CASE LAWS

2016-TIOL-143-SC-IT

CCIT Vs ST PETERS EDUCATIONAL SOCIETY: SUPREME COURT OF INDIA (Dated: May 10, 2016)

Income Tax - Sections 10(23C) & 11.

Keywords - exemption u/s 10(23C) - educational purpose - exemption - surplus - profit enterprise.

Whether merely on the basis that surplus is generated by an educational institution, it ceases to exist solely for education purpose and becomes a profit making enterprise - NO: SC

The assessee is a educational society. It was not disputed by Solicitor General appearing for the Income Tax Department and the various counsel who have appeared for the assessees in these appeals that the issue involved in these appeals was squarely covered by the judgment of Apex Court in Queen's Educational Society vs. Commissioner of Income Tax 2015-TIOL-20-SC-IT . The matter pertains to the exemption to the educational institutions u/s 10(23C).

The Apex Court held that,

++ we may record at this stage that there was a difference of opinion among various High Courts on the aforesaid issue. While summarizing the law, this Court approved the judgments of Punjab and Haryana High Court, Delhi and Bombay High Courts and reversed the view taken by the Uttarakhand High Court. Insofar as the judgment of the Punjab and Haryana High Court is concerned, it was given in the case of Pinegrove International Charitable Trust v. Union of India (2010) 327 ITR 73. In all those appeals which have come from the High Court of Punjab and Haryana and filed by the Department of Income Tax except one from Gujarat High Court, the High Court has followed its aforesaid judgment in Pinegrove International Charitable Trust. Since this view stands approved, all these appeals are dismissed. We, however, make it clear that observations made in para 25, reproduced above, shall apply in these cases. One appeal is from Gujarat High Court which has also followed the view taken by the Punjab and Haryana High Court in Pinegrove International Charitable Trust, which also stands dismissed. We also make it clear that the observations made in para 25 in Queen's Educational Society vs. CIT 2015-TIOL-20-SC-IT shall be followed.

Revenue's appeal dismissed

2016-TIOL-142-SC-VAT

CCT Vs JAY NARAYAN ENTERPRISES: SUPREME COURT OF INDIA (Dated: January 15, 2016)

U.P. Value Added Tax, 2008 - Section 52.

Keywords: transit declaration - seizure - person plying the vehicle - error of recording.

Whether for transfer of goods, the person plying the vehicle must possess transit declaration form & if the same is not established then mere downloading of the said form would not serve the purpose - Yes

The assessee is a trading concern. Its counsel had contended that the High Court had fallen into error by recording the finding that the transit declaration form was downloaded before the order of seizure was passed. It was submitted by the Revenue's counsel that the transit declaration form was to be with the person plying the vehicle, but the same having not been established, a downloading of the said form would not sub-serve the purpose. In essence, the submission was that the goods cannot be transported beyond the territory without the said requisite form.

The Apex Court held that,

++ we do not find that the said aspect has been adverted to. Thus, we permit the petitioner to file an application for review within a period of three weeks. The High Court will entertain the review on merits and squarely deal with this aspect. If in ultimate eventuality, there would be no interference in review, liberty is granted to the petitioner to challenge the impugned order (the main order) and the order passed in review. The special leave petition is, accordingly, disposed of.

Case remanded

2016-TIOL-2240-CESTAT-MUM

POLYPACK INDUSTRIES Vs CCE: MUMBAI CESTAT(Dated: August 3, 2016)

CX - Matter was heard on 26.04.2016 and order was reserved - ROM application filed on the ground that written submissions dated 28.04.2016 filed on 29.04.2016 have not been considered. Held: During the hearing, no liberty was given to the appellant for filing any written submissions and which have been given later, therefore, first ground of application does not sustain and is dismissed - applicant has also sought to rely on the decision of Apex Court in the case of CCE Vs. RA Shaikh Paper Mills Pvt. Ltd. - It is seen that the citation given is invalid and no such case appears in the CD of Excus. In any case, the decision was not cited during the hearing - Application dismissed: CESTAT [para 2, 3, 4]

Application dismissed

2016-TIOL-2239-CESTAT-MUM

HINDUSTAN PETROLEUM CORPORATION LTD Vs CCE: MUMBAI CESTAT (Dated: August 10, 2016)

CX - Tribunal had in its order - 2016-TIOL-1430-CESTAT-MUM held that S.35F does not require payment of any pre-deposit of interest but since penalty has been imposed, pre-deposit is to be made of penalty - Miscellaneous application filed by appellant pointing out that the section 35F reproduced in the order [paragraph 4] is as it existed prior to 06.08.2014 and that the explanation containing the definition of term ‘duty demanded' excludes the interest payable. Held: Paragraphs 4 is replaced - Bench also observes that there has been another error made by the applicants in their appeal memorandum inasmuch as while no penalty is in dispute, in the prayer made in their appeal memorandum, they had approached the Tribunal to set aside interest and penalties and which led to an error in the order - Noting that in the instant case there is no demand of duty or penalty but only interest is in dispute and since ‘interest' is specifically excluded from the purview of section 35F of the CEA, 1944, there is no need to make any pre-deposit - Paragraphs 4.1, 5 also replaced - Application disposed of: CESTAT [para 3, 4.1]

Application disposed of

2016-TIOL-2238-CESTAT-MUM

CHARISMA JEWELLERY PVT LTD Vs CC: MUMBAI CESTAT (Dated: August 5, 2016)

Cus - Section 129B(2) of the Customs Act, 1962 - Error apparent on face of record requiring rectification - in paragraph 12, in the 10th line 'section 26 of the SEZ Act, 2005' to be read as 'section 30 of the SEZ Act, 2005' - CESTAT had in its order dated 21.01.2016 - 2016-TIOL-1963-CESTAT-MUM held that bringing out of goods from a SEZ fails to meet definition of "import" under the Customs Act, 1962 and allowed the appeal: CESTAT [para 2]

Rectification made