradesh High Court)

Whenever an amount deducted as tax at source becomes incapable of being being adjusted or counted towards tax payable, it acquired the character of an  income. In such an event, it partake the character of any other income and is liable to be dealt with accordingly....

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No addition U/s 68 in respect of gift received from maternal aunt out of natural love

Pendurthi Chandrasekhar Vs DCIT (Andhra Pradesh HC)

Pendurthi Chandrasekhar Vs DCIT (Andhra Pradesh HC) Conclusion: AO was not justified in adding the amount of Rs. 73,00,000 to the account of  assessee received from maternal aunt as the donor herself had given a confirmation letter clearly stating therein that she had transferred the amount  and further declaring that she gave the said ...

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RTI not applicable to non-governmental religious institutions

G. Rajenderanath Goud Vs The Government of Andhra Pradesh (High Court Hyderabad)

Religious institutions like temples, churches, mosques, which were not financed/funded by government did not fall within the purview of Right to Information Act, 2005. However, it is desirable to amend the Act at least to bring in its fold all the registered temples/institutions having income over and above a particular limit, to furni...

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Priority of Tax Dues In Liquidation?

Leo Edibles & Fats Limited vs TRO (Andhra Pradesh High Court)

The manner of distribution of the assets of a company during liquidation is fraught with ambiguity and settlement of such claims arising out of it has inconvenienced the parties concerned since the advent of the Insolvency and Bankruptcy Code, 2016 (Code). ...

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Income Tax cannot be recovered during Liquidation Process under IBC

Leo Edibles & Fats Limited Vs The Tax Recovery Officer (Central) (Andhra Pradesh HC)

Leo Edibles & Fats Limited Vs TRO (Central) (Andhra Pradesh HC) Section 178 of the Act of 1961 is titled ‘Company in liquidation’. Under sub-section (1) thereof, the liquidator of a company which is being wound up, or a person who is appointed as a Receiver of the assets of such company has to give […]...

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Explanation 3 to section 147 has no application In relation to issue cropped up subsequent to original assessment on new set of facts

CIT Vs . Swarna Andhra Ijmii Integrated Township Development (P) Ltd. (Andhra Pradesh High Court At Hyderabad)

Explanation 3 will be applicable in case where live issue, which was subsisting at the time of original assessment and if such issue has escaped the determination of the assessing officer, can be a ground for reopening. Any new issue that has cropped up subsequently on new set of facts, the aforesaid Explanation has no application. ...

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Reopening on ground that returned income is lower in comparison to income offered by others is invalid

Rajender Goud Chepur Vs. ITO (Andhra Pradesh And Telangana High Court)

Assessing officers completely erred in reopening assessments on the basis of either a suspicion that there is suppression of income or on the basis that persons in the same line of business are returning a higher income. Without even mentioning the comparables, no initiation of proceedings under section 147 can be made....

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Initiation of Penalty Proceeding U/s. 271(1)(c) in absence of clear finding is invalid

Pr CIT Vs. Baisetty Revathi (Andhra Pradesh High Court)

Pr CIT Vs. Baisetty Revathi (Andhra Pradesh High Court) In the present case, the assessee seems to have submitted her explanation on merits without raising a doubt as to what was the precise allegation leveled against her. However, we are more concerned with the principle involved and not just the isolated case of its application [&hellip...

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Sec. 11 deduction on fees for Providing Assistance to Banks & Financial Institutions

The Principal Commissioner of Income Tax (Exemptions) Vs. Institute for Development and Research in Banking Technology (Andhra Pradesh High Court)

Principal CIT (Exemptions) Vs. Institute for Development and Research in Banking Technology (Andhra Pradesh High Court) Held by ITAT The circumstances under which the services rendered by the appellant society to the Banks make clear that there is no profit motive in such activities because these activities were entrusted to the appellan...

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Levy of Capital Gain Tax when assessee denies ownership and sale

Smt. Uppada Sarvani Vs ITO (Hyderabad High Court)

Admittedly, the petitioner has lodged a police complaint that her name has been misused in a document in respect of a property of which she is not the owner. Therefore, the matter requires further detail prob....

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No VAT under Telangana VAT Act, 2005 on transfer of a business as a whole

M/s. Paradise Food Court Vs. State of Telangana (Andhra Pradesh High Court)

 A careful look at the reason for Rule 36 being inserted, which cannot be correlated to anyone of the matters enumerated in Clauses (a) to (r) of sub-section (2) of Section 78, will show that in the entire Telangana VAT Act, 2005, the only place where a transfer of business as a whole is spoken […]...

