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Case Laws
Showing 101 to 120 of 701 Records
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2005 (3) TMI 729 - ALLAHABAD HIGH COURT
Sale of tyres and tubes used in "cart"—as animal driven vehicle (ADV) - exemption from trade tax - Powers u/s 21(2) - reassessment proceedings - HELD THAT:- We find that the words "tyre, tube and pneumatic tyre" in the notification tend to give rise to ambiguity and is otherwise redundant. The notification dated January 30, 1982 with the use of these words could be stretched to mean that only a "cart" which had "tyre/tube or pneumatic tyres" was entitled for exemption. Converse of it meant a "cart" which had wheels other than tyre/tube, pneumatic tyre and even though used as an agricultural implement otherwise as is commonly used in India by agricultural community as part of conventional agricultural implements was excluded from exemptions. Apparently this could not be the intention and that too visibly for no good reason pointed out before us. To interpret the notification in a manner which would certainly run contrary to the prima facie object and intention to grant exemption to tyre and tube used as part of agricultural implement (i.e., "cart"), cannot be accepted.
Moreover, we find no apparent or reasonable ground, with reference to the object and purpose, for creating a distinction between a "cart" which has wheel (with tyre, tube pneumatic tyre) and one which does not have such tyre-tube, when referred to an "agricultural implement".
We, therefore, hold that the exemption granted to the petitioner in respect of tyre and tube, which is undoubtedly a "part" of "cart" used as agricultural implement, on alleged pretext of change of opinion by the assessing authority, does not justify reassessment and no case is made, in the facts of instant cases, to warrant exercise of reassessment by the respondents u/s 21 of the Act.
In the result, the impugned orders dated February 25, 2005/ annexure 10 in W.P. (assessment year 1998-99), annexure 4 in W.P.(assessment year 1999-2000), annexure 4 in W.P. No. 457 of 2005 (assessment year 2001-02) and consequent notices are set aside.
Writ petitions stand allowed.
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2005 (3) TMI 728 - KERALA HIGH COURT
... ...
... ... ..... allowed and the impugned orders are set aside. 27.. In the aforesaid view taken, we do not think it is necessary to go in detail with respect to the contentions that have been raised in O.P. No. 4567 of 1993. The challenge is against the demand notice for turnover tax and penal interest for the year 1992-93. O.P. No. 4726 of 1999 is filed challenging the revised assessment orders urging eligibility for exemption available to pharmacies in the State in respect of the assessment years 1987-88 to 1993-94. As we have found that the assessee was a charitable institution and functioning as pharmacy, the demands could not have been sustainable. The said original petitions therefore stand allowed. The impugned orders are quashed. 28.. However, we may clarify that Arya Vaidya Sala will be liable to remit to the State any amount of tax of whatever nature, collected during the above period, if not already handed over. This should be done within one month from today. Petitions allowed.
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2005 (3) TMI 727 - KERALA HIGH COURT
... ...
... ... ..... railways to give their suggestions to the Commissioner and Commissioner will consider the same and fix centres where returns have to be filed. 5.. The Commissioner of Commercial Taxes is free to issue more precise instructions under section 3(1A)(c) of the Act which shall be complied with by the railways. 6.. Since the State Government could not hitherto enforce the provisions of the KGST Act and Rules through statutory authorities to prevent evasion of tax for goods transported through railways and railways allowed its officers to ignore the provisions of the KGST Act and Rules and Commissioners instructions in regard to transport of goods through railways, all penalty orders challenged in these original petitions and writ petitions against individual officers of the railways are quashed but declaring the authority of the statutory authorities under the KGST Act to levy penalty on the officers of the railways for violations in the future. Petitions disposed of accordingly.
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2005 (3) TMI 726 - KERALA HIGH COURT
... ...
