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Showing 421 to 440 of 1040 Records
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2011 (1) TMI 1143
Winding up - applicant is a certificate debtor along with the company in liquidation in proceedings before the Debts Recovery Tribunal - applicant as well as the company in liquidation are debtors before the Debts Recovery Tribunal. Before it the applicant is liable as a guarantor. The same applicant is a respondent-director in the misfeasance proceedings started in connection with the liquidation proceedings – Held that:- Tribunal with the power to decide an application before it like a suit. It has power to decide set off and counter claims. Then in section 19(13A), the Tribunal has the power to pass an order asking for security, attachment of property and the like. If the Tribunal has the power to order attachment of property, the power to decide the title to that property is incidental to it, Recovery Officer does not have any such power, Recovery is underway. Misfeasance proceedings have not reached that stage before this court, recovery proceedings against applicant/respondent No. 2 will remain suspended till determination of this question by the Tribunal. This order is conditional upon the applicant
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2011 (1) TMI 1142
Extension of charge sheet - offence punishable under Section 20(b)(ii)(c), 21(b) and 22(c) of N. D. P. S. Act, 1985 - applicant filed an application for bail before the Special Judge on the ground that no chargesheet was filed till that date and also on the ground that the extension of time was granted on a false representation made by the respondent that the report of analysis of the substance sent to Directorate of Foods and Drugs Administration, Panaji ('DFDA' for short) was not received prior to filing of the application seeking extension of time – Held that:- order granting extension was patently illegal, the learned Special Judge shall pass the order granting bail releasing the applicant on bail on such terms and conditions as he deems fit and proper
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2011 (1) TMI 1139
Petition under Section 482 Cr.P.C - quashing of complaint case under Sections 132 and 135 of the Customs Act, 1962 in which he was arrayed as an accused on the ground that the petitioner had preferred an appeal before the Customs Appellate Authority in respect of adjudicating proceedings against penalty and in the appeal he was exonerated and the case qua him was found to be false - statement of Shri Varyam Singh alleging the involvement of the Appellant and is not corroborated by the statement of any other person or by any documentary evidence – Held that:- Since the prosecution was initiated against the petitioner on the basis of available evidence, non-joining of the petitioner in investigation cannot be a ground to distinguish the case of the petitioner from that of Vinod Kumar Jain (supra). The entire evidence sought to be relied upon by the respondent department against the petitioner is the same that was before the Appellate Authority and since the Appellate Authority had considered the entire evidence and come to above conclusion, no useful purpose would be served by continuing with the prosecution against the petitioner before the trial court, petition is allowed and complaint case quashed
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2011 (1) TMI 1138
Shortage of Modvat inputs and capital goods in the factory premises - officers of the assessee admitted the shortage in their statement recorded during the course of search, the assessee produced several documents during the course of assessment proceedings to show that there was no shortage - adjudicating authority declined to look into these documents on the ground that they were produced as an afterthought and confirmed the demand – Held that:- matter is restored to the file of the adjudicating authority, appeal is accordingly disposed off
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2011 (1) TMI 1137
Refund – unjust enrichment – Held that:- Tribunal has also observed that factual data in support of the submissions raised for refund has not been produced. The Tribunal has also observed that the record could not disclose that as to what was the portion of price related to the gallery along with the duty liability and the detail break-up of the price charged for the goods prior to and after removal of gallery, appellant has failed to establish that they had not passed on duty burden upon the consumers, hence, refund would have amounted to unjust enrichment, no illegality in the order passed by the Tribunal, Appeal being devoid of merit stands dismissed
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2011 (1) TMI 1133
Penalty of short payment of duty - capacity of production based duty - provisional assessment - hed that:- The fact that the differential duty held payable by the provisional determination came down drastically shows that there is no mala fide on the part of the assessee to evade payment of duty. In my considered opinion, short-levy which came to be known consequent to re-determination after 5 to 6 years cannot invite penal provision prescribed under Rule 96ZO. The assessee could not have anticipated short levy arising out of re-determination after 5 to 6 years. There is no valid reason adduced for the inordinate delay in re-determination of duty liability in terms of sub-section (sic) of Section 3A. Under these circumstances, it is a fit case for not sustaining penalties, penalties are set aside and the appeals are allowed
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2011 (1) TMI 1131
Power of Commissioner (Appeals) to remand - As per the amended provision to Section 35A of the Central Excise Act, the power of remand has been withdrawn w.e.f. 11-5-2001 - Commissioner (Appeals) has no power to remand. - since the adjudication order is passed on violation of principle of natural justice matter remanded back to adjudicating authority.