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If marks are not affixed on goods then it cannot be said that brand-name has been affixed

The Commissioner, Customs & Central Excise Vs M/s. Voltarc India (P) Ltd. (Andhra Pradesh High Court)

Commissioner, Customs & Central Excise Vs.M/s.Voltarc India (P) Ltd. (Andhra Pradesh High Court)- Tribunal also found that Voltarc symbol which was being used on the wrapper and packer was reflecting only the name of the company...

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If department alleges collection of taxes, then burden to prove the same also lies on it

Commissioner of Customs & C.Ex Vs Rayan Pharma Ltd (Andhra Pradesh High Court)

In the present case it appears that the Commissioner has assumed that in respect of all the clearances, the appellant has collected Excise Duty. If the department makes the allegation that the appellant had collected money representing Excise Duty...

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Excise: Extended period can be invoked only if there is suppression of material facts, collusion or any wilful mis-statement

Commissioner of Customs and Central Excise Vs M/s.Grip Engineers (P) Ltd. (Andhra Pradesh High Couts)

Commissioner Of Customs And Central Excise Vs M/S Grip Engineers Pvt Ltd. (High Court of Andhra Pradesh)- In this Show cause notice was issued to the assessee on 22.04.2003 i.e. beyond the period of one year from the date of clearance of excisable goods invoking proviso to Section 11A of the Act...

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In case of doubt on dutiability of goods, extended period of limitation cannot be invoked

The Commissioner of Customs and Central Excise Vs M/s Andhra Pradesh Paper Mills Ltd. (Andhra Pradesh High Court)

The Tribunal had also, considering the fact that when there was a scope for doubt whether the goods were dutiable or not, refused to apply extended period of limitation. The Tribunal relied on the judgments of the Supreme Court in Camphor Drugs and Laminates...

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Input credit not allowed if Final Product exempt from Tax and such duty cannot be refunded

The Commissioner, Customs & Central Excise Versus M/s. Surana Telecom Limited (Andhra Pradesh High Court)

CCECE Vs. M/s. Surana Telecom Limited (High Court of Andhra Pradesh) Rule 57L of the Rules which says that no credit of money on the inputs used in the manufacture of the final products shall be allowed if the final products are exempt from the whole of the duty of excise leviable thereon...

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Mere Cutting of jumbo roll of paper into smaller size is not Manufacture: HC

Commissioner of Central Excise and Customs, Hyderabad Vs M/s Rasmi Wax Coated Paper & Printing Industry (Andhra Pradesh High Court)

CCEC v. Rasmi Wax Coated Paper & Printing Industry (High Court of Andhra Pradesh)- Mere cutting of jumbo rolls of paper into smaller sizes and printing thereon by job-worker resulting into ‘printed cork tipping paper’ does amount to ‘manufacture’ for purpose of charging excise duty. ...

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In case of covered matter Tribunal can waive Pre-Deposit condition: HC

Commissioner of Customs, Central Excise and Service Tax, Hyderabad Vs M/s TPSC (India) Pvt. Ltd. (Andhra Pradesh High Court)

CCCE&S Vs. M/s TPSC (India) Pvt. Ltd. (Andhra Pradesh HC)- Contention of the learned Standing Counsel for the Department that the Tribunal ought not to have granted absolute waiver and also stay of recovery without imposing any condition, does not merit any consideration in the facts of the case. ...

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Order rejecting stay application by passing a non-speaking order is liable to be set aside

Smt. Kavitha Rajakoti, w/o V.D.Rajakoti Vs Income Tax Officer

Smt. Kavitha Rajakoti Vs. ITO (Andhra Pradesh High Court) Assessing Officer is required to act in a fair manner and need to consider the stay petition independently and pass a speaking order stating reasons as to why the stay application of the petitioner is not required to be considered...

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Order passed without considering the ground raised by Appellant is not sutainable

B. Bala Narasimha Reddy Versus Principal Commissioner of Income Tax And Another (Andra Pradesh High Court)

B Bala Narasimha Reddy Vs PR.CIT (AP High Court)- In the present case impugned order is bereft of any reasons and further the same has not dealt with the contentions raised by the petitioner in his application filed under Section 220(2A) of the Act...

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AP HC on Sales Tax on Goods moved from one state to other for execution of work contract

The State of Andhra Pradesh Vs M/s The Indian Hume Pipe Co., Ltd. (Andhra Pradesh High Court)

The State of Andhra Pradesh Vs. M/s The Indian Hume Pipe Co., Ltd. (High Court), At the outset, it may be noted that consequent to the Constitutional amendment, levy of Sales Tax on the Works Contract came to be introduced in the State of Andhra Pradesh with effect from 01.07.1985....

