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Showing 81 to 100 of 1429 Records
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2014 (12) TMI 1356
Disallowance of provision for gratuity u/s 43B - ascertained liability as allowable as deduction under section 40A(7)(b) - HELD THAT:- On a perusal of the decisions relied on by the assessee, we find that this issue has been considered by various High Courts and held that the provision made by the assessee towards contribution to approved gratuity fund is an ascertained liability and is allowable as deduction under section 40A(7)(b)of the Act. It was further held that the provisions of section 40A(7)(b) overrides section 43B of the Act - See MEWAR SUGAR MILLS LTD. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX [1998 (2) TMI 169 - ITAT JAIPUR], BECHTEL INDIA (P) LTD [2007 (11) TMI 2 - HIGH COURT , DELHI] and COMMON WEALTH TRUST (P.) LTD., COMMISSIONER OF INCOME-TAX VERSUS COMMON WEALTH TRUST (I.) LTD. [2004 (4) TMI 51 - KERALA HIGH COURT]
Thus we uphold the order of the Commissioner of Income Tax (Appeals) in deleting the disallowance made for approved gratuity funds. -Decided in favour of assessee.
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2014 (12) TMI 1355
Effect of granting post facto approval - Permission accorded u/s 29(1)(b) of the Foreign Exchange Regulation Act, 1973 for the purchase of shares u/s 19(1)(a) FERA for the export of the shares issued to the country of the residence of the non-resident investors as well as under Section 29(1)(a) FERA for non-resident participation in CCL exceeding 40% - HELD THAT:- As 'explained by the Supreme Court in Life Insurance Corporation of India v. Escorts Ltd. [1985 (12) TMI 289 - SUPREME COURT] , the discretion is with the RBI whether to grant permission or not; whether it is an ex post facto or any other permission. The wisdom of the RBI in granting post facto approval is not to be interfered with.
The effect of granting post facto approval is as if the infraction did not occur in the first place and it stands regularized with respect to the date of such infraction. If the orders passed by the RBI dated 9th February 1989 and 11th April 1989 are carefully examined, the post facto approvals virtually cover every aspect of the twelve show cause notices that were issued subsequently to CCL and its directors. In fact the whole idea of a post facto approval was that the failure to obtain prior permission as emphasised in various provisions of the FERA was condoned and therefore regularized. Therefore, this Court fails to understand how despite noticing the above aspect of the aforementioned two letters of the RBI, the SD proceeded to impose penalties as far as SCNs VI-VII are concerned. Only because prior permission was not obtained, this Court has no hesitation in holding that the findings under SCNs VI-VII and the consequent penalties imposed are misconceived and cannot be sustained in law.
Turning to SCN No. VIII, the bone of contention appears to be that there is no specific permission for payment of commission to the individual directors whereas the post facto permission was granted for the payment of the salaries. Admittedly, the word 'salaries' is not defined in the FERA. There is no rational explanation as to why the definition of salary under the Income Tax Act, 1961 could not be adopted for the purposes of determining whether the payment of such commission was also regularized by the RBI. In these circumstances, this Court is unable to agree with the conclusion reached by the SD as regards SCN No. VIII and the penalty imposed thereunder also cannot be sustained.
As far as SCN No. IX is concerned, the view of the SD was that the act of CCL in granting loans was not with specific approval. This finding overlooks the actual wording of the letter dated 11th April 1989 of the RBI. It begins by noticing "your granting of loan to NRI shareholders for investing in companies to shares and issue of bonus/rights shares". Once the allotment of shares had been approved and specific permission had also been given under Section 29(1)(b) FERA to the NRI shareholders for purchasing the shares clearly the entire act of granting loans was itself regularized. Therefore, this Court is unable to sustain the finding of the SD as regards SCN No. IX and the consequent penalties imposed.
