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2007 (8) TMI 746 - PUNJAB AND HARYANA HIGH COURT
... ... ... ... ..... inery is not used wholly for the purpose of assessee's business. Hon’ble the Supreme Court also referred its earlier judgment in Commissioner of Income-Tax Vs. Castle Rock Fisheries (1998) 231 ITR 304 wherein it was held that where the business of the assessee consists of hiring out machinery and/or where the income derived by the assessee from the hiring of such machinery is business income, then the assessee must be considered as having used the machinery for the purposes of its business. Learned counsel appearing for the respondents could not dispute this proposition of law laid down by Hon’ble the Supreme Court. Accordingly, following the dictum of law laid down by Hon’ble the Supreme Court in Shaan Finance (P.) Ltd.'s case (supra), the question deserves to be answered against the revenue. For the reasons recorded above, the question referred is answered against the revenue and in favour of the assessee. The reference is disposed of accordingly.
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2007 (8) TMI 745 - SUPREME COURT
Town Planning Acts - Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) has adopted the Land Acquisition Act, 1894 by reference - Interpretation of Section 127 of the MRTP Act - Whether, in any event, all the provisions of the Land Acquisition Act, as amended by Central Act 68 of 1984 with emphasis on Section 11A can be read into the provisions of the MRTP Act? - authority within six months of receipt of the purchase notice issued by the owner, applies to a State Government for acquiring the land as a step contemplated by Section 127 of the MRTP Act - Writ Petition to permit the appellant to develop the reserved land for residential purposes - HELD THAT:- The amendment introduced by Act 68 of 1984 provides that no declaration u/s 6 shall be made after the expiry of one year from the date of publication of the notification u/s 4(1) of the Act. It further provides that the Collector, after the declaration is made, has to take an order for acquisition, mark out the land available, issue notice to persons interested in the land to be acquired and for, passing an award containing the true area of the land acquired, the compensation that should be allowed for the land and the apportionment of the compensation among the claimants, if there are more than one.
Section 11A introduced by Act 68 of 1984 provides that the Collector shall make an award within a period of two years from the date of publication of the declaration and if no award is made within that period the entire proceedings for the acquisition of the land shall stand lapsed. Thus, the Land Acquisition Act, as amended in the year 1984 provides for two lapses of the acquisition; one, in a case where a declaration u/s 6 is not made within one year of the publication of the notification u/s 4(1) of the Act and; two, the award itself not being made within a period of two years from the publication of the declaration.
It is clear that when the MRTP Act was enacted, the Land Acquisition Act that was referred was the unamended Act of 1894. That Act did not contain either a provision for lapsing of the acquisition on the non issue of a declaration u/s 6 of the Act within one year of a notification u/s 4(1) of the Act or by the award not being rendered within two years of a declaration u/s 6 of the Act. These two time limits were prescribed by Act 68 of 1984.
When we interpret Section 127 of the Act, it is not possible to forget the impact of Section 126(1) of the Act. Obviously, the provisions have to be read harmoniously. The court can only postulate the question whether the authority under the MRTP Act has done which it possibly could, in terms of the statute. Therefore, while reading Section 127, we have to take note of the fact that the authority under the MRTP Act can only make an application for acquisition under the Land Acquisition Act and nothing more. Therefore, when Section 127 of the MRTP Act says that if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition the reservation shall be deemed to lapse.
We have to see what the Authority under MRTP Act has done. The first part of the provision above quoted is unambiguous and that is a case where the land is actually acquired. Or, in other words, the acquisition is complete. The second limb above quoted shows that it is possible to avert the lapse of the scheme if steps as aforesaid are commenced for its acquisition. The step that the authority under the MRTP Act can commence, is the step of applying to the State Government to acquire such land under the Land Acquisition Act. After all, the legislature has given the authority a locus poenitentiae for invoking the machinery for acquisition under the Land Acquisition Act.
Therefore, when a purchase notice is received by it, in all reasonableness, what it can do is to make an application to the State Government to make the acquisition within six months of the receipt of the purchase notice.