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Duty paid under mistake of law can be recovered only by resort to provisions of Section 11B

M/s. ITC Limited Vs CESTAT, Bangalore (Andhra Pradesh High Court)

M/s. ITC Limited Vs. CESTAT, Bangalore (Andhra Pradesh High Court) Larger Bench of Supreme Court had categorically held that any duty paid under mistake of law can be recovered only by resort to the provisions of Section 11B of the Act....

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No Penalty for mere Treatment of Capital Gain on Sale of Agricultural Land as Business Profit by AO

Principal Commissioner of Income Tax Vs M/s G.K. Properties Private Limited (Andhra Pradesh High Court)

Pr. CIT Vs. M/s G.K. Properties Private Limited (Andhra Pradesh High Court) The case of the appellant-Department, in brief, is that the assessee had purchased agricultural lands with a clear intention to trade in buying and selling of agricultural lands...

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S. 263 Only precondition for revising order of AO is that order of AO should be erroneous

Commissioner of Income Tax Vs Shri Varanasi Khanta Rao, Prop. Sri Sai Srinivasa Modern Rice Mill (Andhra Pradesh High Court)

CIT Vs. Shri Varanasi Khanta Rao (Andhra Pradesh High Court) When once the Commissioner has got power to point out the errors which had the effect on the revenue, the Tribunal cannot sit as an appellate authority on the order of the Commissioner passed under Section 263 of the Act....

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Once an assessment is re-opened by virtue of order passed by CIT U/s. 263, the initial order of assessment ceases to be operative

Sri Damodarlal Badruka Vs The Income Tax Officer (Andhra Pradesh High Court)

Sri Damodarlal Badruka Vs. ITO (Andhra Pradesh High Court) It is well settled that once an assessment is re-opened by virtue of the order passed by CIT under Section 263 of the Act, the initial order of assessment ceases to be operative....

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Income from Renting of Godown cannot be treated as Business income merely on the basis of Partnership Deed

The Commissioner of Income Tax Vs M/s. Sileman Khan Mahaboob Khan (Andhra Pradesh High Court)

CIT Vs. M/s. Sileman Khan Mahaboob Khan (Andhra Pradesh High Court) Merely because one of the objectives, in the partnership deed, was to let out the godowns would not mean that the assessee had undertaken the activity of construction of godowns and letting them out as business activity. ...

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Cutting of jumbo rolls into smaller sizes and printing on them does not amount to manufacture

Commissioner of Central Excise and Customs Vs M/s Rasmi Wax Coated Paper & Printing Industry (Andhra Pradesh High Court)

In the case of CCE&C vs. M/s Rasmi Wax Coated Paper & Printing Industry it was held by Andhra Pradesh High Court that the subject processes viz., printing, slitting and winding Cork Tipping Paper does not amount to manufacture and no subject processes undertaken by the assessee was bringing ...

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Section 11A not mandatory to be invoked for recovery of wrong refund- HC

The Commissioner Customs & Central Excise, Tirupati Vs M/s. Panyam Cements & Minerals Industries Ltd. (Andhra Pradesh High Court)

In the case of The Commissioner Customs & Central Excise V/s M/s. Panyam Cements & Minerals Industries Ltd. it was held that invoking Section 11A is not mandatory for recovering the wrong refund granted....

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Section 11A mandatory for recovering refund granted pursuant to the order which subsequently declared as unsustainable – HC

The Commissioner Customs & Central Excise, Tirupati Vs M/s. Panyam Cements & Industries Ltd. Kurnool (Andhra Pradesh High Court)

In the case of The CC&CE V/s M/s. Panyam Cements & Minerals Industries Ltd., Kurnool, it was held by Andhra Pradesh High Court that invoking Section 11A is mandatory for recovering the refund granted pursuant to the adjudication order passed under section 11B which subsequently declared as unsustainable...

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Rejection of claim raised in return of income ipso-facto not attract levy of penalty U/s. 271 (1) (c)

Principal Commissioner of Income Tax-II Vs M/s G.K. Properties Private Limited (Andhra Pradesh High Court)

CIT Vs. G.K. Properties Private Limited (Andhra Pradesh HC) Merely because the assessee made a claim which was not acceptable ipso-facto cannot be said to have made a wrong claim by furnishing inaccurate particulars attracting penalty under Section 271(1)(c) of the Income Tax Act...

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Single Centering & shuttering material used in construction can be treated as plant

Commissioner of Income-Tax Vs S. Vijaya Kumar (Andhra Pradesh High Court)

CIT Vs. S. Vijaya Kumar (Andhra Pradesh High Court) Individual items of centering and shuttering material used collectively in construction process constitute ‘Plant’ in terms of first proviso to section 32 (1), even if they can’t be used on stand alone basis....