The crux of the SCN No. IX concerns para (d) of the letter dated 11th April 1989. The condition for grant of the approval was that the dividends accruals had to be deposited to the investor's ordinary non-resident account and since that was not shown to have been the case, there was violation of Section 9(1)(a) FERA. A careful perusal of SCN No. IX would show that no such allegation has been made and that the notice having not been put on notice on whether or not they have deposited dividends in the ordinary non-residents account, it was not justified to find violation on that basis. As pointed out by Mr. Narang, learned counsel for the Appellant that the Appellants on having been put to notice on such violation could have produced material to explain that they had in fact complied with such condition. In that view of the matter the finding on SCN No. X cannot be sustained and the penalties imposed therein are also hereby set aside.
The issue as far as SCN Nos. XI to XVII is concerned is about the value of the shares allotted to the directors. The SD proceeded' on the basis that the letter dated 11th April 1989 approved the allotment of 5,50,000 shares of ₹ 10 each, and any value in excess of that would be unauthorized. The above approach is based on the fact that the approval by the RBI granted vide letter dated 11th April 1989 was not only for allotment of shares but also for allotment of consequential bonus/right shares. Once the original allotment of shares is regularized then it goes without saying that any consequential allotment of bonus shares would also stand regularized. In respect of each of the directors explanation is available on record as to how they have been allotted bonus shares. This Court is, therefore, unable to accept the reasoning given in the AO order as regards SCN Nos. XI to XVII and the consequent finding regarding violation of Section 29(1)(b) and 19(1)(d) FERA. As a result the AO order dated 15th October 1990 is hereby set aside. The consequent order dated 30th May 2008 of the Appellate Tribunal is also hereby set aside. The appeals are at-lowed in above terms.
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2014 (12) TMI 1354
Deduction u/s 80I - Does the Income derived from an industrial undertaking include income from service/maintenance contracts in respect of the goods manufactured and supplied by the industrial undertaking so as to be eligible for deduction ? - HELD THAT:- The Apex Court in the case of Excel Industries Ltd. [2013 (10) TMI 324 - SUPREME COURT] held that in several assessment Years, the Department accepted the order of the Tribunal in favour of the assessee and did not pursue the matter any further but in respect of some assessment years the matter was taken up in appeal before the High Court. The Department could not be allowed to flip flop on the issue and it ought let the matter rest rather than pursue litigation.
The Bombay High Court in the case of International Data Management Ltd. [2003 (2) TMI 50 - BOMBAY HIGH COURT] held that the assessee derived income as it rendered services and maintenance facility to its clients for which it charged for maintenance and services. Therefore, there was a direct nexus between the receipts from rendering services and maintenance facility to its clients and lease rent and the main business activity of the assessee. There was also recorded as a finding of fact by the Tribunal. The assessee was entitled to deduction under Section 80I in respect of that income.
Considering above we are of the considered opinion that the Tribunal ought to have granted the benefit to the assessee under Section 80I of the Income Tax Act for the assessment Year 1992-92 also. - Decided in favour of assessee.
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2014 (12) TMI 1353
Addition on account of suppressed sales - GP on the suppressed sales - HELD THAT:- The assessee had maintained regular books of account and the AO had not come across any unaccounted purchase or suppressed sales. Only on the basis of power consumption, no addition could be made or sustained. It is a known fact that several factors affect the consumption of electricity-like loss of heat, poor quality of raw material inputs, poor workmanship/supervisory skills, presence of moisture, contents and fluctuation in the electricity supply. Most of the above factors are beyond management’s control and explanation cannot be pinpointed to any single reason. It is also a fact that the assessee was not manufacturing one item. Therefore, arithmetical formula should not have been applied for arriving at a conclusion. In our opinion, the FAA was fully justified in holding that the assessee had explained the variation in power consumption citing cogent reasons. The cases referred by the AR also support the views taken by us - FAA does not suffer from any legal infirmity. Upholding his order, we decide first ground of appeal against the AO.
Disallowance u/s. 40A(2)(b) - HELD THAT:- Selective study of the transactions in the year concerned is not appropriate for arriving at a definite conclusion. He should have considered the average price for the whole year before making the disallowance. FAA has given a categorical finding of fact that in certain months, the average prices of goods/material purchased from the sister concern of the assessee was less or equal to the market rate. We have also taken note of the fact that the assessee has purchased the goods on credit from its sister concern.