... ... ..... lotted angles and panels separately sold are not furniture made of iron and steel. We find it difficult to subscribe to that view also. Further reference to larger Bench is unnecessary since entry with which we are concerned is entry 145 as it stood then. We are of the view, even without the Explanation introduced later, slotted angles would fall under entry 145. We therefore answer the question in favour of the Revenue and hold that slotted angles and panels, etc., would fall under entry 145. Assessee is therefore bound to pay tax at the rate of 12 per cent. Order of the Tribunal in T.A. No. 808 of 1995 is set aside and the order of the assessing authority is upheld. Appeal filed by the State is partly allowed and the question is answered in favour of the Revenue. We hold that slotted angles and panels are furniture and the levy of tax at 12 per cent on the sales turnover of slotted angles and panels under entry 145 of the First Schedule is upheld. Petition allowed in part.
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2005 (3) TMI 725 - CALCUTTA HIGH COURT
... ...
... ... ..... ed. This significant aspect does not appear to have been properly dealt with by the Tribunal. We find it difficult to ignore the same and more so, in view of the consistent decisions of the various courts, as referred to earlier. 19.. In our opinion, the facts and circumstances leave us with no option but to hold that the seizure was not at all justified. 20.. The writ application being W.P.T.T. No. 10 of 2004 be allowed on contest. 21.. Accordingly, the order of seizure of goods dated March 5, 2004, the order dated March 9, 2004 passed by respondent No. 1 and the impugned order dated March 24, 2004 passed by the West Bengal Taxation Tribunal, in case No. RN-110 of 2004 be all set aside. Goods seized be released in accordance with the provisions of law. 22.. No order as to costs. 23.. Urgent xerox certified copy of this order, if applied for, be supplied to the parties after due compliance with the legal formalities. ALOKE CHAKRABORTY, J. - I agree. Writ application allowed.
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2005 (3) TMI 724 - PATNA HIGH COURT
... ...
... ... ..... by the customers in view of the law laid down as stated above as it is admitted fact that it can be used for dual purposes. The burden was on the Revenue to prove that it is used as hair oil and not edible oil. No doubt, the court can take judicial notice of the fact and in that case proof is not required, but in a case like this when the articles are of dual use, it is not safe to take a judicial notice on the other hand it is better that some materials are brought on record by the Revenue to discharge the burden. 19.. Thus, in our considered view for the aforesaid reasons, the order passed by the Tribunal is vitiated and it requires reconsideration in the light of the law indicated above. 20.. Accordingly, the order passed by the Tribunal is quashed and the matter is remitted to the Tribunal for fresh consideration in the light of the observations made above. 21.. In the result, both the writ applications are allowed. S.N. HUSSAIN, J. - I agree. Writ applications allowed.
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2005 (3) TMI 723 - SUPREME COURT
Whether the Respondents have completed 240 days of service or not?
Held that:- The Appellant herein raised a specific plea denying or disputing the claim of the Respondents that they had completed 240 days of work. Such a plea having been raised both before the Industrial Tribunal as also before the High Court, we cannot accept that the Appellant had abandoned such a plea.
The contention of Mr. Phadke that they have abandoned the said plea cannot be accepted. Similarly, the contention of Mr. Phadke raised before us that the order passed by the Division Bench was a consent order is unacceptable. The Division Bench does not say so. Such a contention has been raised only on the basis of a statement made by the Respondents in the Counter-affidavit wherein the reference had been made to one order of the Division Bench asking the parties to make endeavour for settlement. The Respondents contend that the order of the Division Bench is virtually a consent order. No settlement admittedly had been arrived at. A party to the lis, in absence of a statutory interdict, cannot be deprived of his right of appeal. The High Court has passed the judgment upon consideration of the rival contentions raised at the Bar. It arrived at specific findings on the issues framed by it. It has, for the reasons stated in the impugned judgment, affirmed the findings of the Industrial Tribunal as also the learned Single Judge. The impugned order of the Division Bench, in our opinion, by no stretch of imagination, can be said to have been passed with consent of the parties. However, we agree with the opinion of the Tribunal that the plea of abandonment of service by the Respondents in the facts and circumstances of the case was wholly misconceived. For the reasons, aforementioned, the impugned judgments cannot be sustained which are accordingly set aside. The appeals are allowed.
