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Case Laws
Showing 81 to 100 of 676 Records
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2007 (7) TMI 639 - KARNATAKA HIGH COURT
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... ... ..... hall furnish annual returns of these scientific research projects to the Council before 31st May, of each year, at the latest in such forms as may be laid down and intimated to them for this purpose. The Association shall furnish a copy of annual statement of accounts to the Council by 31st May of each year and a copy of such statement to Income Tax Commissioner. 38. The notification was effective from 1.9.1981 to 24.4.1993. The Assessing Officer and the I Appellate Authority had found fault with the Assessee for not producing the certificate from the appropriate authority regarding fulfillment of conditions stipulated in the Notification. Therefore we hold that the order of the Tribunal cannot be sustained. In the result, we restore the order of the Appellate Authority and Assessing Officer, and answer Question No.3 in negative. 39. These references stand disposed of accordingly. A copy of this order shall be sent to the Tribunal as required under section 260(1) of the Act.
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2007 (7) TMI 638 - ITAT AHMEDABAD
Undisclosed income - Search and seizure u/s 132 - seizure of incriminating documents - Addition on the basis of statement made by assessee’s partner - Difference of opinion between the two learned Members - Third Member Order - Whether, the Tribunal delete whole of the undisclosed income of ₹ 10 lakhs or should restrict the addition on account of ‘on-money’ to ₹ 1,50,000? - statement retracted from the original statement.
Order ld JM - HELD THAT:- learned Judicial Member took note of the specific findings/observations of the CIT(A) to the effect that (a) the statement of Shri Kamal Shah was taken on record based on mere suspicion, (b) the same cannot be treated as an admission and cannot be treated as material for framing the assessment and (c) the Assessing Officer has not brought on record any cogent material or evidence in respect of on-money receipts
The learned JM observed that the revenue has not disputed the correctness of this finding and hence the conclusion reached by the CIT(A) has to be accepted. The alternative contention of the revenue, on the basis of the order of the Tribunal in the case of Adinath Construction that at least 15 per cent of the receipts should be treated as undisclosed income was also rejected on the ground that in the case of Adinath Construction, a diary was found in which the details relating to the receipt of on-money were found to be recorded. Moreover, in that case, the assessee itself has accepted a receipt of ₹ 14,22,000, but in the present case, there was no such diary nor was there such admission.
Order Ld AM - The learned AM took note of the conduct of the assessee in so far as that the disclosure was made by the managing partner of the assessee-firm, he had explained the modus operandi of charging on-money, explained the investment of such money and absence of duress while recording the statement. The learned AM held that these facts confirmed the factum and practice of charging on-money. Finally, though he did not much agree with the alternate contention to treat only 15 per cent of the gross on-money as the assessee’s income, yet, he sustained the addition to that extent only, i.e., at ₹ 1,50,000.
Third Member Order - The main reasons given by the learned AM for his conclusion. The first reason which he considers to be a crucial pointer is that Shri Kamal Shah is the managing partner of the assessee-firm and in fact, is one of the main persons who is in the know of the affairs of the business. This fact is undisputable. However, having retracted from the original statement, the latter does not lead us to anywhere. The search was on the group as a whole consisting of several entities. The statements that he may have given during the search are for the group as a whole and though in the statement he has given the break-up of disclosure, it is not corroborated by anything that might have been unearthed during the search. There may have been hundreds of reasons and thoughts crossing in the mind of the deponent during the search and it is not expected that whatever is reeled out during the search is only after proper application of mind. He may have explained the modus operandi of charging on-money, or the avenues and the destination of such money. Again, this may be true for the group as a whole but the retracted statement does not lead to the conclusion that the particular assessee before us had an undisclosed income of ₹ 10 lakhs.
The second reason given by the learned AM is that enhancing the figure of disclosure two months later shows proper application of mind and also absence of any duress while giving the statement. Well, there may not be any evidence of coercion being exercised by the search party, there may not be any duress also, but existence of confusion cannot be ruled out. Duress has to be distinguished from confusion. Duress is a constraint illegally exercised to force a person to perform some act.