AO has not brought on record comparable cases to justify the disallowance. In our opinion, the provisions of section 40A(2)(b) can be invoked in special circumstances where considering the market rate of goods/services, the AO arrives at a conclusion that the price charged by the assessee was at variance to the market rate. In the case before us, the AO has not brought on record any facts which prove that he had undertaken such an exercise. In the present case no evidence whatsoever was brought on record by the AO to prove that the justification assigned for making payment to the sister concern was false and the same was not proved to have been made for extra commercial considerations. For all the reasons mentioned above, the impugned disallowance, made on mere hypothetical estimations, cannot be endorsed
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2014 (12) TMI 1352
Addition on account of lower rice yield shown by the assessee - HELD THAT:- While making the addition AO had applied a mathematical formula claimed to have been adopted from FCI guidelines. It is very strange that before fastening tax liability to the assessee he did not consider it necessary to incorporate the reply of the assessee and rebut it. Principles of natural justice demand that the assessee is entitled to get a reasoned and speaking order.
A reasoned order cannot be passed without considering the reply of the assessee filed by the assessee and without giving reasons as to why the reply was not acceptable. Once the assessee had made submission about the FCI Web site it was duty of the AO to give a clear finding about it, but he chose to remain silent about it. He had the case records of the assessee of earlier assessment years and he could have easily found as what was the yield for those years.
Without referring to the statistics available with him, the AO made the addition. He has not referred to any comparable case that could prove that the stand taken by him about the yield of broken-rice and rice was based on any scientific or logical basis. In short, there was no justification of any kind to hold that the yield shown by the assessee about broken rice and rice was lower as compared to other comparable cases or yield shown in earlier years. - Decided against revenue
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2014 (12) TMI 1351
Government securities allowable deduction - when it as kept under the classification ‘available for sale’ was not in the nature of stock-in-trade by ignoring the subsequent RBI guidelines - allowing the claim of the assessee without taking into consideration the instructions of the RBI dated 2.9.2003 and the CBDT Circular 665 dated 05.10.1993 which did not contemplate such an allowance? - HELD THAT:- This Court had an occasion to consider similar questions in the case of Karnataka Bank Ltd. –vs- Assistant Commissioner of Income Tax [2013 (7) TMI 656 - KARNATAKA HIGH COURT] assessee has maintained the accounts in terms of the RBI Regulations and he has shown it as investment. But consistently for more than two decades it has been shown has stock-in-trade and depreciation is claimed and allowed.
Therefore, notwithstanding that in the balance sheet, it is shown as investment, for the purpose of Income tax Act, it is shown as stock-in-trade. Therefore, the value of the stocks being closely connected with the stock market, at the end of the financial year, while valuing the assets, necessarily the Bank has to take into consideration the market value of the shares. If the market value is less than the cost price, in law, they are entitled to deductions and it cannot be denied by the authorities under the pretext that it is shown as investment in the balance sheet - Decided in favour of the assessee and against the revenue
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2014 (12) TMI 1350
Profit offered on sale of assets being STT paid on listed shares - “income from business” OR “income from short term capital gains” u/s 111 (1) (I) on which tax is leviable at flat rate of 10% - HELD THAT:- In the present appeal, we note that the assessee made investment in shares with intention to earn dividend income on appreciation of price shares. Therefore, it cannot be said that the assessee was doing business. More specifically when the assessee either utilized his own funds / family funds or did not pay any interest and depicted the transactions in shares under investment portfolio. During hearing, it was also explained by the learned counsel for the assessee that accounts were maintained by the assessee in two separate capacities i.e. trader and investment and never treated the same as holdings of shares as stock in trade which clarifies the intention of the assessee. - Decided in favour of assessee.
