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Case Laws
Showing 121 to 140 of 440 Records
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2003 (2) TMI 441 - CALCUTTA HIGH COURT
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... ... ..... and collection of tax. It being irrelevant whether such transaction by a Government was in the course of business. 22.. Lastly, it was feebly suggested that article 131 is attracted. The contention deserves to be rejected on the authority of the Constitution Bench decision in Union of India v. State of Mysore reported in AIR 1977 SC 127. Therein it was held that for the purposes of article 131 of the Constitution the dispute between or amongst the States and the Union of India has to be in their Constitutional capacity and not as a trader or manufacturer of goods. 23.. In my view, therefore, the dispute in the case on hand is clearly outside the scope of article 131 of the Constitution. 24.. In the circumstances writ application is liable to be and is accordingly dismissed, however, without any order as to costs. 25.. Let urgent xerox certified copy of this judgment and order be furnished to the appearing parties, if applied for, on priority basis. Writ application dismissed.
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2003 (2) TMI 440 - GAUHATI HIGH COURT
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... ... ..... cannot be lost sight of. There is no indication in the impugned orders that the above claim of the petitioner had been considered by the assessing authority though it was laid before it. Coal including coke being one of the declared goods under section 14 of the 1956 Act, the petitioner s claim for refund cannot be lightly brushed aside. 32.. In the light of the above discussion I cannot persuade myself to uphold the impugned orders. The orders dated October 28, 1998 impugned as well as the consequential notices of demand are therefore unsustainable and are set aside and quashed. I would however hasten to add that this would not come in the way of the State respondents to take any appropriate action in the attending facts and circumstances under the aforementioned two enactments in accordance therewith, if they deem it necessary. The petitions succeed and are allowed. In the facts and circumstances of the case, however, there would be no order as to costs. Petitions allowed.
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2003 (2) TMI 439 - ALLAHABAD HIGH COURT
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... ... ..... by the Commissioner when issuing the circular (or circulars) as suggested by us. 23.. Moreover, in Vinod Coal Syndicate v. Commissioner of Sales Tax, UP., Lucknow 1989 73 STC 317 1988 UPTC 218 it was held by the Supreme Court that freight charged separately is not part of the turnover. The definition of turnover in section 2(i), explanation II, clause (i) excludes the cost of freight if separately charged. Annexure 1 to the writ petition clearly shows that freight has been separately charged. Hence we direct the Commissioner that when he issues the circular under section 8-C(3-A) he should fix the cash security on a basis which excludes the freight wherever separately charged. 24.. In the circumstances the writ petition is allowed. The impugned circular dated June 26, 1999 is quashed. The Commissioner, Trade Tax, U.P., is directed to re-fix the rate of cash security for issuance of form XXXI on stone ballast in the light of the observations made above. Writ Petition allowed.
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2003 (2) TMI 438 - TAMIL NADU TAXATION SPECIAL TRIBUNAL
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... ... ..... f Commercial Taxes, Chennai-5, it is better that such clarification is affirmed by the competent court or Tribunal in accordance with law. Therefore, we feel that it is a fit case to invoke writ jurisdiction, under the exceptional circumstances stated above. 12.. In the result, we set aside the proceedings of the learned Special Commissioner and Commissioner of Commercial Taxes, Chennai-5 in Acts. Cell-II/63026/2002 dated September 19, 2002. As far as the assessment orders for the assessment years 1998-99 and 1999-2000 levying tax at the rate of 16 per cent are concerned, the assessing officer should follow our directions stated above while levying the tax on these items. O.P. Nos. 1071, 1083 and 1084 of 2002 are ordered accordingly. And this tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 27th day of February, 2003. Ordered accordingly.
