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Case Laws
Showing 441 to 460 of 1040 Records
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2011 (1) TMI 1111
AOP vs. Partnership firm - violation u/s 144 - Held that:- As it is seen that photocopy of partnership deed only was produced and in spite of opportunity given the assessee could not produce its original - Assessing Officer noticed that the assessee manipulated resolution providing for payment of interest and salary to partners in terms of Section 40(b) and there is no provision in the partnership deed providing for payment of interest and salary to partners - Assessing Officer has established that the assessee has committed violations falling under Section 144 which disentitle the assessee to be assigned status of a firm - Decided against the assessee
Unexplained expenditure - Held that:- Out of various additions, this one amount was sustained by the Tribunal for the reason that the assessee could not claim their stand that this amount is paid out of business funds i.e. from available source, which was used as a source for construction of the hospital buildin - Decided against the assessee
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2011 (1) TMI 1110
Block assessment - Search and seizure - Value of stock - Held that:- The evidence has to be taken along with other materials on record and the assessee's son Shri.Bosky had taken registration and is carrying on business in the shop and is returning income from the said business. Thus value of stock found at the business place at Kanhangad was rightly held by the Tribunal as not assessable as assessee's income - Decided in favor of the assessee.
Regarding disallowance u/s 54E - Held that:- The appellate authority on facts found that the building was constructed though in the name of assessee's wife, it belonings to him and so much so, the reinvestment of the sale proceeds in the house newly constructed entitle the assessee for the benefit under Section 54E - Decided in favor of the assessee.
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2011 (1) TMI 1109
Direction of the Income Tax Department to furnish details of depositors having more than Rs.1 lakh deposit with the bank - Held that:- Supreme Court has granted a stay in SLP No.3976/2010 against a judgment of this Court in W.A.No.1854/2009 in which a similar challenge was upheld - this writ petition may be disposed of without prejudice to the right of the Income Tax Department to take further action in accordance with the orders to be passed in the said SLP. Decided in favor of the assessee
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2011 (1) TMI 1108
Purchase and sale of stock - Business transaction or sale of capital asset - Held that:- As it is seen from the orders that for the two preceding assessment years 2001-2002 and 2002-2003 the department accepted the assessee's claim that the transaction is trading and the loss is a business loss, assessee has no opening stock or closing stock of any shares and so much so, they were treating it as purchase and sales without retaining the asset for any appreciable period. order of the Tribunal upheld to treat it as business transaction and dismiss the departmental appeal.
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2011 (1) TMI 1105
Reopening of assessment - Excess depreciation - Held that:- Adding the said amount to the amount computed under the ordinary provisions of the Income-tax Act, the aggregate amount even as per the Assessing Officer comes to Rs. 4,05,930 which is less than the amount of tax paid by the petitioner on being assessed under section 115JB of the Act thus when the tax payable as per the reasons recorded is less than the tax paid by the petitioner under the assessment framed under section 143(3) of the Act, the question of any income having escaped assessment does not arise - The order recording reasons itself indicates that in fact no income has escaped assessment and as such there is no basis for the formation of belief that income has escaped assessment - Decided in favor of the assessee
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2011 (1) TMI 1104
Assessee in default - non payment of TDS - Contract vs. Rent - assessee had produced various bills issued by such sub-contractors to show that the contracts were mainly carried out for shifting of goods from one place to another - Held that:- As from the findings of fact recorded by the Commissioner (Appeals) it is apparent that the assessee has not taken the dumpers on hire/rent from the parties in question. The assessee has given contracts to the said parties for the transportation of goods and has not taken machineries and equipment on rent. In the circumstances, the Commissioner (Appeals) was justified in holding that the transactions in question being in the nature of contracts for shifting of goods from one place to another would be covered as works contracts, thereby attracting the provisions of section 194C. That since the assessee had given sub-contracts for transportation of goods and not for the renting out of machineries or equipment, such payments could not be termed as rent paid for the use of machinery and the provisions of section 194-I of the Act would not be applicable. The Tribunal was, therefore, justified in upholding the order passed by the Commissioner (Appeals). No substantial question of law arises.
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2011 (1) TMI 1103
Exemption u/s 10B - Circular No. 684, dated June 10, 1994 - Held that:- Section 10B was introduced in the year 1989 and the heading of the section made it clear-special provision is in respect of newly established 100 per cent. export-oriented undertaking. Even if those establishments were not exporting the substantial portion of what it manufactures, by mere obtaining a certificate under the Act, they were enjoying the benefit by selling their products in the local markets. After seeing how this provision has been abused by such EOUs, the proposed amendment was brought in with effect from April 1, 1994. By the proposed amendment, merely because a unit has obtained a certificate from the concerned authorities, that is not sufficient to avail of the benefit of exemption. After obtaining such a certificate, they must demonstrate that 75 per cent. of their manufactured items have been exported. From this undisputed fact, it is clear that the units, which are established prior to April 1, 1994, have the advantage of claiming this exemption even by exporting a fraction of their production. The mischief is sought to be avoided by this amendment by prescribing 75 per cent. as the level of exports, which has to be satisfied by the assessee - thus by a wrong interpretation, the AO has disallowed the exemption - Appeals are dismissed.