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2011 (1) TMI 1130
Refund - claim rejected on the ground that appellant has failed to establish that they has not passed on duty burden upon the consumers - factual data in support of the submissions raised for refund has not been produced - record could not disclose that as to what was the portion of price related to the gallery along with the duty liability and the detail break up of the price charged for the goods prior to and after removal of gallery - burden in that regard was upon the appellants which the appellants have failed to discharge, appellant has failed to establish that they has not passed on duty burden upon the consumers, hence refund would have amounted to unjust enrichment, Appeal being devoid of merit stands dismissed
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2011 (1) TMI 1127
Party to the proceedings - Bank of India is sought to be joined as the party to the proceedings only on the ground that the bond that was executed by the appellants was on Bank of India - Bank of India to whom the notice was issued alongwith the show cause notice to the appellants did not opt to participate under said proceedings before the Adjudicating Authority - Bank of India has not challenged the impugned order, appellants having not disclosed any cause against the Bank of India to join it as the party to this proceedings, the application is rejected
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2011 (1) TMI 1126
Benefit of exemption denied on various grounds which were not reflected in the Show Cause Notice - SCN discloses that it relate to only one ground namely that the party is not entitled to claim the benefit of Notification No. 6/2006 under Sr. No. 91 thereof retrospectively as the party had already cleared the goods while claiming exemption under Notification No. 108/95 - Merely because it discloses incorrect provision of law while claiming such benefit that could not result in the denial of such benefit to the assessee, application is allowed, amount claimed under the impugned order is waived till disposal of the appeal
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2011 (1) TMI 1123
Assessment - whether Income-tax Officer had the jurisdiction when the assessment proceedings commenced and a draft assessment order was submitted to the Inspecting Assistant Commissioner - Subsequent change in the jurisdiction if any unless brought to the notice of the authority concerned, will not in any manner vitiate the assessment order in the absence of any objection with regard to lack of jurisdiction by the assessee - It is a case where both the Assessing Officer and the assessee proceeded as if there is no transfer order transferring jurisdiction, assessment order made by the Assessing Officer is valid in the eyes of law and this could not have been set aside by the Tribunal notwithstanding the transfer order, appeals are allowed in favor of revenue. The matter is restored back to the Tribunal
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2011 (1) TMI 1121
Business connection - Royalty - location of assets and software in India (through the affiliates of the assessee) and rendering of services in India - Deemed to accrue or arise in India - Section 9(1) - held that:- In satellite transmission, a particular frequency is assigned to the customer and in cable transmission, the customer gets a dedicated bandwidth. This is different from the use of a standard facility like the telephone at our homes. A broadband can be divided into two major categories (i) shared; and (ii) dedicated. Shared internet connections include the popular DSL and Cable broadband connections. Dedicated connections are provided by T1, DS3, and Ethernet business services. The term "business" is to be noticed. Shared Internet services originated to make broadband affordable for residential and home office users. Medium to larger size business have always used dedicated connections for their voice and data circuits. In the bigger picture, the entire internet is a shared bandwidth resource. With a dedicated connection, one’s bandwidth is set aside by the service provider and always available for one’s use. Order of CIT(A) confirmed wherein it was held that, "to avoid tax liability, apparently, MCI has split the lease charges for the IPLC circuit into two non-existent half circuits. Thus, MCI is trying not to acknowledge its liability on the quantum of lease charges arising in India and received by it by resorting to subterfuges. It is a fact that MCI has provided the single, composite and indivisible circuit which constitutes ‘equipment’. It has merely taken VSNL as a "Provisioning Entity" for providing the local part of services in India. In the alternative, the payments made for IPLC service may also be held to be for the use of process and, hence, would amount to payment of Royalty. The order of the Assessing Officer that payments received by the appellant was royalty for use of equipment and related services is therefore, confirmed"
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2011 (1) TMI 1119
Writ of certiorari - Writ petition - counsel for the respondent has pointed out that in similar writ petitions, this Court vide order [2011 (1) TMI 1118 - UTTARAKHAND HIGH COURT] has dismissed as many as eight writ petitions by a common order and the present writ is based on similar facts - Held that:- As petitioner has filed second writ petitions for set of facts therefore Court is of the firm view that second writ petition is not maintainable when the core issues are same in the present writ petition as well as in the earlier writ petition preferred by the petitioner. Accordingly, writ petition is dismissed in limine
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2011 (1) TMI 1118
Writ petition - Court passed an interim order that no final order shall be passed in the assessment, but AO passed a draft order under Section 144C(1) of the Income Tax Act - Held that:- Petitions are not maintainable when the core issues are same in the present writ petitions as well as in the earlier writ petitions preferred by the petitioners. Accordingly, the present writ petitions on the same facts are not maintainable and are liable to be dismissed outright.
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2011 (1) TMI 1117
Recovery - Demand for payment of Service Tax with penalty, under Ext.P1 order - appeal as well as the application for dispensation filed in both these cases are pending consideration and disposal before the 1st respondent - Grievance of the petitioner is that in the meanwhile coercive steps of recovery is being threatened for realising amounts covered under Ext.P1. Therefore the petitioner seeks interference of this Court to restrain the recovery steps till the disposal of the appeals - Held that:- Writ petitions are disposed of directing the 1st respondent to consider and pass orders on Ext.P3 applications in both these cases, after affording an opportunity of hearing to the petitioner, as early as possible, recovery of amounts covered under Ext.P1 order in both these cases shall be kept in abeyance.