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Whenever order of Re-assessment is passed, Period of Limitation will start from the date of Re-assessment order and not from Original Assessment order

Rastriya Ispat Nigam Limited Vs Asst. Commissioner of Income Tax (Telangana and Andhra Pradesh High Court)

Rastriya Ispat Nigam Limited v. ACIT In this case the writ petition was filed by the Assessee in which the AP High Court while dismissing the writ petition held that whenever an order is made under the re-assessment...

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Section 263 could be invoked if both the ingredients are satisfied

CIT Vs Shri Varanasi Khanta Rao (Telangana and Andhra Pradesh High Court)

While discussing the Revisional powers of CIT(A) u/s 263 it was held that the Commissioner has to be satisfied of twin conditions, namely, i) the order is erroneous; and ii) it is prejudicial to the interests of the revenue....

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Godown Rent cannot be treated as business Income as it’s not a continuous activity from year to year

The Commissioner of Income Tax Vs M/s. Sileman Khan Mahaboob Khan (Telangana and Andhra Pradesh High Court)

High Court held that Business is a continuous activity which is done year to year. Here, in this case the Assessee let out his godown and shown income as Income from Business instead of Income from property to which the High court do not agree ...

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Explanation 3C to section 43B will have retrospective effect for actual payments

CIT Vs Pennar Profiles Ltd. (Telangana and Andhra Pradesh High Court)

In the present facts of the Case the Hon’ble High Court held that Explanation 3C to section 43B is having retrospective effect from 01/04/1989. Therefore, conversion of interest amount into loan would not be actually deemed to be actual payment....

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No Section 54F exemption on Property Purchased in married daughters name

Ganta Vijaya Lakshmi Vs Income-tax Officer (Andhra Pradesh High Court)

Language of the Section 54F and 54B is very clear that it relates to unmarried daughters. Here the undisputed fact is that the property is purchased in the name of married daughters. When the Legislature thought it fit to specify the words 'unmarried daughters', the Court cannot substitute the words....

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Revision of audited report by CA before adoption of earlier audit report in AGM would not constitute misconduct

Council of the Institute of Chartered Ac Vs Shri G. Pattabhi Rama Charya (Andhra Pradesh High Court)

A careful analysis of Guidance Note on Revision of the Audit Report issued by the Council of the Institute of Chartered Accountants of India would reveal that it is permissible for the respondent to rectify and revise the audit report even after it is submitted. ...

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Interest on Income Tax refund should be spread over the years for which interest is granted

Shri M. Jaffer Saheb (Decd.) Vs Commissioner of Income-Tax (Andhra Pradesh High Court)

The Andhra Pradesh HC has held in the case Shri M. Jaffer Saheb (Decd.) Vs. CIT that interest granted under Section 244A of the Act on income tax refund is chargeable to tax on accrual basis and has to be spread over the respective years for which interest is being granted. ...

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AP High Court grants Stays on Audit by CAG of private Company

M/s. Aditya Housing & Infrastructure Development Company Pvt Ltd Vs The Comptroller & Auditor General of India (Andhra Pradesh High Court at Hyderabad)

PRAYER - to issue a writ order or direction more particularly one nature of Writ of Mandamus declaring the impugned letter dated 09.07.2013 of the 3rd respondent proposing the visit of the officers of the 1st respondent to petitioner premises ...

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Deduction U/s. 54/54F dallowable for purchase of multiple independent house units

The Commissioner of Income Tax Vs Syed Ali Adil (Andhra Pradesh High Court)

As held in D. Ananda Basappa's case (1 supra) by the Karnataka High Court, the expression a residential house in Section 54 (1) of the Act has to be understood in a sense that the building should be of residential nature and a should not be understood to indicate a singular number...

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Accomodation services provided to staff in remote area are input services

Commissioner of Customs & Central Excise Vs ITC Ltd. (Andhra Pradesh High Court)

The Commissioner's Order-in-Appeal dated 27.05.2008 reflects that he accepted that the efficiency of the employees of an organization would be dependent on various factors, one such being the provision of a housing colony. He further conceded that these facilities would contribute to the enhancement of the productivity of the organization...

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HC disapproves scheme of arrangement which was designed to avoid repayment of creditors

Model Financial Corpn. Ltd. Vs A.P. Mahesh Co-operative Urban Bank Ltd. (Andhra Pradesh High Court)

It is evident from the clauses referred to hereinabove, and from what has been narrated in this order earlier, that the bondholders were deliberately misled to believe that they would receive at least Rs. 250 in cash for each bond of Rs. 1,000, i.e., at least one-fourth of their principal latest by September 30, 2003. It is also clear tha...