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2003 (2) TMI 437 - ALLAHABAD HIGH COURT
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... ... ..... e FCI that FCI did not charge any trade tax from the petitioners on the wheat procured from within the State of U.P. on which tax stood paid at the time of purchase. 20.. In paragraphs 6 and 8 of the rejoinder affidavit it has been denied that the petitioners are claiming any refund for wheat purchased by the FCI from outside U.P. and sold against form III-B. 21.. Hence, this controversy as to whether the tax has been realised by FCI on U.P. purchased wheat from the petitioner and the same has been deposited by the FCI with the assessing authority has to be decided. Since this is a factual controversy we cannot decide it in writ jurisdiction. It should be decided by the assessing authority of FCI to whom the petitioners may make an application as mentioned above and it must be decided very expeditiously. If it is decided in favour of the petitioner the petitioner should be given refund forthwith. 22.. The petition is disposed of accordingly. Petition disposed of accordingly.
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2003 (2) TMI 436 - SUPREME COURT
Whether the Chief Conservator of Forest as the petitioner/appellant in the writ petition/appeal is a mere misdescription for the State of Andhra Pradesh?
Whether it is a case of non-joinder of the State of Andhra Pradesh - a necessary party?
Held that:- No hesitation incoming to the conclusion that it was not only inappropriate but also illegal for the Chief Conservator of Forest, though he might have done so in all good faith, to have questioned the order of the Commissioner of Survey, Settlement and Land Record before the High Court of Andhra Pradesh in Writ Petition (C) No. 3414 of 1982. The Chief Conservator of Forests as the petitioner can neither be treated as the State of Andhra Pradesh nor can it be a case of misdescription of the State of Andhra Pradesh. The fact is that the State of Andhra Pradesh was not the petitioner. Therefore, the writ petition was not maintainable in law. The High Court, had it deemed fit so to do, would have added the State of Andhra Pradesh as a party; however, it proceeded, in our view erroneously, as if the State of Andhra Pradesh was the petitioner which, as a matter of fact, was not the case and could not have been treated as such. As the writ petition itself was not maintainable, it follows as a corollary that the appeal by the Chief Conservator of Forests is also not maintainable.
The permission granted to the concerned authority might be a permission to file an appeal which cannot reasonably be construed as authorisation to file the appeal in his own name, contrary to law. It could only be a permission to file the appeal in the name of the State of Andhra Pradesh in accordance with the provisions of the Constitution and the C.P.C. We may also record that in spite of the Pattedars taking objection to that effect at the earliest, no steps were taken to substitute or implead the State of Andhra Pradesh in the writ petition in the High Court or in the appeal in this Court.
For Civil Appeal No. 9097 of 1995 notification issued under Section 29 of the Forest Act shows that as many as fourteen villages are enumerated therein. Villages Asadpur and Malachintapalli do not figure in the notification. Even otherwise also, the notification does not show anything more than the fact that the Government has formed a protected forest area. That by itself does not extinguish the rights of the private owners of the land nor does it show that the lands in question vest in the State. A plain reading of the statutory order passed by the Commissioner of Survey, Settlement and Land Record under Section 166-B of the Land Revenue Act on December 5, 1981 places the matter beyond doubt that the suit lands were patta lands of the Pattedars. For all these reasons, in our view, the High Court has committed no error in confirming the said order of the Commissioner of Survey, Settlement and Land Record and the judgment and decree of the trial court.
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2003 (2) TMI 435 - SUPREME COURT
Whether clause (t) of the licence agreement can be read as a restriction of the right to transfer the community sites?
Held that:- Appeal allowed. The cap on profit, in our opinion, is irrelevant for the purpose of construction as regards the right of colonizer to transfer the land. Clause (t) of the Licence, in other words, cannot be construed to put in an implied limitation of the owner of the land to transfer its land. It is for the State of Haryana to invoke the said clause if and when any occasion arises therefor.