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2014 (12) TMI 1349
Recovery of service tax - Section 73 (1) of the Finance Act, 1994 - suppression of facts - HELD THAT:- The finding of fact is based on a proper appreciation of the material on record and since no material was placed by the appellant – Department to show that there was suppression of facts by the respondent – Agency, the Tribunal rightly held that the appellant Department was not liable to levy the service tax for a period extending one year - Since none of the ingredients mentioned in the proviso to Section 73 of the Act applied to the facts of the case, the Tribunal rightly found that the imposition of penalty on the respondent was not justified as penalty could be levied under Section 78 of the Act, only if either of the five ingredients in the proviso to Sub Section 1 of Section 73 of the Act, which are also the ingredients mentioned in Section 78 of the Act for imposition of penalty, were satisfied.
Since the finding recorded by the Tribunal does not give rise to any substantial question of law, the appeal is dismissed with no order as to costs.
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2014 (12) TMI 1348
Initiation of adjudicating proceedings - failure to furnish the exchange control copy of bill of entry in confirmation of having imported materials for which foreign exchange was remitted to the account of SACL at Punjab National Bank, Kasturba Gandhi Marg, New Delhi (PNB) - contravention of Sections 8(3) and 8(4) read with Section 68 of the Foreign Exchange Regulation Act, 1973 (FERA) - Time limitation - HELD THAT:- In the present case, the AT was in error in holding that the appeals before it were barred by limitation since they were filed beyond the outer limit of 90 days. The AT ought to have considered the explanation given by the Appellants for the delay in filing the appeals - Having considered the explanation offered by the Appellants for the delay in filing their respective appeals, the Court is of the view that the delay was for bonafide reasons and ought to be condoned.
The Court notes that the question of the consequences of the failure to make the pre-deposit has been considered by the AT in the context of FERA and not FEMA. Secondly, the merits of the appeals have been considered only in relation to one of the transactions of the paper division of SACL involving US$20,000 and not the other transaction at serial No.8 of the SCN, concerning the fertiliser division of SACL valued at US $ 174,000.
Impugned order set aside - appeal allowed.
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2014 (12) TMI 1347
Grant of Bail - Whether the impugned order passed by the High Court deserves legitimate acceptation and put in the compartment of a legal, sustainable order so that this Court should not interfere with the same in exercise of jurisdiction Under Article 136 of the Constitution of India?
HELD THAT:- We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body - A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream.
Coming to the case at hand, it is found that when a stand was taken that the 2nd Respondent was a history sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd Respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non-application of mind - the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.
The Respondent No. 2 is commanded to surrender to custody forthwith failing which it shall be the duty of the Investigating Agency to take him into custody immediately - the order passed by the High Court admitting the Respondent No. 2 on bail is set aside - Appeal allowed.
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2014 (12) TMI 1346
Maintainability of petition - failure to fulfill the requirement of pre-deposit - second proviso to Section 31 of the A.P. VAT Act - HELD THAT:- As has been held by this Court, in its order in M/s. MBS Impex Pvt. Ltd Judgment [2014 (10) TMI 1006 - ANDHRA PRADESH HIGH COURT], the power available to the Supreme Court under Article 142 of the Constitution of India is not available to the High Court and, in the light of the Division bench Judgment in Ankamma Trading Company [2011 (2) TMI 1254 - ANDHRA PRADESH HIGH COURT], this Court would not be justified in passing any order contrary thereto.
Petition dismissed.
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2014 (12) TMI 1345
Admission of additional evidence under Rule 46A of the Act - CIT-A refusing to take into consideration the relevant documents admitted - HELD THAT:- While refusing to take into consideration the relevant documents which were very much necessary for the just decision of the case CIT(A) failed to exercise his appellate jurisdiction u/s 250 of the Act. The duty was also cast upon the Ld. CIT(A) to admit and consider the evidence produced before him by the assessee. As in the case of Smt. Prabhavati S. Shah Versus Commissioner Of Income-Tax - [1998 (2) TMI 107 - BOMBAY High Court]
Powers conferred on the first appellate authority under sub-section (4) of section 250 of the Act, being a quasi-judicial power, it is incumbent on him to exercise the same, if the facts and circumstances justify.