It is highly philosophical to say that restricting the addition only in the entity where material is found, betrays the thinking and the machination employed by the assessee, using it as a ploy to make travesty of the entire judicial process of the search and seizure proceedings. All said and done where is the evidence to show that assessee had any undisclosed income barring the statement given by Shri Kamal Shah while under utter state of confusion.
As a matter of fact, what has been stated about the so called machination of the assessee is an ill-founded and unwarranted allegation against the assessee. Further, it is interesting to note that though the learned AM has observed that the alternate argument of treating 15 per cent of the gross on-money as income defects the assessee’s case in this regard. Despite this observation, ultimately, he sustains the addition to that extent only. Therefore, I am convinced that there being no spectre of evidence regarding undisclosed income, no addition can be sustained. I am in agreement with the view taken by the learned JM.
In view of majority decision, the addition of ₹ 10 lakhs on account of undisclosed income having been sustained by the CIT(A) stands deleted and assessee’s appeal allowed on this point.
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2007 (7) TMI 637 - CESTAT BANGALORE
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... ... ..... refund would not be governed by Section 11B of the Central Excise Act. Further he relied on the following case laws. (1) National Tobacco Corporation of India - 1978 (2) E.L.T. J416 (S.C.) (2) Hexacom (I) Ltd. v. CCE - 2006 (3) S.T.R. 131 (Tribunal) 2003 (156) E.L.T. 357 (Tribunal) (3) CCE v. M.A. Financial Services - 2006 (2) S.T.R. 350 (Tri.-Kol) (4) Karnik Maritime Pvt Ltd. v. CCE - 2007 (6) S.T.R. 314 (Tri. - Mum) (5) CCE v. Jai Laxmi Finance Co. - 2006 (3) S.T.R. 25 (Tribunal) (6) CCE v. Indian Ispat Works (P) Ltd. - 2006 (3) S.T.R. 161 (Tri.-Del) 3. The learned SDR is not. in a position to provide contra decisions. 4. On a careful consideration of the issue, I feel that there is enough justification for waiver of deposit of the amount demanded as prima facie, the appellant has a strong case on merits. Hence, I order waiver of the deposit of the amount demanded and stay of recovery proceedings till the appeal is decided. (Pronounced and dictated in open Court)
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2007 (7) TMI 636 - ANDHRA PRADESH HIGH COURT
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... ... ..... 2000 (5) ALD 14 (SC) -(2000) 4 SCC 342, the Supreme Court observed "This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases." 42. This maxim applies in all its force to the fact situation on hand. 43. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot issue any mandamus compelling the Management of the College to perform an impossible task. 44. For all the aforesaid reasons, we find no merit in this appeal. 45. The writ appeal fails and the same shall accordingly stand dismissed without costs.
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2007 (7) TMI 635 - MADRAS HIGH COURT
Disallowance u/s 40A(3) - cash payments/purchases - Job work of stitching of clothes for exporters - HELD THAT:- In this case, the assessee did not claim any deduction with regard to the purchase made by him. So, having considered the nature of business and the assessee's acceptance before the AO and the lack of positive evidence from the AO to make an addition that can be sustained, it is reasonable to accept what has been offered by the assessee voluntarily for the purpose of assessment.
As an addition has been made in this case and also no further deduction claimed in respect of the purchases by the assessee, no further disallowance could be made. When the GP rate is applied, that will take care of everything and there is no need for the AO to make scrutiny of the amount incurred on the purchases by the assessee. Taking note of the fact that the assessee is a tailor and is doing tailoring on job work basis and also he has not maintained the accounts and vouchers properly, the assessee had correctly and voluntarily offered the said amount for assessment.
Applying the principle laid down in the case of CIT vs. Banwarilal Banshidhar [1997 (5) TMI 37 - ALLAHABAD HIGH COURT], the Tribunal is right in its view that no disallowance could be made. So, both the first appellate authority as well as the Tribunal have considered the relevant facts and came to the correct conclusion that no disallowance could be made by the AO.