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2005 (3) TMI 722 - SUPREME COURT
Whether there is ouster of jurisdiction of other courts?
Held that:- In the case on hand the clause in the indent is very clear, viz., "court of Bombay and no other court". The trial court on consideration of material on record held that the court at Calcutta had no jurisdiction to try the suit.
The High Court in the earlier part of the judgment noted that the invoice contained clause like "under jurisdiction of the court from where the goods have been dispatched" and in the indent (contract) a clause like "dispute under this contract shall be decided by the courts of Bombay and by no other courts". In our opinion the approach of the High Court is not correct. The plea of the jurisdiction goes to the very root of the matter. The trial court having held that it had no territorial jurisdiction to try the suit, the High Court should have gone deeper into the matter and until a clear finding was recorded that the court had territorial jurisdiction to try the suit, no injunction could have been granted in favour of the plaintiff by making rather a general remark that the plaintiff has an arguable case that he did not consciously agree to the exclusion of the jurisdiction of the court.
Thus the view taken by the trial court was perfectly correct and the High Court has erred in reversing its order and granting an injunction in favour of the plaintiff. The appeal is accordingly allowed and order dated 21.5.2002 of the High Court is set aside.
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2005 (3) TMI 721 - PUNJAB & HARYANA HIGH COURT
... ...
... ... ..... o ), who observed that since the Assessing Officer had himself treated the said amount of Rs. 2,83,53,123 towards the cost of machinery for the purpose of allowance of depreciation, he could not be allowed to take a contradictory stand while allowing investment allowance. This finding has been upheld by the Tribunal on further appeal by the Revenue. Mr. D. S. Patwalia, learned counsel for the Revenue, has not been able to controvert the factual position that the sum of Rs. 2,83,53,123 has been treated as cost of machinery for the purpose of allowance of depreciation. We, therefore, find no infirmity in the orders of the Commissioner of Income-tax (Appeals) as well as the Tribunal in holding that the actual cost of machinery and plant for the purpose of investment allowance had to be the same. We are, therefore, satisfied that no substantial question of law arises out of the order of the Tribunal for consideration of this court. The appeal is, accordingly, dismissed in limine.
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2005 (3) TMI 720 - ALLAHABAD HIGH COURT
Effort by placing same evidence, same document and same averments for taking different view than taken at earlier stage, can never be the scope of review petition otherwise, there may not be any end of the matter as the loosing party will always try to get review petition filed and that too, may be some more eminent advocate according to his expectations for the purpose of vehement re arguments in the matter in the hope of getting some changed opinion favouring him.
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2005 (3) TMI 719 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Application before Settlement Commission ... ... ... ... ..... eme of Chapter V of the Act relating to settlement of cases stipulates that a settlement, effective and meaningful, would require candid co-operation and frankness from a tax payer, even if such assessee had not been candid in the past. This concept was further, elaborated by Their Lordship of Supreme Court in the matter of Commissioner of Income Tax v. Express Newspaper Ltd., (206 I.T.R. 443) rdquo . Following this observation the Principal Bench had rejected the application of M/s. Modi Alkalies and Chemicals Ltd. 12. emsp Following the above ratios, this Bench also is of the firm view that the application of M/s. Tirumala Seung Han Textiles Ltd. doesn rsquo t merit admission for want of full and true disclosure, even without going into the merits of the rest of the pleas of the hellip . (sic). Therefore, all the applications of the seven applicants are rejected and not allowed to be proceeded with, in terms of sub-section (1) of Section 32F of the Central Excise Act, 1944.