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Hire-Purchase – In absence of bifurcation of EMIs into principal & interest indexing system of accounting is valid

Sri Chakra Financial Services Limited Vs The Commissioner of Income-tax (Andhra Pradesh High Court)

In the present case, there is no indication of the assessee's hire purchase agreements reflecting bifurcation of the EMIs into principal and interest components. In the absence thereof, the common and accepted usage of the indexing system of accounting in the hire-purchase trade must be held to be valid as otherwise the rate of interest u...

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Penalty for concealment can be levied if assessee acted in contumacious manner

Commissioner of Income-tax Vs B. Venkatesam (Andhra Pradesh High Court)

In T. Ashok Pai v. CIT [2007] 292 ITR 11 the Supreme Court observed that if the explanation given by an assessee is taken to be bona fide, the question of imposition of penalty under section 271(1)(c) of the Act would not arise. Although the findings arrived at in assessment proceedings would constitute good material for penalty proceedin...

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Electricity charges payable to govt are not covered u/s. 43B

Commissioner of Income-tax Vs Andhra Ferro Alloys (P.) Ltd. (Andhra Pradesh High Court)

Tribunal while allowing the appeal held that the electricity charges partake of the nature of statutory liability and accordingly will have to be allowed as deduction irrespective of whether or not the same has been paid and notwithstanding that the assessee has disputed any liability to pay any part of such charges. Section 43B of the Ac...

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S. 271(1)(c) Initiation of penalty proceeding without recording of satisfaction is invalid

Chennakesava Pharmaceuticals Vs Commissioner of Income-tax (Andhra Pradesh High Court)

Assessing Officer should record in the assessment order his satisfaction that the assessee had either concealed the income or furnished inaccurate particulars of income in his return before imposing penalty, we noticed that in the assessment orders passed by the Assessing Officer for the assessment year 1982-83 (which is the subject-matte...

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Return Filed belated cannot be revised U/s. 139(5)

Chennakesava Pharmaceuticals Vs Commissioner of Income-tax (Andhra Pradesh High Court)

In the present case, it is an admitted position where the appellant had not furnished the return within time allotted to him under sub sections (1) and (2) and therefore, his case clearly falls within the provision of section 139 (4). Section 139 (5) merely stipulates that it is applicable to any person who has furnished the return under ...

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Retrospective amendment to Income-tax Act has no impact on DTAA

M/s. Sanofi Pasteur Holding SA Vs The Department of Revenue (Andhra Pradesh High Court)

The retrospective clarificatory amendments (vide the Finance Act, 2012) do not seek to override the DTAA. In case of a conflict between the domestic law and the DTAA, DTAA will prevail, in terms of Section 90 of the Act....

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Tribunal’s order not involving substantial question of law cannot be appealed in high court

Commissioner of Customs and Central Excise, Guntur Vs Crane Betel Nut Powder Works (Andhra Pradesh High Court)

In our considered view, the Commissioner (Appeals) and the CESTAT in the order impugned have considered the material on record and if there is some evidence on the basis of which the primary and appellate authorities have based their conclusions, then the fact that better evidence ought to have been marshalled by the assessee and absence ...

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CBEC circular comes into effect on the date of issue & not from date when it is notified

Commissioner of Central Excise Vs Kedia Vanaspathi Ltd. (Andhra Pradesh High Court)

There is no dispute that C.B.E. & C. issued circular dated 27-12-2002. As per the circular, in case of bulk liquid cargo imports, shore tank receipt quantity should be taken as the basis for levy of customs duty. The Adjudicating Authority came to the conclusion that C.B.E.& C.'s circular comes into effect from 24-3-2003 on which date the...

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Condition of Pre-deposit of tax for considering an application for ‘condonation of delay’ not justified

Mihani Network Vs Commissioner of Customs and Central Excise (Andhra Pradesh High Court)

There is no legal provision which provides for condoning the delay in filing the appeal on a condition of depositing 50% of the tax amount. The delay in filing the appeal is condoned or refused depending upon the sufficiency of cause for delay. If the party is found to be prevented by a sufficient cause to the satisfaction of the Appellat...

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Interest on Loan to acquire share allowable if Assessee engaged in share trading

Commissioner of Income tax Vs Peninsular Investment Ltd. (Andhra Pradesh High Court)

The tax audit report filed by the assessee was as per Form No. 3CA which was applicable to the assessees carrying on business or profession. In the audit report, the nature of business was referred to as investment company and the method of valuation of closing stock was stated to be the lower of cost or market value which method is appli...

