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Showing 61 to 80 of 781 Records
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2007 (8) TMI 766 - SUPREME COURT
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... ... ..... Since the writ appeal is in continuation of the original order passed in the writ jurisdiction by learned Single Judge, it cannot operate as an estoppel against learned counsel for the respondent to press the same. If the finding recorded by the Inquiring Officer is not sound and it relates to perversity then the appellate court in writ appeal cannot estop the counsel from raising the same. More so, the Division Bench after considering the matter has found that the whole approach was perverse because the respondent alone has been made a scapegoat. When the decision of all the three committees was unanimous, then to take one and put the entire blame on him is definitely perverse approach and the Court cannot stand to the technicalities so as to defeat the ends of justice. Thus, the submission of learned Additional Solicitor General has no merit. 10. As a result of our above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
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2007 (8) TMI 765 - MADRAS HIGH COURT
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... ... ..... involved in works contract". 25. The activity of the petitioner, as already discussed, which is developing and taking the positive prints from the negative, is a composite transaction of sale and service. The authorities below have miserably erred in treating the transaction as an outright sale under Section 3 of the T.N.G.S.T.Act, as the transaction is complex one containing element of sale of property in goods and also service and skill. Even if the dominant intention of the contract is printing positive photographs from the negative, it would amount to only "works contract" and the transaction could be assessed to tax only under section 3-B of the T.N.G.S.T.Act. Hence, the orders impugned right through are hereby set aside with a direction to the authorities to make the assessment under section 3-B of the T.N.G.S.T.Act. 26. Accordingly, the writ petition is disposed of. However, there is no order as to costs. Consequently, the connected W.P.M.P. is closed.
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2007 (8) TMI 764 - DELHI HIGH COURT
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... ... ..... be appropriate to limit the claim of the assessee only to the extent of the actual liability. It was found that there is no error in directing the Assessing Officer to make a verification with regard to the excess payment, if any and to tax the amount if it has not already been taxed. The Tribunal also limited the liability of the actual amount to the assessment year under consideration. 6. We cannot find any fault in the view taken by the Tribunal primarily because the liability was required to be discharged by the assessee on demand and the assessee had no option but to make the payment. This clearly falls within section 43B(a) of the Act. 7. Learned counsel for the revenue contended that the amount deposited by the assessee is not customs duty at all. No such argument was canvassed before the Tribunal and we cannot permit learned counsel to raise such an argument at this stage. 8. In our opinion, no substantial question of law arises for our conside-ration. 9. Dismissed.
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2007 (8) TMI 763 - ANDHRA PRADESH HIGH COURT
Principles of natural justice - the order under challenge is liable to be set aside only on the ground of denial of opportunity of personal hearing to the petitioner in terms of the prayer made by it in reply to the show cause notice
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2007 (8) TMI 762 - DELHI HIGH COURT
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... ... ..... in its possession, so the Assessing Officer was not justified in taking the annual value for the ground floor and the basement under occupation of the assessee for computing the income from house property. 10. Since the assessee has taken the actual rent received as the basis for computing income from house property, which is as per section 23 of the Act, we find no ground to differ with the reasoning given by the Tribunal that the Assessing Officer was not justified in taking the annual value for the ground floor and the basement under occupation of the assessee for computing the income from house property. 11. Thus, the order of the Tribunal does not give rise to a question of law, much less a substantial question of law, to fall within the limited purview of section 260A of the Act, which is confined to entertaining only such appeal against the order which involves a substantial question of law. 12. Accordingly, all the present appeals filed by the Revenue are dismissed.
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2007 (8) TMI 761 - CESTAT KOLKATA
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... ... ..... , the Appellant can only be entitled for exoneration from the penalty on this score while confirming the duty-demand. In so far as the CVD and cess are concerned, those have been fairly agreed to be payable. Accordingly, no intervention is called for. So far as the penalty is concerned, the conduct of the Appellant is not brought out categorically to be either contumacious or mischievous on record. In absence of any means rea being brought out against the Appellant being imputed to charges, imposition of such a high dose of penalty of ₹ 2,63,908.00 (Rupees two lakhs sixty-three thousand nine hundred and eight) is uncalled for. Accordingly, a token penalty of ₹ 50,000.00 (Rupees fifty thousand) may be levied. It is ordered accordingly. The entire demand position may be re-calculated taking the aforesaid observations into consideration while giving effect to this Appellate Order. The appeal is accordingly allowed partly. (Dictated and pronounced in the open court).