Furthermore, having regard to the fact that the DLF had made its intention to transfer the lands known through advertisements in the widely circulated newspapers; offerees must be held to have exercised their ’due diligence’ at the time of acquisition of interest in the plots and in that view of the matter such interest cannot be put in jeopardy unless it is found out without any difficulty whatsoever that the colonizer had no right to transfer the said land and the effect of such transfer would lead to illegality. The fourth parties are bona fide transferees for value and thus their right of claiming interest cannot be jeopardized by reason of executive instructions or otherwise particularly in absence of any pleadings by the respondents No. 1 and 2 to the effect that fraud has been practised by the colonizer or the parties colluded with one another to achieve an illegal purpose.
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2003 (2) TMI 434 - ITAT MUMBAI
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... ... ..... ms part of the total income. Thus, looking at from any angle, I am of the opinion that the assessee is not entitled to claim deduction of the interest referable to the amount borrowed for the purpose of investment in shares. No doubt, learned counsel raised an alternative plea that the shares as and when they are sold, the income/loss is assessable to tax under the head ldquo capital gains rdquo in which event, expenditure has to be allowed as deduction. However, it may be noticed that the assessee has not sold any shares till date and so far as this year is concerned, the contention of the assessee is academic. The case laws cited by the learned Authorised Representative are distinguishable on facts, particularly in the light of section 14A of the Income-tax Act, 1961. Under these circumstances, the order of the Commissioner of Income tax (Appeals), on this issue, is reversed and the order of the Assessing Officer is upheld. The appeal filed by the Revenue is partly allowed.
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2003 (2) TMI 433 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement Application - Maintainability of ... ... ... ... ..... sure, not disclosed before the proper officer. The proceedings are pending as is evident from the impugned SCN. As per sub-section (1) of Sec. 127B, an application can be filed at any stage of the proceedings and, accordingly, as all the conditions under Section 127B(1) are satisfied, the application is allowed to be proceeded with under sub-section (1) of Sec. 127C of the Customs Act, 1962. The amount of Rs. 2.63 crores already paid shall be adjusted against the admitted duty liability of Rs. 2,64,90,940/-. The balance of Rs. 1,90,940/- (though mentioned as Rs. 1,49,940/- both by applicant and Revenue apparently by mistake) shall be paid by the applicant within 30 days from the date of receipt of this order. 9. emsp With the admission of this application, this Bench of the Settlement Commission acquires the exclusive jurisdiction to exercise the powers and perform the functions of any officer of customs as provided under sub-section (2) of Sec. 127F of the Customs Act, 1962.
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2003 (2) TMI 432 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement Application - Maintainability of ... ... ... ... ..... - plus Rs. 28,47,179/-) proposed to be demanded in the SCN. Thus, the applicant satisfies the conditions of disclosing a liability not disclosed before the proper officer, the case covered by the application is pending, and the admitted duty liability exceeds Rs. 2 lakhs. The Revenue has also not brought on record or contended about failure in regard to any other condition for admission of the application. 23. emsp Accordingly, as all the conditions under Section 127B of the Customs Act, 1962 are satisfied, the application is allowed to be proceeded with in terms of sub section (1) of Section 127C ibid. The Revenue shall adjust the admitted additional duty liability of Rs. 48,59,967/- from the amounts already encashed by Revenue by enforcement of the Bank Guarantee executed by the applicant. 24. emsp With the admission of this application, the Bench acquires the exclusive jurisdiction to deal with this case in terms of sub section (2) of Section 127F of the Customs Act, 1962.
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2003 (2) TMI 431 - CEGAT, NEW DELHI
Demand, interest and penalty ... ... ... ... ..... After hearing both sides we directed the appellant to submit a calculation showing the clearances from 1-4-95 onwards. The calculation submitted before us would show that the duty liability of the appellant would be only Rs. 7,28,540. Since no mistake in the quantum of duty was pointed out by the ld. Departmental Representative on the above calculation we accept the above figure as correct quantum of duty payable by the appellant. Appellant is justified in its submission that the provisions of sections 11AB and 11AC would not be applicable in the present case as those provisions were brought into statute much after the period of demand under show cause notice dated 16-3-99. We, therefore, reduce the quantum of duty demand to Rs. 7,28,540 and set aside the direction to pay interest under Section 11AB. Penalty is imposed under Section 173Q, but we reduce the amount to Rs. 2 lakhs. The appeal is thus partly allowed. (Operative part of the order was pronounced in the open Court.)