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2011 (1) TMI 1116
Revision u/s 263 - disallowance towards motor car expenses, telephone expenses - Held that:- The assessee-firm vide letter dated October 7, 2008 submitted complete details of sales of plot, closing stock of units of the construction project known as "Sangeeta" along with various supporting evidence. Similarly, quantitative details of direct and indirect expenses were even given vide letter dated October 2, 2008. A note explaining the provisions for construction expenses along with the details of the provisions were furnished.
As it is not the case of the Commissioner while passing the order under section 263, that the Assessing Officer should have written the order more elaborately. The above extracts from the assessment record demonstrate that the Assessing Officer had called for details and after examining the same, had accepted the claims of the assessee. When such an exercise has been done, the conclusion drawn by the Assessing Officer, cannot be said to be erroneous. In favour of assessee.
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2011 (1) TMI 1115
Search and seizure - Block assessment - Held that:- The sale of the capital assets like land, building and depreciable assets are assessable separately. However, this could be done by bifurcating the sale consideration in a realistic manner between the value attributable to land, builiding and fixed assets and the value fixed for the transfer of the business, which is essentially the transfer of dealership licence by the manufacturing Company. It is stated that Rs.5 lakhs was retained by the purchasers towards consideration for the transfer of licence from the assessee. However, it is not known whether this is spent by the assessee to get the licence or whether it is an estimated amount fixed between the parties. In any case, the eligibility for a petroleum dealership licence itself is availability of all the infrastructural facilities and equipments and experience. Therefore, it is for the Assessing Officer to examine, after giving opportunity to the assessee as to whether what exactly is the consideration i.e. attributable for transfer of the business rights as an intangibel asset including licence.
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2011 (1) TMI 1114
Deduction u/s 80HHE - deduction of the profit earned from the export of computer software - Held that:- Supreme Court in K.RAVINDRANATHAN NAIR'S CASE [2007 (11) TMI 10 - Supreme Court of India] applies to consultancy charges received in India which is unrelated to the business of export of computer software and so much so, 90% of the income by way of consultancy charges received in India should be excluded under Explanation (d) to Section 80HHE in the computation of eligible deduction under the Act - Decided against the assessee
Validity of Reopnening - Held that:- While working out the eligible deduction did not exclude 90% of the income received by way of consultancy charges which is to be specifically excluded by virtue of mandatory provision contained in Explanation (d) of Section 80HHE. In fact, since there is an omission to apply the statutory provision in the working out of eligible deduction of profit on export of software, the assessment could even be rectified through rectification proceedings under Section 154. In any case when the mandatory provision is not followed leading to evasion of tax by way of excess relief granted to the assessee, the remedy open to the officer is to revise the assessment by invoking powers under Section 147 - Decided against assessee
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2011 (1) TMI 1113
Carry forward of business loss u/s 10B(6) - 100% EOU - In the absence of prior intimation in terms of Section 10B(8) the assessing officer declined the benefit of carry forward of loss claimed by the assessee - Held that:- As respondent had forfeited the claim under Section 10B because they were debonded by the Development Commissioner initially on provisional basis and thereafter through final order passed on 21.10.1999 - assessee in fact was well aware of the withdrawal of the benefit by the Development Commissioner, and so much so in the income tax return filed for 1999-2000 they had not claimed the benefit of deduction under Section 10B - Appeal is dismissed
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2011 (1) TMI 1112
Search and seizure - Block assessment - Assessing Officer assessed only the interest from these deposits as assessee's income and the deposit amounts in the names of the relatives were not assessed as undisclosed income of the assessee for the year 1992-93 which fell within the block period - Held that:- As decided in High Court in VISHWANATH PRASAD ASHOK KUMAR SARBAF Versus CIT AND OTHERS [2010 (4) TMI 445 - ALLAHABAD HIGH COURT] that income assessed in a block assessment under Section 158BC cannot be again brought to tax under Section 147 after the appellate authority cancels or modifies the block assessment - Assessing Officer has no jurisdiction to assess the very same amount, which was considered and given up while making block assessment.
The income assessed under Section 147 i.e. the amount covered by deposit receipts maintained in Banks, were considered in the block assessment and at that time, the AO treated only interest income as income of the assessee and not the deposit amounts as such, as undisclosed income of the assessee. However, when the CIT (Appeals) cancelled the block assessment holding that Bank deposits were that of family members of the assessee and therefore interest income therefrom could not be assessed in his hands, the AO tried to bring to tax the deposit amounts itself by invoking the powers under Section 147. Even though block assessment under Section 158BC and income escaping assessment under Section 147 can probably be made for the same period, on different basis assessments could not be successively made one after another for the same period under these provisions based on the same materials - Decided in favor of the assessee
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9911796707