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Daily allowance paid to employees are similar to hotel expenses for disallowance u/s. 37(3A) to 37(3D)

Novopan India Ltd. Vs Commissioner of Income-tax, Hyderabad (Andhra Pradesh High Court)

A reading of the provision of section 37(3A) to (3D) indicates that where the expenditure or as the case may be, the aggregate expenditure incurred by an assessee on any one or more of the following; i.e. (i) advertisement, publicity, sales promotion (ii) running and maintenance of air craft and motor cars and (iii) payments made to hotel...

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Credit for TDS allowed if Income shown in certificate is offered for tax despite certificate is not in Assessee’s name

Commissioner of Income-tax-1 Vs Bhooratnam & Co. (Andhra Pradesh High Court)

Assessee is entitled to the credit of the TDS mentioned in the TDS certificates issued by the contractor, whether the said certificate is issued in the name of the Joint Venture or in the name of a Director of the assessee company. They have considered the terms of the agreement dated 12-03-2003 among the parties to the joint venture and ...

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Andhra Pradesh HC stays CBEC’s Circular on recovery of confirmed demand during pendency of stay application

Ultratech Cement Ltd. Vs. Union Of India (Andhra Pradesh High Court At Hyderabad)

Petition under Section 151 of C.P.C. praying that in the circumstances stated in the affidavit filed in the W.P. the High Court may be pleased to grant stay of clarification issued vide SI.No.3 of the circular No.967/01/2013-CX dated 01.01.2013 and consequent Letter C.No.490/2012-13 dated 04.01.2013 issued by the Respondent No.2, pending ...

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If show cause notice suggests that Department had already come to conclusion it is to be set aside

SBQ Steels Ltd. Vs Commissioner of Customs, Central Excise & Service Tax (Andhra Pradesh High Court)

It is settled principle of law that a quasi-judicial authority, while acting in exercise of its statutory power must act fairly and must act with an open mind while initiating the show-cause proceeding. A show-cause notice is meant to give the person proceeded against a reasonable opportunity of making his objection against the proposed c...

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Research related services are not Consulting Engineering Services

Commissioner of Central Excise & Customs, Visakhapatnam-I Vs National Ship Design & Research Centre (Andhra Pradesh High Court)

Levy of Service Tax on 'Consulting Engineering Services' was introduced with effect from 7-7-1997 while 'Scientific or Technical Consultancy' was brought under Service Tax net with effect from 16-7-2001 only. The assessee was not only providing 'Consulting Engineering Services' but also 'Scientific or Technical Consultancy' i.e. Scienti...

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No penalty on Sania Mirza as income not offered to tax was due to bona fide mistake

The Commissioner of Income Tax Vs Ms. Sania Mirza (Andhra Pradesh High Court)

The admitted position is that the amount of Rs.30,63,310/- was shown by her in the return. That being the position, it cannot be said that there was any concealment. There is no dispute about the fact that the amount was correctly mentioned and therefore, there is also nothing inaccurate in the particulars furnished by her. ...

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Toll collection on national highways by a concessionaire under assignment agreement not liable to service tax under BAS

Commissioner of Customs & Central Excise, Guntur Vs Swarna Tollway (P.) Ltd. (Andhra Pradesh High Court)

Under Clause 2.1 of the assignment agreement dt.29.6.2001, CIDBI assigned and transferred the concession agreement in favour of the respondent and the respondent unconditionally agreed to accept the said assignment/transfer of the concession agreement and undertook to execute/perform the concession agreement as if the said agreement was e...

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No addition u/s 68 for gift from close relative who confirms the gift and was man of means

Commissioner of Income-tax Vs Dr. Kodela Siva Prasada Rao (Andhra Pradesh High Court)

Assessee had received a gift of Rs. 22,76,750/-in U.S. dollars from an NRI, N.Mohan and the assessee had filed two confirmation letters, one in December 2006 and another on 10-07-2007 given by the donor stating that he had gifted the above amount to the assessee, that the assessee is his close relative, that he is a man of means owning a ...

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Addition u/s. 68 justified if creditworthiness of creditor & genuineness of transaction not proved

Dr. D. Siva Sankara Rao Vs Income-tax Officer (Andhra Pradesh High Court)

The principle is that the assessee has to prove the identity of the creditor, the genuineness of the transaction and the creditworthiness of the creditor in order to discharge the burden cast on him, that a particular cash credit found in his books is genuine having regard to the nature and the source thereof and, therefore, cannot be add...

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All services involving computers are not ‘information technology service’

Commissioner of Customs & Central Excise Vs Deloitte Tax Service India (P.) Ltd. (Andhra Pradesh High Court)

Section 65(19) of the Act defines business auxiliary service and excludes 'information technology service' which is defined in the Explanation to the said section as "any service in relation to designing, developing or maintaining of computer software, or computerised data processing or system networking, or any other service primarily in...