In Municipal Coproration of Greater Bombay vs. Dr. Hakimwadi Tenants Association & Ors. [1987 (11) TMI 386 - SUPREME COURT] this Court approved the view of the Bombay High Court that it is enough if the application is made by the Authority for acquisition of the land. Suppose, immediately on receipt of a purchase notice, the authority under the MRTP Act makes an application to the Government to acquire the land and for administrative reasons or otherwise it takes the Government time to initiate the proceeding and the six months expire in between, can it be postulated that the reservation has lapsed? In that case we will be compelling the authority under the MRTP Act to do something that it has no power to do.
According to me such an interpretation of the provision would be unreasonable and should be avoided. Here, the application has been made according to the respondents by the Chief Engineer as authorised by the local authority and to say that the letter written by him is unauthorised or is not adequate compliance of Section 127 of the MRTP Act appears to me to be unwarranted especially when we keep in mind the laudable objects of the MRTP Act.
The MRTP Act serves a great social purpose and the approach of the court to an interpretation must be to see to it that the social purpose is not defeated as far as possible. Therefore, a purposive interpretation of Section 127 of the Act so as to achieve the object of the MRTP Act is called for.
I would, therefore, hold that there has been sufficient compliance with the requirement of Section 127 of the MRTP Act by the authority under the Act by the acquisition initiated against the appellant in the appeal arising out of SLP(C) No.11446 of 2005 and the reservation in respect of the land involved therein does not lapse by the operation of Section 127 of the Act. But since on the main question in agreement with my learned Brothers I have referred the matter for decision by a Constitution Bench, I would not pass any final orders in this appeal merely based on my conclusion on the aspect relating to Section 127 of the MRTP Act. The said question also would stand referred to the larger Bench.
I therefore refer these appeals to a larger Bench for decision. It is for the larger Bench to consider whether it would not be appropriate to hear the various States also on this question considering the impact of a decision on the relevant questions. The papers be placed before the Hon’ble Chief Justice for appropriate orders.
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2007 (8) TMI 744 - DELHI HIGH COURT
... ... ... ... ..... was to change the flooring by replacing mosaic by marble. 3. Two decisions have been brought to our notice by learned counsel for the assessee, namely, CIT v. Bharat Commercial Corpn. 1997 226 ITR 242 (Pat.) and CIT v. HEDE Consultancy (P.) Ltd. 2002 258 ITR 380 1 (Bom.). In both these cases, in circumstances similar to the present case, it was held that the expenditure incurred for renovation would be revenue expenditure and section 32(1A) of the Income-tax Act, 1961 would not be attracted. Under the circumstances, following these two decisions, which we have no reason to disagree, we answer the questions in the negative, in favour of the assessee and against the revenue. 4. The reference is disposed of accordingly.
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2007 (8) TMI 743 - ITAT DELHI
... ... ... ... ..... the arguments is that the sum received by way of export incentive is not to be held as eligible for deduction while computing deduction under sub-section (3A) of section 80HHC for the reason that the provision similar to the Proviso appearing below sub-section (3) is not appearing below sub-section (3A). All these arguments are met while deciding the appeal by the Tribunal in the case of Sharda Exports and hence need not to be answered once again. We accordingly do not find any justification not to follow the judgment rendered by this Tribunal in the case of Sharda Exports." We find that the facts are identical, we accordingly hold that the assessee is entitled to deduction under section 80HHC in respect of such export incentive winch are to be treated as business profits. The Assessing Officer shall allow deduction under section 80HHC even in respect of such export incentives. 5. In the result, the appeal of the assessee is allowed and that of the revenue is dismissed.