The Revenue is also unable to bring to the notice of this Court any contra judgment or any compelling reason to take a different view. The concurrent finding given by both the authorities below is based on valid materials and evidence. In the case of CIT vs. P. Mohanakala & Ors.[2007 (5) TMI 192 - SUPREME COURT], held that whenever there is a concurrent finding by the authorities below, no interference should be called for by the High Court. Therefore, we do not find any error or legal infirmity in the order of the Tribunal so as to warrant interference.
Thus, no substantial question of law arises for consideration of this Court and accordingly the tax case is dismissed.
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2007 (7) TMI 634 - RAJASTHAN HIGH COURT
Classification of two products - Keo Karpin Hair Vitalizer - Keo Karpin Baby Oil - whether the particular product is a drug or medicine or medicinal preparation or pharmaceutical preparation or a cosmetic?
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2007 (7) TMI 633 - BOMBAY HIGH COURT
Whether an assessee can avail Modvat credit on capital goods namely M.S. Angles, M.S. Sheets, Plates, Channels, Pipes and Tubes under Rule 57Q of the Central Excise Rule, 1944 although these goods are not used in relation to the manufacture of the final products?
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2007 (7) TMI 632 - SC ORDER
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... ... ..... ion on the ground that almost all the prayers raised in the contempt petition have been accepted by the department. Permission granted. The Contempt Petition is dismissed as withdrawn
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2007 (7) TMI 631 - SC ORDER
Duty drawback - the decision in the case of RUBFILA INTERNATIONAL LTD. Versus COMMISSIONER OF CUSTOMS, COCHIN [2005 (3) TMI 309 - CESTAT, BANGALORE] contested - Held that: - the decision in the above case upheld - appeal dismissed.
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2007 (7) TMI 630 - CESTAT AHMEDABAD
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... ... ..... ion of the Customs Act. On the other hand, we find that the raw materials were admittedly issued for manufacture and a portion of the finished goods have been held to be rejects and waste and they were cleared in the domestic market as per the permission granted by the Development Commissioner. Under these circumstances, no case of diversion or use of the raw materials procured duty free for a purpose other than intended purpose, has been made out. Therefore, no valid grounds have been adduced to interfere with the findings of the Commissioner in so far as non-demand of duty on the raw materials and not taking the consequential penal action. 6. In identical circumstances, appeal by the Department as well as appeal by the party were dismissed by the Tribunal in the case of Mahalakshmi Exports in Order No. A 595 & 596/WZB/Ahd/07, dt.14.3.07. 7. In the light of the above, the appeals by the Department as well as appeal by M/s Goyal Synthetics and the Director are dismissed.
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2007 (7) TMI 629 - SUPREME COURT
Whether meaning of word 'made' occurring in sub-section (4) of Section 126 of the Delhi Municipal Corporation Act, 1957 has to be taken as a date of passing the order or the date when it was communicated to the party concerned?
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2007 (7) TMI 628 - SC ORDER
Smuggled goods - Burden of proof - the decision in the case of COMMISSIONER OF CUSTOMS (PREVENTIVE) , MUMBAI Versus AAKASH ENTERPRISES [2006 (3) TMI 174 - BOMBAY HIGH COURT] contested - Held that: - In view of the dismissal of SLP (C) CC No. 8594/2006, this Special Leave Petition is dismissed.
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2007 (7) TMI 627 - CESTAT MUMBAI
Waiver of pre-deposit - CENVAT credit - commission agent services for promoting the sale of the goods - Held that: - The commission agents prima facie do promote the sale and once the definition of the input service includes services used for advertisement or sale promotion, market research the same shall be squarely covered by the definition of the input service, more so when it forms part of assessable value for which no deduction is permissible. In respect of the balance amount, we find that an amount of ₹ 13,27,497/- has already been deposited and another ₹ 6,59,506/- relates to advertisement services for which the Commissioner has not cited any evidence to show that the advertisement was done both for manufactured goods as well as traded goods.