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HC held seed certification work of a State Agency a business activity and denied registration

Andhra Pradesh State Seed Certification Agency Vs Chief Commissioner of Income Tax-III, Hyderabad (Andhra Pradesh High Court)

HC held that CIT had rightly rejected the application of the petitioner for approval under Section 10 (23C) (iv) of the Act on the ground that the petitioner has not rendered its services directly to the farmers but is rendering its services directly to its clients/agents who are engaged in trading of the certified seeds with profit moti...

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Nature of Hire charges for hoarding space – Is it for ‘use of premises for purpose of business’ or for publicity or advertisement or sales promotion

Bakelite Hylam Ltd. Vs Commissioner of Income-tax (Andhra Pradesh High Court)

This is a reference under section 256(1) of the Income-tax Act, 1961 (the Act). The following two questions have been referred to the opinion of this court at the instance of the assessee with reference to the assessment years 1985-86 and 1986-87....

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HC Stays Special Bench Verdict On Disallowance u/s. 40(a)(ia)

Commissioner of Income Tax-I, Visakhapatnam. Vs M/s. Merilyn Shipping & Transports, Visakhapatnam. (Andhra Pradesh High Court at Hydrabad)

Petition under Section 151 of CPC praying that in the circumstances stated in the affidavit filed herein, the High Court may be pleased to suspend the operation of the order passed by the Income Tax Appellate Tribunal, Visakhapatnam Bench, Visakhapatnam, in its I.T.A.No. 477/Vizag/2008, dated. 09-04-20 12, pending ITTA.No. 384/2012 prefer...

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On dissolution of partnership firm, only firm is taxable on capital gain on Assets distributed to Partners

Chalasani Venkateswara Rao Vs Income-tax Officer, Ward-IV, Vijayawada (Andhra Pradesh High Court)

When the appellant was paid Rs. 15.00 lakhs by Y. Kalyana Sundaram in full and final settlement towards his 50% share on the dissolution of the firm, there was no "transfer" as understood in law and consequently there cannot be tax on alleged capital gain. The appellant was correct in law in contending that the amount he received from Y. ...

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Telecom Infra Service Providers are eligible to procure goods against Form ‘C’

M/s Indus Towers Limited, Vs The Commercial Tax Officer (Andhra Pradesh High Court)

Telecom Infrastructure Service Providers – Entitled to procure goods against ‘C’ Forms at concessional rate of CST @2% - Goods purchased are used in the telecommunication network and therefore covered by Section (1) and 8(3)(b) of the CST Act – Petitions allowed - Penalties levied on the appellants set aside. ...

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Interest from Bank by Housing Society Taxable – Principle of mutuality do not apply

Commissioner of Income-tax Vs Secunderabad Club Picket (Andhra Pradesh High Court)

It is not possible to accept the contention of the counsel for the assessee that interest earned even from third parties would be exempt from the charge of income-tax, in all types of transactions. The ratio therein is that, if an incorporated entity is engaged in trade, the profit from it, even if they are transactions with members, woul...

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Arbitration clause cannot bar HC to admit winding up petition

Integrated Broadcasting Co. (P.) Ltd. Vs Nettlinx Ltd. (Andhra Pradesh High Court)

There is no conflict between the statutory relief of winding up and of the contractual right to have disputes settled by arbitration. Once a bona fide defence is shown to exist, arbitration will be the efficacious and proper remedy. Where, however, the defence is mala fide and a moonshine, arbitrable disputes would not exist and the compa...

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Winding up petition cannot be rejected on the ground that net worth of respondent-company is positive

SBI Global Factors Ltd. Vs Suryachakra Power Corporation Ltd. (Andhra Pradesh High Court)

If there is no dispute as to the company's liability, it is difficult to hold that the company should be able to pay its debts merely by proving that it is able to pay the debts. If the debt is an undisputedly owing, then it should be paid. If the company refuses to pay, without good reason, it should not be able to avoid the statutory de...

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S. 635 – Production of certified copy of order of company court sufficient for its execution by executing Court

Samvidha Chit Funds (P.) Ltd. (In Liquidation) Vs Additional Junior Civil Judge (Andhra Pradesh High Court)

The procedure to be followed in the matter of execution of the order made by the company court is different from that laid down in the Code of Civil Procedure. As per section 635, it is sufficient to produce to the Court which is required to execute its order, a certified copy of the order sought to be executed. It is not necessary to com...