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2007 (8) TMI 742 - ITAT JAIPUR
... ... ... ... ..... fact that in absence of maintenance of proper register, telephone, scooter/petrol expenses cannot be held to be incurred on the business purposes ignoring the possibility of personal user thereof. However, keeping in view the total turnover at around ₹ 79.96 Lac of the assessee we are of the view that disallowance made at ₹ 1,000 out of ₹ 5,614 towards claimed telephone expenses and disallowance of ₹ 2,416 out of the scooter/petrol expenses claimed at ₹ 12,091 is on higher side and thus restrict the disallowance at ₹ 2,500 in lumpsum on both the accounts. The objection No. 1 is thus partly allowed. Objection No. 2 22. The issue raised in this objection had already been decided in ground No. 2 of the appeal ITA No. 450/JP/2004 preferred by the revenue hereinabove. Following the decision taken therein this objection is partly allowed. 23. In result cross objection is partly allowed. 24. The order is pronounced in the open court on 27-8-2007.
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2007 (8) TMI 741 - PUNJAB & HARYANA HIGH COURT
... ... ... ... ..... e photocopies of invoices on which Modvat credit has been availed, bear a declaration to the effect ‘duty liability to be discharged under Rule 96ZP(3)’. If that be so, Coordinate Bench in the case of H.S. Sons v. CCE, Chandigarh reported in 2006 (75) RLT 438 had held that declaration as indicated in the invoices of the current case is a sufficient declaration for the purpose of taking deemed Modvat credit as per Notification No. 58/97-C.E.” 4. We have thoughtfully considered the submission made by the learned Counsel and have also perused the Order-in-Original, Order-in-Appeal and the order passed by the Tribunal. We do not feel persuaded to accept the contention raised because. 5. On the basis of the aforementioned findings as well as clear position of law, we are of the view that no substantive question of law warranting admission of these appeals would arise. 6. In view of the above, this appeal fail and the same is accordingly dismissed.
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2007 (8) TMI 740 - ITAT DELHI
Penalty imposed u/s 271(1)(c) - Prove genuineness of the transactions - inability to prove the share application monies considered as cash credits u/s 68? - concealment of income or furnished inaccurate particulars - not recordedrequisite satisfaction of the AO - non-application of mind - HELD THAT:- There is a difference between the two sets of expressions, namely, "fictitious" on the one hand and "doubtful" and "not proved" on the other hand. Thus, while concluding his reasoning and making the addition the Assessing Officer would appear to have abandoned his earlier view that the monies were received from fictitious persons and seems to have settled for less strong expressions. It is, therefore, somewhat difficult to assert that the Assessing Officer did reach the satisfaction in the course of the assessment proceedings that the assessee concealed its income or furnished inaccurate particulars thereof.
The last line in the assessment order to the effect that the penalty proceedings u/s 271(1)(c) have been initiated separately does not also amount to recording of the requisite satisfaction. In our opinion, the case falls within the ratio of the judgments of the Hon’ble Delhi High Court in CIT v. Ram Commercial Enterprises Ltd. [1998 (10) TMI 13 - DELHI HIGH COURT]; and Diwan Enterprises v. CIT [1998 (11) TMI 27 - DELHI HIGH COURT]. We accordingly cancel the penalty on this ground.
Even on merits, we are satisfied that it cannot be said that the assessee concealed its income or furnished inaccurate particulars thereof. In the present case, the evidence adduced before the CIT (Appeals) in appeal against the assessment order has not been examined by the Assessing Officer or the CIT (Appeals) while dealing with the penalty proceedings against the assessee for concealment of income. If this evidence is taken into account it would appeal that it cannot be asserted that the receipt of share application monies is totally unsupported.
We find that the assessee had filed the confirmation from all the share applicants, proof of share allotment to them, evidence for proving their identity, certificates from chartered accountants showing the distinctive numbers of the shares allotted to the applicants, etc. These ought to have been considered by the departmental authorities while dealing with the penalty proceedings for concealment of income. They have, however, omitted to do so, They have merely relied on the findings in the assessment proceedings without independently examining the evidence adduced by the assessee in the course of the assessment proceedings both before the Assessing Officer as well as the CIT (Appeals). Their orders thus suffer from basic infirmity, Explanation 1 to section 271(1)(c) is also not attracted since the assessee has adduced whatever evidence was in its possession which has not been found to be false unsubstantiated.