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2007 (8) TMI 760 - CALCUTTA HIGH COURT
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... ... ..... al. We have absolutely ad-idem with the opinion expressed by the learned Tribunal and we do not find that there is any substantial question of law is involved in view of the judgment of the Supreme Court in the case of Malabar Industries Company Ltd reported in 243 ITR 83. Hence we dismiss this appeal being ITA No. 540 of 2007.
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2007 (8) TMI 759 - DELHI HIGH COURT
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... ... ..... nsel for the Revenue that the Tribunal is a fact finding authority and should have adjudicated the matter on merits. We are of the view that the issue raised by the Revenue is not at all substantial and the amount in dispute is quite insignificant, considering that the case is one of a block assessment. There is no justification for the Income Tax Department to go on burdening the Tribunal, the Court with every case right up to the end. Apart from burdening the Tribunal and Courts, it also causes avoidable expenses to the Assessee. It is common knowledge that the Assessee has to pay for legal fees and merely because the Income Tax Department has got unlimited resources, there is no justification that every case should be dragged on. Under the circumstances, we are of the view that the Tribunal was justified in refusing to entertain the appeal because of the insignificant amount involved in the matter. No substantial question of law arises. We, therefore, dismiss this appeal.
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2007 (8) TMI 758 - CESTAT BANGALORE
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... ... ..... artment has shown the relevant records and from the relevant record, it is seen that on 26.2.1999, the concerned order has been sent by registered post. In the register, this is mentioned in Sl. No. 730. In these circumstances, we cannot hold that there is no proof of service of the order by registered post. In that sense, this case is distinguishable from the one decided by this Bench earlier. Therefore, we cannot follow the ratio of the earlier decision for the simple reason that proof of dispatch of the order by registered post is enough to show that the order has been served and there will be a presumption that the order has been sent. In that sense, the statutory requirement has been fulfilled. In view of this, we do not find sufficient reason for condonation of delay. Therefore, we dismiss this Miscellaneous Application for condonation of delay and consequently, the stay application and appeal also stand dismissed as time barred. Pronounced in open Court on 10.08.2007.
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2007 (8) TMI 757 - CESTAT CHENNAI
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... ... ..... e tax is paid for maintaining windmills and the power generated is supplied to TNEB. Excisable goods are manufactured in the assessee’s factory situated at a location far away from the windmills using power drawn from the TNEB grid, like any other unit. Whether the service tax paid on expenses incurred for maintaining assessee's windmills can be availed by the manufacturing unit on the basis that TNEB is compensated for the power supplied to the factory in kind to the extent the power generated with the wind mills is a contentious issue which has to be decided after detailed examination of the arguments of both parties at the final hearing stage. The appellants have already paid the service tax and cess demanded. The interest due is not quantified. In the circumstances, I order that there will be waiver of pre-deposit and stay of recovery of interest and penalty imposed on the appellants till the final disposal of the appeal. (Dictated and pronounced in open Court)
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2007 (8) TMI 756 - CESTAT NEW DELHI
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... ... ..... ner of Central Excise, Jaipur vs. Ashok Leyland Ltd. Reported in 2001 (127) ELT 804 (Tri.Del.) held, that so long as there is no discrepancy in the documents on the strength of which the credit was availed, it cannot be denied to the assessee. 7. The learned authorized representative (DR) for the department has pointed out that, the Revenue has filed an appeal against the order dated 30.11.2004, passed in the appeal of the Revenue being Excise Appeal No. 2262 of 2004 in which the respondent had succeeded on similar facts. Needless to say, that since that decision is not stayed and it is rendered in their own case by the Division Bench, it is binding on the Single Member Bench and is required to follow, without prejudice to the contention that the Revenue may raise against the present order in a similar challenge before the High court. 8. For the foregoing reason, there is no substance in the appeal and it is hereby dismissed. (Order dictated and pronounced in the open Court)
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2007 (8) TMI 755 - SC ORDER
Whether the printing on the package is merely incidental or primary?
Held that: - keeping in view the conflict of opinion, on the point involved, the matter is placed for hearing before a Larger Bench.