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Applications for stay should not be disposed of in a routine manner unmindful of the consequences

Lanco Infra Tech Ltd. Versus CESTAT (Andhra Pradesh High Court)

The appellant/assessee availed the benefit under the Works Contracts Composition Scheme in respect of contracts entered into prior to 1-6-2007. The respondent/department issued show cause notice proposing service tax, interest and penalty on the ground that the petitioner was not eligible to avail the benefit under the Composition Scheme...

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No Sales Tax on SIM cards – pre-paid and post-paid; recharge coupons; value added services – Andhra Pradesh High Court

Bharati Airtel Ltd. Vs Asst. Commissioner (CT)- II, Begumpet Division & Others (Andhra Pradesh High Court)

Declaration of the law by the Supreme Court, in Bharat Sanchar Nigam Ltd v. Union of India[1], notwithstanding, we are now called upon, in this batch of Writ Petitions, to adjudicate on the jurisdiction of the revisional/ appellate/ assessing authorities to levy tax under Section 4(1) and (8) of the A.P. VAT Act, 2005 (hereinafter referre...

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Items used in manufacture of capital goods & parts thereof eligible for CENVAT credit

The Commissioner of Central Excise and Customs Vs. Rashtriya Ispat Nigam Ltd. (Andhra Pradesh High Court)

Items used in the manufacture of capital goods and parts thereof and are eligible for CENVAT credit under Rule 2 of the CENVAT Credit Rules, 2002....

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Depreciation at 100% can be claimed on the LP gas cylinders fitted to the chassis of transport vehicles

Commissioner of Income Tax Vs. Anantha Gas Suppliers (Andhra Pradesh High Court)

CIT Vs M/s Anantha Gas Suppliers (Andhra Pradesh High Court) In the absence of any ambiguity, we have to take into consideration the plain language of the statutory provision and the obvious intention of the Legislature in using such a plain language. The Legislature merely said 'gas cylinders including valves and regulators', it has no...

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Cooperative bank entitled to claim exemption u/s. 80P(2)(a)(i) in respect of income derived out of investments made from the voluntary reserves

CIT Vs Andhra Pradesh State Co-op Bank Ltd. (Andhra Pradesh High Court)

In this group of Income Tax Tribunal Appeals under Section 260A of the Income-tax Act, 1961 (hereafter, the Act) the common question of law raised by the Revenue is whether a cooperative society carrying on the business of banking is entitled to claim exemption under Section 80P(2)(a)(i)...

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Commissioner of Customs and Central Excise Vs. ITW India Limited (Andhra Pradesh High Court)

The Commissioner of Customs & Central Excise Vs M/s. ITW India Limited (Andhra Pradesh High Court)

The chemicals namely ZYGLO-ZP-4B and 9C RED concentrate were received in bulk packing of 205 litre of drums and those were repacked into small packs of 1 kg. and cleared as ‘trading goods’ without payment of duty. the Deputy Commissioner had made an order on 03-02-1998 in respect of one of the items covered thereunder and held that t...

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Service Tax – On-going Works Contract as on 01.06.2007 – Prima facie case alone is not sufficient for granting stay – Tribunal to follow principles for granting stay

Lanco Infra Tech Ltd Vs Customs, Excise And Service Tax Appeallate Tribunal Bangalore And Another (Andhra Pradesh High Court)

Bench enumerated the following principles to be kept in mind while considering the applications for stay or waiver of pre-deposit under Section 35F of the Act. 1) The applications for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of th...

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Stay Application should not be disposed of in a routine manner unmindful of the consequences flowing from the order

Comissioner of Central Excise Guntur Commissionerate Vs M/s Sri Chaitanya Educational Committee (Andhra Pradesh High Court)

Applications for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand; Three aspects to be focused while dealing with the applications for dispensing of pre-deposit are: (a) prima facie case, (b) balance of convenience, and (c) ...

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Service Tax on Renting of Immovable Properties- AP High Court stays retrospective amendment

Trent Limited Vs. DDIT (High Court of Andhra Pradesh)

TRENT Ltd and Future Value Retail Ltd have challenged before the AP High Court, the service tax with retrospective effect on renting of immovable property, brought in by the Finance Act, 2010....

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Nagarjuna Construction Company Ltd. Versus Government of India (Andhra Pradesh HC)

M/s Nagarjuna Construction Company Ltd. Vs. Government of India (Andhra Pradesh High Court)

The Circular No. 98/1/2008-ST dated 01-01-2008 issued by the 1st respondent is in challenge. On a true and fair construction of Rule 3(3) of the 2007 Rules, it is clear that where in respect of a works contract service tax has been paid, no option to pay service tax under the composition scheme could be exercised. There is no ambiguity i...

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