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2011 (1) TMI 1098
Unjust enrichment - refund - appellant had filed bills of entries on 31-1-2006, which were provisionally assessed on the value of USD 415 PMT of the imported goods. On the very same day, vide Notification No. 7/2005-Cus., (N.T.) dated. 31-1-2006, the tariff value was reduced from USD 415 to USD 412 PMT. The bills of entries were finally assessed on the very same day i.e. 31-1-2006 giving the benefit of the notification to the appellant. Appellant filed refund claims on 30-6-2006 as per the provisions i.e. provisions of Section 27 read with Section 27 read with Section 18 of the Customs Act, 1962 - Held that:- Claim for refund made by the appellant had to be decided according to the law laid down in case of TVS Suzuki Ltd. [2003 (8) TMI 42 - SUPREME COURT OF INDIA] as relying on Mafatlal Industries Ltd. (1996 (12) TMI 50 - SUPREME COURT OF INDIA) , provisions of sub-rule (5) of Rule 9B of the Central Excise Rules were parimateria to the provisions of Section 18 of the Customs Act, 1962 as regards the provisional assessment and finalization thereof. order is not correct and set aside, order is set aside and the appeal allowed with consequential relief, if any.
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2011 (1) TMI 1088
Confiscation - Anti dumping duty - Classification - appellant made a request for re-export of the said goods to the original exporters inasmuch as it was financial not viable for them to pay Anti Dumping Duty. - Held that:- Admittedly, the goods were declared as ‘tapes’ and the same were found to be ‘tapes’. Further, classifying the said goods under a different Customs tariff heading than the one adopted by the Revenue for the purpose of Anti Dumping Duty, cannot said to be with a mala fide intention, in the absence of any evidence to that effect. In any case, adoption of correct classification is in the hands of Customs authorities who can always change the same from the declared classification to the correct classification. To classify the product under a particular heading, according to the understanding of the importer, by itself cannot be held a ground so as to confiscate the imported goods. As such, we find no infirmity in the view adopted by the Commissioner. Accordingly, the appeal filed by the Revenue is rejected.
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2011 (1) TMI 1082
Term of service - Petitioner after completion of his five-year term was reappointed for another term of five years and was due to complete his second term of five years - response to an advertisement issued by the respondent regarding vacancies made application for the post of Judicial Member of the Tribunal, the post which he had held for nine and a half years at the time of making application refused for appointment for the vacancy, for the reason that the petitioner would complete his second term of 5 years as a Judicial Member of the Tribunal vide the impugned communication - main premise of the petitioner’s challenge of the said communication is that after completion of a tenure of 10 years, he is eligible to apply for the post afresh and must be considered on merits for his appointment as a Member of the Tribunal and should not be disqualified for appointment merely because he has completed 10 years in that office - Held that:- Plea that Section 10A, which restricts the total term of the Member of the Administrative Tribunal to ten years should be regarded as unconstitutional has also no substance at all. The age of retirement of a Government servant has been raised from 58 years to 60 years. Initially under the unamended provisions of the Act a retired Government servant had a tenure of only two years as a Member of the Tribunal and it was noticed that he was not able to contribute much while performing duties as a Member of the Tribunal. It was felt necessary that every Member of the Tribunal should have a tenure of five years. Therefore, the provisions relating to term of office incorporated in Section 8 of the Act were amended in the year 1987 and provision was made fixing term of office of Chairman, Vice-chairman and Members at five years period – statement made by learned senior counsel that we need to place our interpretation on the provisions of the Amended Act, which further principles of Judicial independence. Passage from the book, referred to by the learned senior counsel, pertains to the legal system in American Courts and Hybrid Tribunals, which has nothing to do with our legal system. Secondly, the statement relied on by the learned senior counsel is an extract from the book of a jurist, which has neither any persuasive value nor legal binding on us. If the suggestion made by an American author suits our legal system, it is for the Legislature to take note of it, “the doctrine of ‘independence of judiciary’ has nothing to do when the tenure is fixed by a statute”, no merit in this writ petition filed under Article 32 of the Constitution of India, Petition dismissed
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2011 (1) TMI 1081
Penalty under Section 112 of Customs Act - contention of appellant is that in the earlier adjudication order a penalty of Rs. 50,000/- was imposed which was increased to Rs. 1.00 lakh in the remand proceeding - Held that:- As there is no omission or commission on the part of the present appellant which makes him liable for penalty under Section 112 of Customs Act. The impugned order in respect of the present appellant is set aside and appeal in this regard is allowed.