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2007 (8) TMI 754 - CESTAT BANGALORE
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... ... ..... ished by the appellants to an expert body like National Informatics Centre. The same has not been done. To arrive at conclusion on reading the contract may lead to certain assumption and presumption. It may not be scientific also to crush aside the technical information given by the appellants by making our own reading of the terms of the contract. In view of Revenue not having produced any technical opinion, the appellant’s contention that Revenue has failed to discharge their burden has to be taken into account. At this stage prima facie the appellants have made out a case in their favour, therefore, the stay application is allowed granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. As revenue involvement is more, appeal to come up for final hearing on 22nd November 2007. Commissioner to file his para-wise comments and also reply to this technical literature before the date of final hearing. (Pronounced and dictated in open Court)
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2007 (8) TMI 753 - DELHI HIGH COURT
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... ... ..... ylal Investment Co. (P.) Ltd.’s case (supra) and Kinetic Motor Co. Ltd. v. Dy. CIT 2003 262 ITR 330 but what were the reasons given by the Mumbai Bench for arriving at the conclusions that it did is not at all clear. 9. Under the circumstances, we are of the view that it would be appropriate if the matter is remanded to the Tribunal for a fresh consideration on merits. If the Tribunal continues to hold the view that the decision of the Bombay High Court is not applicable either on facts or law, it should clearly state the reasons for its conclusion. The Tribunal should also consider the decision of any other superior Court cited before it by any of the parties. 10. The substantial question of law is answered in the negative and the impugned order of the Tribunal, is set aside. The appeal is allowed with a direction that the matter stands remanded to the Tribunal for a fresh disposal on merits. 11. The parties will appear before the Tribunal for directions on 11-9-2007.
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2007 (8) TMI 752 - SUPREME COURT
Murder - gun shot injury - Petition u/s 482 CrPC to quashed the order passed u/s 319 summoning the respondent No. 2 to face the trial - Plea of alibi - statements of the witnesses u/s 161 - accused here viz., Kapil Dev Singh (respondent No.2) and Daya Singh - accused of the tripple murder case were putting pressure on Nigam Singh not to give evidence in the said case - HELD THAT:- We are of the opinion that the statements of the witnesses u/s 161 CrPC being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition u/s 482 Cr.P.C. As mentioned, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded u/s 161 CrPC. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained.
The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed u/s 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh [2002 (4) TMI 958 - SUPREME COURT] held '' The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order u/s 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."
Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge as infructuous.
The learned Sessions Judge trying the case of co-accused Daya Singh seems to have been swayed by the fact that the High Court had not only set aside the order passed by the learned Sessions Judge u/s 319 CrPC by which the respondent No. 2 Kapil Dev Singh was summoned to face trial but had also recorded a finding in his favour that he was present in a meeting in Nagar Nigam, Allahabad. Since we are setting aside the order of the High Court, the aforesaid finding of the learned Sessions Judge would automatically go and cannot stand.
Thus, we consider it desirable that the criminal revision filed by Rajendra Singh against the acquittal of Daya Singh should be heard by the High Court as expeditiously as possible. We accordingly request the High Court to decide Criminal Revision (Rajendra Singh v. Daya Singh) expeditiously preferably within a period of four months of presentation of a certified copy of this order before the High Court.
In the result, the appeal succeeds and is hereby allowed. The impugned judgment and order of the High Court is set aside and the order passed by the learned Sessions Judge, Allahabad, summoning respondent No. 2 Kapil Dev Singh to face trial is restored.
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2007 (8) TMI 751 - DELHI HIGH COURT
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... ... ..... en reproduced in the order of the Tribunal and the Tribunal has observed that the reasons do not indicate anywhere that any income has escaped assessment. It has also been mentioned that mere under-assessment will not make it a case of omission to disclose truly and fully all material facts. Since there is nothing to suggest that the assessee failed to truly and fully disclose the material facts, issuance of a notice for re-opening the assessment would be unjustified. 5. We do not find any error in the view taken by the Tribunal. 6. No substantial question of law arises in this appeal. 7. It is accordingly dismissed.
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2007 (8) TMI 750 - DELHI HIGH COURT
Block Assessment - Unexplained Payment Of Commission - search and seizure operation u/s 132(1) - Excess stock of goods found - HELD THAT:- In the present case, nothing was found during the search which would suggest that the books maintained by the assessee were unreliable. It is only subsequent to the search and with a view to verify the correctness of the books that the Deputy Director of Income-tax recorded the statement of V.P. Jain. Whatever be the merits or demerits of both statements of V.P. Jain, unless they could be directly connected with the recovery of any incriminating material during the search, they cannot be used against the assessee.
The view expressed by this Court in Ravi Kant Jain [2001 (3) TMI 52 - DELHI HIGH COURT] is, of course, binding on us and we have also followed the view expressed by the Rajasthan High Court in Elegant Homes [2002 (8) TMI 38 - RAJASTHAN HIGH COURT]. In CIT v. Jupiter Builders (P.) Ltd.[2006 (9) TMI 127 - DELHI HIGH COURT], this Court reiterated the law that the undisclosed income must be unearthed as a result of the search.