Even otherwise under Rule 46A(4) of the Income tax Rules, CIT(A) has been given power to call for production of any document or the examination of any witnesses to enable him to dispose of the appeal. There is no doubt about the legal position that if any document furnished by the assessee before the CIT(A) is in the nature of clinching evidence which goes to the root of the case then in the interest of justice such types of evidence should not be rejected. The documents relied upon by the assessee are very much relevant and necessary for the just and proper decision of the case, hence, we set aside the findings of the CIT(A) on these issues and remand back the matter to the file of AO with a direction to admit the additional evidences sought to be furnished by the assessee.
Non granting TDS credits - HELD THAT:- As we already restored the matter to the file of the AO while allowing the prayer of the assessee for furnishing of additional evidence on the above stated issues. This issue is also restored to the file of the AO for decision a fresh after verifying the claim of the assessee in this respect.
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2014 (12) TMI 1344
Non-appreciation of Extended period of limitation - no reasonable care taken as required under rule 7(2) of the Cenvat Credit Rules, 2002 - credit denied for inputs purchased from Itisha Aluchem Industries - demand of cenvat credit, interest and penalties - HELD THAT:- Tax Appeal is Admitted for consideration of the substantial questions of law.
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2014 (12) TMI 1343
Deduction u/s 80IB(10) - HELD THAT:- Present Tax Appeal is ADMITTED to consider the following substantial questions of law:
“(1) Whether the ITAT was justified in allowing the deduction u/s 80IB(10) of the Act, without appreciating the fact that the project was sanctioned with commercial area more than the specified limit as prescribed in clause (d) of section 80IB(10) of the Act and therefore not eligible for deduction?
(2) Whether the ITAT was justified in allowing the deduction u/s 80IB(10) of the Act, without appreciating the fact that the completion certificate for the shops as well as the residential flats had not been obtained before the prescribed time limit i.e. 31.03.2008 as stipulated in clause (a) of section 80IB(10) of the Act?
(3) Whether the ITAT is correct in facts and circumstances of the case in allowing the deduction u/s 80IB(10) of the Act, without appreciating the fact that the assessee has entered into separate agreements with individual buyers for construction works and thus carried out construction of residential houses as a contractor, rendering it ineligible for deduction u/s 80IB(10) of the Act?”
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2014 (12) TMI 1342
Extraction/removal of any mineral vested in the State without lawful authority or without a lawful assignment by the State - Held that:- The "ordinary earth" used for filling or levelling purposes in construction of embankments, roads, railways, buildings is deemed to be a minor mineral. It is not in dispute that in the present appeals excavation of ordinary earth had been undertaken by the Appellants either for laying foundation of buildings or for the purpose of widening of the channel to bring adequate quantity of sea water for the purpose of cooling the nuclear plant. The construction of buildings is in terms of a sanctioned development plan under the MRTP Act whereas the excavation/widening of the channel to bring sea water is in furtherance of the object of the grant of the land in favour of the Nuclear Power Corporation.
The liability Under Section 48(7) for excavation of ordinary earth would, therefore, truly depend on a determination of the use/purpose for which the excavated earth had been put to. An excavation undertaken to lay the foundation of a building would not, ordinarily, carry the intention to use the excavated earth for the purpose of filling up or levelling. A blanket determination of liability merely because ordinary earth was dug up, therefore, would not be justified; what would be required is a more precise determination of the end use of the excavated earth; a finding on the correctness of the stand of the builders that the extracted earth was not used commercially but was redeployed in the building operations. If the determination was to return a finding in favour of the claim made by the builders, obviously, the Notification dated 3.2.2000 would have no application; the excavated earth would not be a specie of minor mineral Under Section 3(e) of the Act of 1957 read with the Notification dated 3.2.2000.
Appeal allowed - decided in favor of appellant.