All that, can be said is that the income-tax authorities were not satisfied with such evidence. That does not amount to proof that the assessee concealed its income or furnished inaccurate particulars thereof. We accordingly accept the submissions made on behalf of the assessee and cancel the penalty imposed on it. The appeal is allowed with no order as to costs.
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2007 (8) TMI 739 - CESTAT, AHMEDABAD
Benefit of N/N. 64/95-CE dt.16/3/1995 - withdrawal of warehousing facility - Held that: - the benefit of notification cannot be denied in respect of warehoused goods, on withdrawal of warehousing facility, when the goods are otherwise exempted - appeal allowed - decided in favor of appellant.
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2007 (8) TMI 738 - DELHI HIGH COURT
... ... ... ... ..... 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. 21. Under these circumstances, 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. 22. In our view, no substantial question of law arises. Dismissed.
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2007 (8) TMI 737 - SC ORDER
... ... ... ... ..... r. (C.A. Nos. 4138-4141/2004), decided on 19th July, 2007 2009 (238) E.L.T. 386 (S.C.) , the Civil Appeals are dismissed with no order as to costs.
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2007 (8) TMI 736 - ITAT DELHI
... ... ... ... ..... e violations of the conditions prescribed by the NSB were there but those violations occurred in the regular course of business and cannot be considered as infraction of any statutory law. So, the expenses incurred by the assessee in regular course of business were allowable. 12. On going through the decision (supra) of the Tribunal and the facts of the instant case of the assessee, we find that the facts and issues involved in both the cases are identical and hence respectfully following the decision (supra) of the Tribunal, it is held that the issue involved in Ground No. 2 of the appeal of the assessee is to be decided in favour of the assessee and against the revenue by holding that the impugned payments made by the assessee are not for the infraction of law and hence are allowable,1 Accordingly, the order of the CIT(A) in this regard is set-aside and Ground No. 2 of the appeal of the assessee is allowed. 13. In the result, the appeal filed by the assessee stands allowed
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2007 (8) TMI 735 - DELHI HIGH COURT
... ... ... ... ..... Kerala 1999 116 STC 266 took the view that the maximum penalty should not be imposed mechanically but only for discernible reasons. The Gauhati High Court held "The quantum of penalty, subject to the maximum fixed by the statute, has been left to the discretion of the Authority concerned and the said discretion being a judicial discretion must be exercised on a consideration of all the relevant facts and circumstances of the case, including the degree of contumaciousness involved. The maximum penalty should be reserved only for exceptionally bad cases." 6. We are satisfied, having gone through the record, that there was no illegality committed by the Commissioner as well as by the Tribunal in imposing the penalty of only 10 per cent, as there were no special reasons warranting imposition of the maximum penalty. The authorities have exercised their discretion in accordance with law and have committed no error. 7. No substantial question of law arises. 8. Dismissed.
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2007 (8) TMI 734 - CESTAT AHMEDABAD
... ... ... ... ..... ed. 2. It is seen that M/s.Rishiroop Rubber (I) Ltd. had also challenged the above order before Tribunal. The Tribunal vide its order No.C-II/69, 70/WZB/04 dt.7/1/2004 allowed the said appellant s plea and set aside the impugned order. Inasmuch as the main appeal stands allowed, the Revenue s plea for imposition of penalty on the Managing Director cannot be accepted. The same is accordingly rejected. (Dictated & Pronounced in Court)
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2007 (8) TMI 733 - DELHI HIGH COURT
... ... ... ... ..... years 1991-92 and 1992-93?" 2. The admitted position is that in view of the following decisions CIT v. Jai Durga Construction Co. 2000 245 ITR 857 (All.), H.M.M. Ltd. v. CIT 2001 252 ITR 8421 (Punj. & Har.) and CIT v. Capital Electronics 2003 261 ITR 41 (Cal.), the question is required to be answered in the affirmative, in favour of the assessee and against the revenue. This reference is disposed of accordingly.