We are clearly of the opinion that in the absence of any incriminating material found during the search conducted on 11/12-9-2001 in the premises of the Bansal Group, the statement of V.P. Jain recorded on 25-9-2001 and on 14-12-2001 could not be used for proceedings under Chapter XIV-B of the Act.
We also find that the statement of V.P. Jain was recorded behind the back of the assessee. When the assessee was in fact allowed to cross-examine V.P. Jain, after his second statement was recorded on 14-12-2001, V.P. Jain had retracted from his earlier statement. The Assessing Officer, nevertheless, relied upon the statement given by V.P. Jain on 25-9-2001 completely disregarding his subsequent statement.
Thus, we are of the view that the revenue has not been able to raise any substantial question of law which would necessitate admission of this appeal.
Excess stock - It was contended by the assessee that different bundles have a different weight and it cannot be said with any degree of certainty that the average weight of the goods was 65 kg. per bundle. That the entire exercise was an estimate is confirmed by the CIT(A) who arrived at an average weight at 60 kg per bundle. Similarly, in respect of the fine wire products, the Assessing Officer took the average weight at 20 kg. per bundle and this was reduced by the CIT(A) to 16 kg. per bundle.
The mere fact that some employees of the assessee signed the panchnama does not mean that they certified the correctness of the number of bundles or the average weight of each bundle. They only certified that they were witnesses to the proceedings. What conclusions have to be drawn from the panchnama is of no concern to those employees.
Of course, the best method of determining the number of bundles and their average weight would be to actually count the bundles and use machines/cranes for weighing each bundle. This is no doubt a tedious exercise but where a liability is sought to be foisted upon an assessee, the revenue has to be a little more serious while exercising powers conferred upon it under the Act. Mere guess work or an estimate cannot be an adequate substitute for a scientific investigation or carrying out some empirical study. The officers who conducted the search did not want to take the necessary trouble which, of course, would have been time consuming, but the impact of making a guesstimate can be quite damaging insofar as the assessee is concerned. The assessee cannot be made to suffer the consequences of lethargy on the part of the officers of the revenue.
Thus, we are of the opinion that the Tribunal rightly came to the conclusion that the alleged excess stock calculated by the revenue needs to be deleted. It is, of course, not possible today to redetermine the stock so the question of any remand does not arise.
In our view, no substantial question of law arises. Dismissed.
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2007 (8) TMI 749 - DELHI HIGH COURT
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... ... ..... tary to the Government of India, WP (C) No. 999/2003 decided on 25th March, 2004. However, we find that the decision turned on its own facts inasmuch as the petitioner in that case had not specifically stated in the pleadings that no notice was issued to the petitioner. In so far as the present case is concerned, we find from paragraph 1 and Ground B of the writ petition that there is a specific averment that no notice was issued to the petitioner before the revisionary authority took its decision. Under the circumstances, the decision relied upon by learned counsel for the respondent is clearly distinguishable. 9. With these observations, we set aside the impugned order dated 28th March, 2002 and direct the parties to appear before the revisionary authority on 25th September, 2007 at 11.00 AM for directions. The revisionary authority will then fix a date of hearing and pass a fresh order after hearing both the parties. 10. The writ petition is allowed accordingly.
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2007 (8) TMI 748 - ITAT COCHIN
Deduction u/s 36(1)(viia) - bad debts written off - Pro rata disallowance u/s 14A - Broken period interest paid on the purchase of securities - Applicability of s. 40A(9).
Deduction u/s 36(1)(viia) - bad debts written off - HELD THAT:- In the opinion of the AO, the proviso to s. 36(1)(vii) and s. 36(2)(v) clearly states that the assessee has to debit bad debts claimed during the year to the provision for bad and doubtful debts and deduction of bad debts u/s 36(1)(vii) of the Act is limited to the amount which exceeds the credit balance available in the provision for bad and doubtful debts u/s 36(1)(viia) of the Act. The AO asked the assessee to furnish the break-up of the bad debts pertaining to the rural branches as well as non-rural branches. The assessee filed the reply contending that the entire write off of bad debts pertains to the non-rural branches and provision for bad and doubtful debts relating to advances made on rural branches.
Finally, the AO came to the conclusion that the provision for bad and doubtful debts relating to 10 per cent of the rural advances for the AY 2002-03 is to be allowed, but at the same time, the AO was of the opinion that total sum to be deducted from the total bad debts written off as per proviso to s. 36(1)(vii). In short, the AO made the disallowance in respect of the bad debts written off and provision for bad and doubtful debts.