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2003 (2) TMI 430 - ITAT DELHI
Business expenditure, Business disallowance - Excessive or unreasonable payments, ... ... ... ... ..... count of staff welfare expenses and Rs. 2,100 on account of subscription paid by the assessee. 17. The disallowances on account of misc. expenses and on account of staff welfare, were made by the Assessing Officer on ad hoc basis CIT(A) further allowed some relief again on ad hoc basis. These are petty disallowances and we are not inclined to interfere in the finding of CIT(A), therefore, on the reasoning given by CIT(A), we confirm these two disallowances. However, regarding disallowance on account of subscription (advertisement), we find that these expenses were incurred for business purposes. The Assessing Officer disallowed by merely observing that this was due to personal obligation of Director. In case of company there is no question of personal obligation. Therefore, these disallowances in our considered view were not justified. Accordingly we delete the same. 18. In the result the appeal of the department is dismissed and the appeal of the assessee is allowed in part.
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2003 (2) TMI 429 - ITAT DELHI
Speculative transactions ... ... ... ... ..... ombay High Court in the case of Kamani Tubes Ltd. (supra) have concluded that there should be speculative business regularly carried out by the assessee then only assessee rsquo s claim for loss from speculative transactions can be disallowed out of non-speculative business. Not only this, the order of ITAT Chandigarh Bench in the case of Udmi Ram Babu Ram v. ITO 1982 13 TTJ 582 and that of ITAT Amritsar Bench in the case of J.B. Solvex Industries (P.) Ltd. v. ITO 1991 58 Taxman 230 are to the same effect that single transaction settled otherwise than by actual delivery could not be treated as speculative transaction. In the absence of any material brought on record by the Assessing Officer to prove that assessee had entered into other speculative transactions, even if impugned transaction is taken as speculative, the loss cannot be disallowed but set off the said loss out of non-speculative business. 14. On the basis of above discussion the appeal of the assessee is allowed.
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2003 (2) TMI 428 - ITAT CHANDIGARH
Undisclosed investments, Method of Accounting - Estimation of profit, Block assessment in search cases
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2003 (2) TMI 427 - ITAT DELHI
Income escaping assessment ... ... ... ... ..... return could be made by 31-3-1996 under section 153. Since the impugned assessment order was passed on 25-3-1997, it was time barred and, therefore, liable to be set aside/cancelled. I find merit in the explanation of the assessee. The provisions of section 153 clearly provides that assessment on the basis of return could be completed either within two years from the end of assessment year or one year from the end of financial year in which the return was filed. On the basis of the facts on record, the assessment could be completed by 31-3-1996. Since the assessment was completed on 25-3-1997, the assessment was illegal, being time barred. Consequently, the order of CIT(A) is set aside and the assessment framed by the Assessing Officer is hereby quashed. 5. In view of the above discussion, the departmental appeal does not survive. Therefore, the same is dismissed as infructuous. 6. In the result, appeal of the assessee is allowed whereas the departmental appeal is dismissed.