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2014 (12) TMI 1341
Disallowance u/s 40A(3) - payment in cash exceeding permissible limits - scope of amendment to act - retrospective effect of amendment - HELD THAT:- The proviso 40A(3) prior to amendment only prohibited incurring of expenditure in respect of which a payment is made in a sum exceeding twenty thousand rupees otherwise than by an account payee cheque drawn on a bank or account payee bank draft was not allowed of the deduction, when the law was amended on 1.4.2009 by Finance Act, 2008, when the word 'aggregate of payments' made to a person in a day was incerted.
It means till the date even if such payment is made by virtue of the earlier provision, the assessee would not denied the benefit of deduction. When the assessee was enjoying the benefit till the date of amendment, by this amendment tax cannot be levied retrospectively, it would cause great hardship. Therefore, the authority were not justified in holding that the said provision is restrospective and levying taxes on the basis of the said amended provision. In that view, certainly it was not clarificatory in nature. Therefore, the first substantial question of law is answered in favour of the assessee
Income from sale of shares - busniss income or short term capital gain - correct head of income - HELD THAT:- The assessee is an ayurvedic Doctor and he is in the business of purchase and sale of ayurvedic preparations. He has in all invested about 2.2 lakhs rupees in purchase of shares. The evidence on record shows the said investment is not paid from the borrowed capital. When the Tribunal holds a sum of ₹ 16,665/- is to be treated as LTCG and do not fall under the heading of Income from business or profession, we do not find any justification to bring the remaining income under the said head. No logic or reason for making the distinction. In the facts of this case, we are satisfied that the Income derived by the assessee from sale of shares would not fall within the head of Income from business or profession and therefore, the impugned order passed by the Tribunal is hereby set aside. - Decided in favour of assessee.
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2014 (12) TMI 1340
Whether proviso to Section 16 Explanation II(5) of Tamil Nadu Advocates' Welfare Fund Act, 1987 denying the payment of two lakh rupees to the kin of advocates receiving pension or gratuity or other terminal benefits would be violative of Article 14 of the Constitution of India?
Whether distinguishing this class of advocates from other law graduates enrolling in the Bar straight after their law degree did not have any rational basis?
Held that:- As per the scheme of the Welfare Fund Act, every advocate who has enrolled with the State Bar Council as per the Advocates Act 1961 would not automatically become a member of the Advocates' Welfare Fund and it is only those advocates who applied to the Trustee Committee, can become member of the Advocates' Welfare Fund. As per Section 15 of the Welfare Fund Act, only those who applied on payment of membership of ₹ 200/- towards application shall be admitted as a member of the Fund. It is thus not in dispute, not only the advocates who have enrolled with the Bar Council immediately after completion of their law degree, but also those who enrolled as advocates after their retirement from other employment may become the members of the Advocates' Welfare Fund. It is only those advocates who have become the members of the Advocates' Welfare Fund, are eligible for the benefits under the Welfare Fund Act which may be the payment of schedule amount on cessation of practice in terms of Section 16(1) and payment of lump sum amount as per the impugned proviso.
The persons who enrolled as advocates after their retirement even though they are denied the benefit of lump sum payment under the impugned proviso, on cessation of their practice, they shall be entitled to the Welfare Fund at the rate specified in the schedule. The differentiation of the retired employee-advocates who have set up practice as advocates after demitting their office, who are in receipt of pension or other terminal benefits and the advocates who set up practice straight from the law college, in our considered view, appears to be rational and reasonable. The said classification, in our view, has a nexus with the object sought to be achieved.
Statement of Objects and Reasons of the Tamil Nadu Welfare Fund Act clearly states that the Welfare Fund is intended to provide welfare to the advocates and to provide them retirement benefits. - on cessation of practice, the members of the Welfare Fund are entitled to the benefits as available in the schedule to the Welfare Fund Act based on the years of service and what is denied is just a lump sum amount. It is an established principle that mere hardship caused to a group should not be a ground to strike down a law.
While Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects, and transactions by the legislature for the purpose of achieving specific ends. But classification must not be "arbitrary, artificial or evasive". It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation - What is necessary is that there must be nexus between the basis of classification and the object of the Act. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory.