We find that this issue is covered in favour of the assessee by the decision of the jurisdictional High Court in the case of South Indian Bank Ltd. [1999 (3) TMI 43 - KERALA HIGH COURT]. Respectfully following the same as well as the decision of this Tribunal in assessee's own case, we hold that the CIT(A) has rightly deleted the addition made by the AO in respect of the bad debts written off. We, therefore, confirm the order of the CIT(A) on this issue.
Pro rata disallowance u/s 14A - expenditure estimated to be incurred for earning tax-free income - HELD THAT:- An identical issue had come for the consideration of this Tribunal in the case of Dhanlakshmi Bank Ltd.[2006 (7) TMI 524 - ITAT COCHIN] held that; '' We are, therefore, of the opinion that in spite of the introduction of s. 14A, the principles laid down by the apex Court in the case of Rajasthan State Warehousing Corporation [2000 (2) TMI 5 - SUPREME COURT] still hold good law and as there is no clear identity in respect of the funds applied by the assessee for making the investment for earning the tax-free income as well as taxable income and as assessee's business is indivisible one, the method adopted by the AO for making the disallowance is not a permissible method and AO was not justified in making the disallowance from the expenditure in respect of the interest attributable to investment on tax-free bonds and expenditure incurred for earning the dividend income."
In our opinion, the same principles are applicable to the assessee's case. We, therefore, uphold the order of the CIT(A) on this issue.
Addition in respect of the broken period interest paid on the purchase of securities - HELD THAT:- An identical issue had come for the consideration before, in the case of Nedungadi Bank Ltd.[2002 (11) TMI 29 - KERALA HIGH COURT] held as under: '' Following the decision in CIT vs. South Indian Bank Ltd.[2002 (11) TMI 53 - KERALA HIGH COURT] held that the interest paid for the broken period would constitute allowable outgo in the hands of the assessee and is an admissible deduction in the computation of the total income of the bank under the head 'Profits and gains of business or profession'.
Respectfully following the ratio in the above precedent, we hold that the CIT(A) has rightly deleted the addition in respect of broken period interest made by the AO. We, therefore, confirm the order of the CIT(A) on this issue.
Applicability of s. 40A(9) - Disallowance on the contribution to medical benefit scheme - HELD THAT:- On the perusal of the said scheme, it is seen that the fund is to be created with the contribution from the bank as well as pensioners and for administration of the funds, a managing committee was formed. As per the scheme, each member to the scheme and his/her respective spouse are the beneficiaries. It is further provided that the spouse of the member will continue to receive the benefit even after the death of the member. Certain ailments and diseases were specified which would be covered under the scheme and the maximum limit of reimbursement was restricted to Rs. 30,000. As per the terms of bipartite agreement between the associate bank management and the union, the assessee paid Rs. 50 lakhs as its contribution towards the formulation of the fund under the scheme.
On a bare reading of the sec 40A(9), it is very clear that any sum paid by the assessee as an employer towards setting up or formation of or as contribution to any fund, trust, company, AOP, BOI, etc. except to the extent provided by or under cls. (iv) and (v) of s. 36(1) or required by or under any other law for the time being in force is not an allowable expenditure.
In the present case, the fund is not controlled by the assessee bank. In our opinion, the decision relied on by the Revenue of Hon'ble Andhra Pradesh High Court in the case of Raasi Cement Ltd.[2004 (12) TMI 55 - ANDHRA PRADESH HIGH COURT] is not helpful. In our further considered opinion, the bona fide contribution made by the assessee as an employer to the fund set up as a part of the settlement between the assessee bank and its executive employees is not hit by sub-s. (9) of s. 40A. We, therefore, uphold the order of the CIT(A) on this issue.
In the result, the Revenue's appeal is dismissed.
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2007 (8) TMI 747 - DELHI HIGH COURT
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... ... ..... itional Commissioner of Income-tax cannot be an Authority to exercise or perform all or any of the powers and functions of an Assessing Officer to make an assessment of income and thereby quashing the assessment made by the Additional Commissioner of Income-tax?" 3. It is brought to our notice that section 2(7A) of the Income-tax Act, 1961 has been amended with retrospective effect from 1-6-1994 by Finance Act, 2007. 4. In view of this amendment, learned counsel for the parties submit that the question is required to be answered in the negative in favour of the revenue and against the assessee. 5. The result of this amendment would necessitate the matter being heard afresh by the Tribunal since it has not dealt with merits of the case. The appeal is disposed of. Parties will appear before the Tribunal on 18th September, 2007 for directions. CM No. 12922/2006 (stay) 6. No orders are required to be passed as the appeal is disposed of. 7. CM stands disposed of accordingly.
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