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2005 (3) TMI 718 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Interest - EPCG Scheme ... ... ... ... ..... of the Handbook of Procedure with effect from 22-5-2003. Taking into account the above facts, the application is settled under Section 127C(7) of the Customs Act, 1962 on the following terms and conditions. (i) The duty liability having been discharged in this case by the applicant, M/s. Halgona Radiators Pvt. Ltd., Anekal Taluka, Bangalore-562106, immunity from interest in excess of 15 Simple Interest per annum is granted. The revenue shall calculate the interest payable and communicate to the applicant within 15 days from the date of receipt of this order and the applicant shall pay the same within 15 days thereafter and report compliance. 11. emsp The aforesaid settlement shall be void if it is subsequently found by Settlement Commission that it has been obtained by fraud or misrepresentation of facts. Immunity is granted under Section 127H(1) of the Customs Act, 1962. Attention of the applicant is also drawn to the provisions of sub-sections 2 and 3 of Section 127H ibid.
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2005 (3) TMI 717 - ITAT BANGALORE
Exemptions - Educational Institutions ... ... ... ... ..... if (i) it is existing solely for educational purposes and (ii) it is not existing for the purpose of profit. No conditions are attached as to how funds of the institution should be invested. By advancing the sum to the trustee, the object of educational purpose is not defeated. The assessee trust was treated as eligible for exemption under section 10(22) even in earlier years. Thus, by advancing the sum to the trustees it cannot be said that the trust is not existing solely for educational purposes. The Circular of CBDT No. 712, dated 25-7-1995 makes this issue very clear. The decision of Hon rsquo ble Delhi High Court relied by learned counsel for assessee also supports our above view. Since advancing of the sum is the only ground to deny exemption under section 10(22), we hold that the same is not in accordance with law and hence the assessee is eligible for exemption under section 10(22) in respect of income earned by the institution. In the result, the appeal is allowed.
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2005 (3) TMI 716 - ITAT MUMBAI
Power to rectify mistakes ... ... ... ... ..... nal rsquo s impugned appellate order, mistake apparent from record has occurred, rendering the said appellate order of the Tribunal liable to be rectified by essentially recalling the same for passing a fresh order in accordance with law after considering the various facts on record as also the judicial decisions cited by the learned counsel for assessee-petitioner. On this view of ours, we are supported by the decision of the Hon rsquo ble Madhya Pradesh High Court in the case of CIT v. Mithalal Ashok Kumar 1986 158 ITR 755 wherein the Hon rsquo ble Court has held the direction for hearing of the appeal did not amount to review in the strict sense of the term . We, therefore, set aside/recall the Tribunal rsquo s appellate order dated 26-2-2003 and direct the registry to fix the related appeal for hearing so as to be decided afresh in accordance with law. 8. In the result, miscellaneous application filed by the assessee is treated as allowed to the extent as indicated above.
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2005 (3) TMI 715 - ITAT BANGALORE
Deductions u/s 80M - Intercorporate dividends - expenses incurred on employees of the company - HELD THAT:- The learned counsel for assessee submitted that as there is no expenses at all have been incurred in the earning of dividend income, the Assessing Officer has to compute the deduction on the entire gross dividend. The Assessing Officer should not have restricted it to 95% of the gross dividend. At the time of hearing, learned counsel for assessee also relied on the decision of the Tribunal in the case of Canbank Financial Services Ltd. Applying the same, we allow the ground raised by the assessee on this issue.
The case of the assessee is that the Hon’ble Supreme Court in the case of Mysore Minerals Ltd. v. CIT [1999 (9) TMI 1 - SUPREME COURT] held that for the purpose of allowance of depreciation in income-tax assessment, the assessee need not be registered owner of the property in question.
From the records, it is seen that in fact, the assessee had raised the ground before the CIT(A) but in view of the decision of the Karnataka High Court in the case of CIT v. Bharath Gold Mines Ltd.[1991 (2) TMI 56 - KARNATAKA HIGH COURT], assessee seriously did not contest this issue. However, as of now, the decision of the Hon’ble Supreme Court will hold the field. We are of the view that the additional ground has to be taken on file. Further, in view of the decision of the Hon’ble Supreme Court, we find force in the stand taken by the assessee and therefore, the additional ground raised by the assessee is allowed. It is ordered accordingly.