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2003 (2) TMI 426 - ITAT AMRITSAR
Undisclosed investment ... ... ... ... ..... essing Officer made the addition of Rs. 15,500 which was confirmed by the CIT(A). 9.1 In the Second appeal, the Tribunal deleted addition vide its order dated 29-11-2002 in I.T.A. No. 20 (Asr.)/2002. The Tribunal observed that there was no basis for making the addition. Thus, keeping in view the past history as well as the submissions of the learned counsel for the assessee, I am of the opinion that the addition sustained by the CIT(A) is on higher side, particularly, when he has not assigned any cogent reasons while sustaining the addition of Rs. 18,600. In this case, the addition of Rs. 10,000 will meet the ends of justice. The assessee gets a further relief of Rs. 8,600. 10. Ground No. 4 relates to the charging of interest under sections 234A and 234B of the Act. It is stated that this ground of appeal is of consequen- tial in nature and the Assessing Officer is directed to give consequential relief, if any, to the assessee. 11. In the result, the appeal is partly allowed.
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2003 (2) TMI 425 - ITAT GAUHATI
Business disallowance - Interest, salary, etc., paid by firm to its partners ... ... ... ... ..... On the 1st Rs. 75000.00 of the book profit Rs. 50000.00 or 90 of the book profit, whichever is more. (b) On the next Rs. 75000.00 of the book profit 60 (c) On the balance of the book profit 40 The total salary to working partners calculated as above shall be equally divided among the two working partners mentioned in clause No. 9. In the case of insufficiency or inadequacy of profit the partners may decide to forgo the salary or they may change the manner of calculating salary to working partners. The learned Departmental Representative fairly conceded to this in the open Court and also accepted the fact that the remuneration paid by the assessee was ascertainable from the formulae embodied in the Partnership Deed as filed by the assessee. In the circumstances, we do not find any infirmity in the order passed by the learned CIT(A) which is hereby upheld and the ground of appeal taken by the Revenue is dismissed. 6. In the result, the appeal filed by the Revenue is dismissed.
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2003 (2) TMI 424 - ITAT AMRITSAR
Penalty - For late filing of return ... ... ... ... ..... l not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. Thus, considering the entire facts of the present case and also the decision of the Hon rsquo ble Supreme Court, referred to above, we are of the opinion that in the instant case, no penalty is leviable under section 271(1)(a) of the Act. Therefore, the penalty imposed by the Assessing Officer and confirmed by the CIT(A) is hereby cancelled. 9. In the result, the appeal is allowed.
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2003 (2) TMI 423 - ITAT CHANDIGARH
Deduction - Exporters ... ... ... ... ..... on, do not find any merit in the ground of appeal of the revenue and we confirm the order of the CIT(A) and direct the Assessing Officer not to set of loss computed as per clauses (a) to (c ) of section 80HHC(3), against the 90 of the export incentive while computing deduction under proviso to section 80HHC(3). Accordingly, we dismiss this ground of the revenue. Respectfully following the aforesaid decision of the Tribunal, we accept the ground raised by the assessee in both the years and direct the AO to ignore the loss from export computed in accordance with the main provisions of section 80HHC(3), while computing deduction and the same should be computed by taking the profits as per section 80HHC(3) at nil plus 90 of export incentive, subject to the condition that deduction will not exceed profits from business so far as claim of deduction under section 80HHC is concerned. 4. Rest of the grounds stand rejected as not pressed. 5. In the result, both the appeals are allowed.
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2003 (2) TMI 422 - ITAT MUMBAI
Interest, Commissioner (Appeals) ... ... ... ... ..... cerned with a case where the assessee agreed to an addition on grounds of lack of evidence. We are concerned with a case where the assessee conceded that in law interest from debentures could be assessed as interest on loans and advances . This concession is of a legal position which does not bind the assessee. If it later transpires that the concession was given under a mistaken impression of the true legal position, the assessee could file an appeal and challenge the assessment. 7. We, therefore, hold that the appeal before the Commissioner (Appeals) was maintainable. 8. As regards merits, in the judgments of the High Courts and the orders of the Tribunal cited on behalf of the assessee, it has been held that interest on debentures cannot be considered as interest on loans and advances and, therefore, no Interest Tax is chargeable. Respectfully following the judgments and the orders, we delete the debenture interest of Rs. 24,26,974 from the assessment and allow the appeal.
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