Pre-deposit waived.
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2007 (7) TMI 626 - DELHI HIGH COURT
Income from undisclosed sources - share capital - failed to establish the credit-worthiness and genuineness of the transactions - Whether Tribunal was correct in law in deleting the addition made by the Assessing Officer u/s 68 - HELD THAT:- As per findings of the Tribunal, the CIT(A) did not dispute the Assessee’s contentions that payments have been made by account-payee cheques and addresses of the shareholders had been furnished. However, CIT(A) held that the assessee failed to establish the creditworthiness of the cash creditors and genuineness of the transactions.
It is apparent from the order of the Tribunal that it has not gone into the question of credit worthiness of creditors and genuineness of the transaction. Since, in the present case, the Tribunal has not gone into credit worthiness of the creditors and genuineness of the transaction, it is a fit case which ought to be remanded to the Tribunal give its finding on these two issues.
Learned counsel for the revenue has also stated during the course of argument that she has no objection if the matter is remanded on these issues. Thus, we remand the matter back to the Tribunal with directions to give its finding on creditworthiness of the creditors and genuineness of the transaction.
Accordingly, the present appeal stands disposed of.
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2007 (7) TMI 625 - SC ORDER
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... ... ..... condoned. Heard. The Civil Appeal is dismissed.
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2007 (7) TMI 624 - GUJARAT HIGH COURT
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... ... ..... appellant had produced pre-inspection certificate by an agency having its branch in Abidjan. Even fact has not been denied that the respondent has not imported any arms or ammunitions or objectionable material, and a thorough inspection of the consignment was undertaken. Considering these accepted facts, we see no merit in this appeal. The appeal stands dismissed.
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2007 (7) TMI 623 - DELHI HIGH COURT
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... ... ..... ined the investigation. The applicant joined the investigation and also recorded the statement. The correctness or otherwise of his contentions that the statements were recorded under duress will be examined later. One more factor which is relevant is that even after taking him into custody the respondent choose not to interrogate him. In these circumstances, I am of the opinion, having regard to the role alleged against the petitioner and the facts of this case, he would be entitled to relief. The application is accordingly allowed. The applicant is hereby directed to be enlarged on bail subject to his furnishing a personal bond in the sum of ₹ 50,000/- with one surety of the like amount to the satisfaction of the concerned court and subject to the condition that he shall join the investigation as and when required. He is also directed to surrender his passport to the trial court and enjoined from leaving the country without permission of the trial court. Order Dasti.
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2007 (7) TMI 622 - CESTAT CHENNAI
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... ... ..... ice for the purpose of levy of service tax under Section 65 (11). On the facts of this case, there was no element of financial service in the activity of leasing out of ATMs by the assessee to banks and, therefore, it could not be classified as “banking and other financial services”. We have heard ld. SDR who has reiterated the findings of the Commissioner. 3. After giving careful consideration to the submissions, we have found force in the arguments of ld. counsel. Prima facie, no service of financial kind was involved in the leasing of ATMs by the assessee and no transfer of information by the assessee was also involved therein. The expression “equipment leasing services” should be understood ejusdem generis with the preceding expression “financial leasing services”. 4. In the result, there will be waiver of pre-deposit and stay of recovery in respect of the amounts of tax/cess/penalties. (Dictated and pronounced in open Court)
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2007 (7) TMI 621 - SC ORDER
Demand - Show cause notice - the decision in the case of CARBORANDUM UNIVERSAL LTD. Versus COMMISSIONER OF C. EX., CHENNAI [2006 (11) TMI 486 - CESTAT, CHENNAI] contested - Held that: - delay condoned - appeal dismissed.
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2007 (7) TMI 620 - BOMBAY HIGH COURT
Discretion to impose penalty - enhancement of penalty - Held that: - This is purely an exercise in discretion based on a finding of fact which it was empowered. No question of law, therefore, arises - appeal dismissed.
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