In the result, the appeal filed by the assessee is allowed.
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2005 (3) TMI 714 - ITAT CHENNAI
Block assessment in search cases, Return of income, etc., not to be invalid on certain grounds
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2005 (3) TMI 713 - ITAT BANGALORE
Block assessment ... ... ... ... ..... against the investment in gold. It has to be remembered that the sum of Rs. 75,000 was only an estimate and could not have come within the definition of the term lsquo undisclosed rsquo . When it is not undisclosed income, there is no question of applying the provisions of section 158BB(1)(d) at all. It is an admitted position that the gold valued at Rs. 1,68,364 was undisclosed and this could legitimately be assessed as undisclosed in the block assessment made but if it is to be taken that a sum of Rs. 75,000 was income earned during the previous year relevant to the assessment year 1997-98, then the said sum is available to explain the investment made during the year. Hence, looked at from any angle, the assessment of the sum of Rs. 75,000 in block assessment is not warranted. In view of the findings stated above, we hereby delete the additions of Rs. 67,125 and Rs. 75,000 made in the block assessment dated 29-4-1999. In the result, appeal of the assessee is partly allowed.
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2005 (3) TMI 712 - ITAT BANGALORE
Capital gains ... ... ... ... ..... shares received on exchange is not to be conducted as cost or actual cost to the assessee. Section 48 provides that capital gain is to be computed after deducting cost of acquisition of asset transferred. The cost is what appeared in the balance sheet. The fair market value of asset acquired thereafter do not become the cost of asset transferred. Thus, there is no logic in adopting the fair market value of shares received in exchange as the cost of shares transferred. We, accordingly, do not find any infirmity in the order of learned CIT(A). This ground is accordingly dismissed. 6. The next ground is regarding charging of interest under sections 234A and 234B. Charging of interest under section 234 is consequential in nature. The assessee do not deny its liability to pay advance tax. There is delay in filing return of income. Hence, charging of interest under sections 234A and 234B is valid. This ground is accordingly, dismissed. In the result, both the appeals are dismissed.
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2005 (3) TMI 711 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... imposition of penalty is not sustainable (xvi) that, without prejudice, duty has to be recomputed by giving the effect of cum-duty concept and allowing the Modvat of the credit reversed. 3. emsp The ld. Counsel also submitted that the applicants are passing through severe financial crisis due to extremely weak market conditions, poor demand, unremunerative prices and increase in administrative costs, etc. Therefore, if the applicants are made to deposit any amounts, it would adversely affect their working and jeopardize their operations. 4. emsp After hearing both sides and perusal of the records, we find that the applicants have been reversing the credit of Modvat because their regular goods were cleared. The question of reversal is not in dispute. The department rsquo s contention is that time of reversal is not prior to reversal. Since reversal is not a question, only the timing is to be ascertained. We, therefore, grant full waiver and stay recovery. (Pronounced in Court)
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2005 (3) TMI 710 - CESTAT, CHENNAI
... ...
... ... ..... ichment. The respondent approached the Commissioner (Appeals) for relief. The Commissioner (Appeals) allowed the claim subject to the test of unjust enrichment. The Revenue has come in appeal before this Tribunal against the impugned order of the Commissioner (Appeals) on the ground that the assessment order in respect of the impugned goods have not been challenged. It was contended on behalf of the Revenue that in the light of the Apex Court rsquo s decision in the case of Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) 2004 (172) E.L.T. 145 (S.C.) , refund claim contrary to assessment order is not maintainable without order of assessment having been modified or reviewed. Since the assessment order in this case has not been challenged and modified, the respondents are not entitled for the refund. Therefore, the order of the Commissioner (Appeals) is not maintainable. In the result, I allow the Revenue rsquo s appeal. (Dictated and pronounced in open Court)
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