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2011 (1) TMI 1079
Interest liability for delay in payment of duty - connectivity problem in the OLTAS system in RBI/NSDL package system and hence, they could not transmit the e-payment on 31-3-2008 - Held that:- As delay of two days in remitting the duty in the Government account, this delay is not due to any violation or error on the part of the assessee, but is due to systems failure. The certificate issued by the bank is not disputed by the Revenue authorities, order is set aside and the appeal is allowed.
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2011 (1) TMI 1078
Writ - learned senior counsel restricted his relief for supply of documents which are going to be pressed into service or relied upon by the Adjudicating Officer during adjudication - Held that:- When we say relied upon or pressed into service, it would convey that any document which has been directly or indirectly pressed into service by the Adjudicator - Be it clarified and elaborated if in course of adjudication a document as indicated hereinbefore is pressed into service and relied upon directly or indirectly, it would be open to the petitioner to file an application for getting a copy of the same. In case an application is filed, as acceded to by Mr. Mukesh Anand, the Adjudicator shall dwell upon the same - writ petition stands disposed of
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2011 (1) TMI 1077
Cenvat credit on capital goods - Rule 3(5) of CENVAT Credit Rules, 2004 - whether the payment of duty on the basis of transaction value is not correct and the assessee was justified in availing CENVAT credit - Held that:- As the determination of the said question is excluded under Section 35(G) of the Act, the revenue has to prefer an appeal to the Apex Court under section 35(L) - Appeal is rejected
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2011 (1) TMI 1076
Refund - show cause notice was issued under Section 11-B of the Central Excise Act, 1944 - undue enrichment - Held that:- As decided in cases of Asea Brown Boveri Ltd. v. CCE, Bangalore [1998 (5) TMI 157 - CEGAT, MADRAS] & CCE, Indore Versus MEDI CAPS LTD. [2001 (12) TMI 103 - CEGAT, NEW DELHI] that the doctrine of unjust enrichment is not applicable to the refund claims under Rule 173-L and the ratio of the said decisions is squarely applicable to the instant case -
In view of the findings recorded and TRIVENI CHEMICALS LTD. Versus UNION OF INDIA [2006 (12) TMI 39 - SUPREME COURT OF INDIA] it has to be held that the matter which stand concluded, finally between the parties cannot be reopened by invoking Section 11B of the Central Excise Act, 1944. Decided in favor of the assessee
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2011 (1) TMI 1075
CENVAT Credit denied - Show Cause Notice was issued to the Appellants on the ground that for the month of November, 2006 Appellants filed monthly return on 5-12-2006 showing payment of duty Held that:- As Appellants had not paid duty on due dates therefore the Appellants were debarred from utilizing CENVAT credit for subsequent clearances - Appeal is dismissed
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2011 (1) TMI 1073
Whether the goods cleared by the appellant a 100% EOU to DTA were excisable or not? - fresh mushrooms - Tribunal directing the appellant to pre- deposit the amount of Rs. 1.25 crores - Held that:- Prior to 28-2-2005 as also subsequent to 28-2-2005 fresh mushrooms were excisable but were subjected to ‘Nil’ rate of duty - the demands raised herein pertains to the period from December, 2006 to June, 2008 when the orders passed in the appellant’s own case were in operation. As per those orders, the appellant was not liable to duty on clearances to DTA. In these circumstances, this is a fit case for grant of full waiver of pre-deposit.
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2011 (1) TMI 1072
Benefit under International Price Reimbursement Scheme (TPR Scheme’)denied - Proprietary concern and a merchant-exporter exported various automotive components, by virtue of the said export - contention of the Petitioners that since the EEPC had already found the claims to be in order, it had to necessarily issue orders releasing the payment - Held that:- Refusal by the EEPC to clear the Petitioners’ claims for payment in terms of the IPR Scheme cannot be said to be either arbitrary or unreasonable. Unless the complete documentation in terms of the IPR Scheme was made available to the EEPC by the Petitioners, they could not expect the EEPC to clear their claims, no merit in either of the petitions and they are dismissed as such with no order as to costs
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2011 (1) TMI 1070
Writ application - Tribunal considering the fact that only a petty amount of Rs. 10,000/- is involved in this case, the appeal as well as the stay petition are dismissed at the admission stage without going into the merit of the case - Held that:- There is no provision for dismissal of an appeal only on the ground of the penalty amount being a paltry amount. The learned Tribunal was obliged to consider the merits of the appeal. There being an apparent error on the face of the impugned order, this Court does not deem it necessary to call for affidavits. The order impugned is set aside. The learned Tribunal is directed to consider the appeal afresh in accordance with law, preferably within four months from the date of communication of this order.
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2011 (1) TMI 1068
Waiver of pre-deposit of Service Tax - refund claim rejected on the ground appellant had not filed all the required documents along with - Held that:- It is undisputed that the documents were filed along with deficiency memo. It is also undisputed that the refund claim is otherwise maintainable. In view of this, in my considered view, the appellant has made out a prima facie case for waiver of pre-deposit of the amount involved.
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