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2007 (8) TMI 732 - SUPREME COURT
Whether the finding that the appellants are estopped from claiming the Kist amounts in terms of the contracts between the parties is found to be wholly unsustainable?
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2007 (8) TMI 731 - ADVANCE RULING AUTHORITY
Whether, on the facts and in the circumstances of the case, the income derived by the applicant on the purchase in India and export of gold jewellery accrues or arises in India and is taxable in India ?
Whether, on the facts and in the circumstances of the case the income arising to the applicant on the purchase in India of gold for the purpose of manufacturing gold jewellery in India for export and export of the same accrues or arises in India and is taxable in India ?
Whether, on the facts and in the circumstances of the case, the income arising on the purchase and export of gold jewellery and the purchase of gold for the purpose of manufacturing gold jewellery for export and export of the same by the applicant who is a non-resident would constitute income accruing or arising through or from the operations which are confined to the purchase of goods in India for the purpose of export falling within clauses (a) and (b) of Explanation 1 to section 9(1)(i) and whether such income is taxable in India ?
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2007 (8) TMI 730 - JHARKHAND HIGH COURT
... ... ... ... ..... se the document on the ground that the same is exempted under Section 8(1)(d) of the Act. Hence, there is no violation of principles of natural justice. Be that as it may, this Court has entertained the intervention application and gave full opportunity of hearing to the Intervener on the question whether such document comes within the purview of Section 8(1)(d) of the Act. We are, therefore, of the opinion that the question of violation of principles of natural justice does not arise. 30. Having regard to the facts and circumstances of the case and in the light of the law discussed hereinabove, the order passed by the Chief Information Commissioner and the learned Single Judge warrant no interference by this Court. This Court holds that information sought for with regard to documents does not come under the purview of Section 8(1)(d) of the said Act. 31. For the reasons aforesaid, there is no merit in this appeal which is, accordingly, dismissed. D.K. Sinha, J. 32. I agree.
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2007 (8) TMI 729 - DELHI HIGH COURT
... ... ... ... ..... ained to amounts paid over and above the amount disclosed in the conveyance deed. 5. Having heard learned counsel for the parties and after perusing the materials on record, we are of the view that the CIT (A) and the Tribunal having taken a concurrent view that the documents did not disclose payment by the Assessee of amounts over and above that shown in the conveyance deed, it cannot be said that there was an unexplained investment which was liable to be taxed. The fact that the father of the Assessee, who admittedly was the author of the recovered loose sheets, was not at all examined by the Assessing Officer, can only lead to the conclusion that the best evidence available was not brought on record. 6. We are of the view that the opinion expressed by the CIT (A) as well as by the Tribunal were based on the documents available on record, and are unexceptionable. 7. No substantial question of law arises for consideration in this appeal. The appeal is dismissed accordingly.
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2007 (8) TMI 728 - BOMBAY HIGH COURT
... ... ... ... ..... e Court took the view that the view of the Tribunal could not be sustained. The Supreme Court also noted the reliance placed by the Tribunal on the earlier judgments as also the judgment of the Supreme Court in Astra Pharmaceuticals (P) Ltd. (supra). It would, therefore, be clear that none of the predicates as required for the application of the proviso, to apply the extended per of time to issue the show cause notice were satisfied. The learned Tribunal noted that the demands made for the period 25th May, 2000 to 9th August,2000 and the show cause notice was issued on 7th May, 2004 and the issue was only resolved in the year 2005 and, therefore, held that the extended period for issuing the show cause notice under the proviso was not applicable. 10. In our considered opinion it cannot be said that the view taken was erroneous and consequently we find no merit in this Appeal which is accordingly dismissed. In the circumstances of the case there shall be no order as to costs.
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2007 (8) TMI 727 - SUPREME COURT
Whether the acquittal recorded by the Trial Court was not in consonance with law and the High Court was right in setting aside it and in convicting the accused, it is a mere consequence which cannot be helped?
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