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2014 (12) TMI 1339
Maintainability of execution application - Appointment of arbitrators - Enforcement of a foreign award - interim order passed restraining the judgment debtor from withdrawing any sum from the bank accounts - GAFTA Rules - Held that:- It is an institutionalized arbitration. The rules provide the manner in which the parties are to act in matters relating to arbitration. Elaborate procedures and mechanisms are provided in the Act for conduct of the arbitration. Rule 3 of GAFTA Rules deals with appointment of the Tribunal. It clearly shows that the disputes shall be heard and determined by a Tribunal or three Arbitrators (appointed in accordance with Rule 3.2) or, if both parties agree by a single Arbitrator (appointment in accordance with Clause 3.1). Once the petitioner has named an arbitrator and sent the notice to the opposite party it was open to the opposite party either to accept the said name or to disagree with the same, not later than 9th subsequent day after serving of the said notice, failing which the consequences mentioned in the other rules shall follow - On the basis of the materials on record it cannot be said that GAFTA Rules have not been followed with regard to the appointment of the Arbitrator.
This Court is of the view that the objection raised by Mr. Mitra with regard to the maintainability of the petition cannot be accepted. Such objection is overruled. This execution application is held to be maintainable.
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2014 (12) TMI 1338
Penalty u/s 271(1)(c) - inaccurate particulars or concealment of income - HELD THAT:- We find that section 271(1)(c) postulates imposition of penalty for furnishing of inaccurate particulars and concealment of income. On the facts and circumstances of this case the assessee’s conduct cannot be said to be contumacious so as to warrant levy of penalty. - See Case of COMMISSIONER OF INCOME-TAX VERSUS RELIANCE PETROPRODUCTS PVT. LTD. [2010 (3) TMI 80 - SUPREME COURT] mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the Return cannot amount to the inaccurate particulars. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under s. 271(1)(c). - Decided in favour of assessee.
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2014 (12) TMI 1337
Compounding of tax - Section 8 of the KVAT Act - dealer in Gold - AO found that the highest turn over conceded by assessee which lead to the compounding allowed for the assessment year 2006-2007 was wrong - revision of assessment - Held that:- The Deputy Commissioner is competent to revise an assessment prejudicial to the interest of the revenue, no matter, such assessment is completed based on an erroneous compounding order passed by the officer in Form No.21A which was not cancelled or revised by the Deputy Commissioner. There is no dispute that the order issued by the Deputy Commissioner under Section 35 is within the time for revision of regular assessment passed by the assessing officer under Section 17(3). So much so, the Tribunal rightly rejected the assessee's challenge against the order of the Deputy Commissioner on the ground of limitation.
Power of rectification provided under Section 66 of the KVAT Act - Held that:- Power of rectification provided under Section 66 of the KVATAct can be invoked only when apparent error is found on the face of the record. This, therefore, necessarily means that the error sought to be rectified is that committed by the assessing officer and is not an error on account of a wrong declaration made by the assessee - there are no substance in the contentions raised.
Referring to the provisions of Section 25, counsel contended that the assessment under this Section has to be based only on turn over and that in a case of compounding the said power under Section 25 cannot be invoked - Held that:- This contention also cannot be accepted. We have already seen that the assessing officer has found that the compounding allowed was vitiated for the reason that the turn over based on which compounding was allowed as conceded by the assessee was wrong and hence compounding itself is erroneous. Once it is so found, the entire turn over of the assessee has to be treated as escaped turn over. In such a situation, the entire turn over has to be treated as escaped turn over available for assessment and if so the power under Section 25 can be invoked.
The assessee had other legal contentions which were not considered by the Tribunal as according to the Tribunal the fundamental issue to be decided was if the assessing authority was within his powers to assess the dealer under Section 25. Once we uphold the competence of the assessing officer, we have to necessarily remit the cases back to Tribunal, with a direction to consider the other contentions raised by the assessee and to dispose of the appeals according to law - appeals are remitted to the Tribunal with a direction to consider the other contentions that are urged by the assessee.
Revision allowed.
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9911796707
