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Showing 221 to 240 of 638 Records
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2010 (6) TMI 684 - CESTAT MUMBAI
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... ... ..... the appellant has involved in this case with prior knowledge. Hence, the penalties also liable to be confirmed. 5. Heard both sides. 6. In this case, I find that the appellant has imported Mobile Phones with brand name NOKIA Model E-51 to Chinese origin but on examination it was found that it is not of Chinese origin but it was made in Finland. Moreover, these mobile phones were found in loose packing. On inquiry being made to the Nokia, their representative after examining the IMEI number found that these IMEI numbers were never issued to by M/s. Nokia Ltd. The department has proceeded on the basis of the said report. Hence, I do not find any infirmity in the impugned order, same is upheld. With regard to the penalty, I find that the penalty of Rs. 3,50,000/- is on higher side and as the goods have been absolutely confiscated which are to be destroyed. I reduce the penalty to Rs. 70,000/- (Rupees seventy thousand only). 7. With these observations, the appeal is disposed of.
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2010 (6) TMI 683 - CESTAT NEW DELHI
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... ... ..... the manufacturer who actually manufactured and cleared the goods is being permitted to be taken as credit. The condition is that after the goods are subjected to processes envisaged under Rule 16, they should be cleared on payment of duty. Prima facie, the ground on which the Commissioner (Appeals) has rejected the appeal do not hold good. Rule 11 of the Central Excise Rules, 2002 has no application to goods returned under Rule 16. The documents on record indicate invoices issued for depot on transfer basis on which the respective manufacturing units have paid the duty. The applicant have duly intimated the arrival of goods for the purpose mentioned under Rule 16 and also submitted the original duty paying documents of the manufacturing units. 6. In view of the above, I hold that the applicant has made out a case for total waiver of dues as per the impugned order and, accordingly, I order waiver of pre-deposit of the dues and stay recovery thereof till disposal of the appeal.
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2010 (6) TMI 682 - CESTAT MUMBAI
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... ... ..... ce, Modvat provisions were not in existence in the statute book having been substituted. There is no saving clause contained in the Notification cited hereinabove when it substituted Modvat provisions with Cenvat provisions. On these facts it was held that show cause notice is not sustainable. In this case also, the period involved is 1-3-1999 to 28-2-2000 and the show cause notice was issued on 15-7-2002 which is much after the Notification No. 27/2000 dated 31-3-2000. Substituting Modvat provisions with Cenvat provisions as on the date of issuance of the show cause notice Modvat provisions were not in existence of statute book having been substituted. Hence, in this case also the show cause notice is not sustainable. Without going into the merit of the case, I find that the appeal can be allowed on this count only. Accordingly, without considering the other issues, the impugned order is set aside, the appeal is allowed with consequential relief if any. (Pronounced in court)
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2010 (6) TMI 681 - CESTAT NEW DELHI
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... ... ..... This defect is curable since similar defects have been permitted to be cured and appeal allowed to be decided by the Tribunal afresh by the Hon rsquo ble High Court of Karnataka in the case of CCE, Bangalore-II v. ITC Ltd. cited supra. For this purpose, at the request of the learned SDR, 6 weeks time is granted from today. 8. As regards the submission of learned Advocate for the respondents that two appeals are required to be filed, he has not cited any authority for the same. In fact, he fairly conceded that the CESTAT Procedure Rules are silent on the issue. Under these circumstances, the appellant Department finding the appeal citing Super Cassettes Industries Ltd. and Shri D. Dasgupta, Vice President as respondents appears to be in order. However, at this juncture, learned Advocate stated that no notice has been sent to Shri D. Dasgupata, Vice President. 9. Registry is directed to issue notice to Shri Dasgupta, the other respondent. (The matter is adjourned to 27-7-2010)
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2010 (6) TMI 680 - GUWAHATI HIGH COURT
Impugned actions of getting transferred diverse sums of money from the Escrow Accounts of the writ petitioners towards recovery of alleged dues of excise duty and additional duty of excise
Held that:- For the purpose of making the withdrawal applications, the periods, during which the Escrow Accounts had remained frozen as well as the periods, during which diverse sums of money had stood appropriated by forfeiture of the amounts, shall be kept excluded
Coming to the question of the hotel project, it needs to be noted that by way of an interim order, dated 30-9-2008, the Court had allowed the petitioners-applicants to proceed with the construction of the hotel subject to the outcome of the writ petition and since this Court has already held that the petitioners-applicants’ hotel project stood approved, on principle, by the IAC, and when the petitioners’ hotel project satisfies the conditions of investment on infrastructure, it becomes clear that the respondents are, now, required to pass appropriate order(s), in this regard, so as to enable the petitioners-applicants receive the benefit of the findings of this Court and the directions given in this regard.
The directions, contained above, it may be noted, having not been consciously denied, though the petitioners-applicants were entitled to, ought to have been given and it is this error, which was apparent on the face of the record and which has, now, been corrected. Such directions, one must reiterate, shall be made available to the petitioners-applicants so that they can enjoy the fruits of the directions already passed, in their favour, in their writ petitions
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2010 (6) TMI 679 - KERALA HIGH COURT
Whether the order withholding gratuity is illegal and no dues other than Government dues are recoverable from gratuity or commuted value of pension in terms of the provisions of the CCS (Pension) Rules, 1972 read with the Government of India orders issued thereunder and that no gratuity or commuted value of pension is liable for attachment in terms of the provisions of the Code of Civil procedure?
Held that:- The Tribunal did not have the jurisdiction to sit in judgment on the correctness or otherwise of the orders of attachments/prohibitory orders issued under the CPC or the RR Act. Therefore, the Tribunal acted wholly without jurisdiction in essentially interfering with those attachment orders/prohibitory orders by directing the establishment to release the amounts to the respondent.
We are also surprised at the procedure adopted by the Tribunal in having sat in judgment on the entitlement of the different creditors in different civil suits and RR proceedings, including KSFE and a District Co-operative Bank in a proceeding in which they were not even parties. Even if they were made parties, the Tribunal did not have jurisdiction to adjudicate on any issue arising between those parties and the officer under the terms of the contracts between them. Thus no ground to sustain the impugned order of the Tribunal. WP allowed.
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2010 (6) TMI 678 - CENTRAL INFORMATION COMMISSION
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... ... ..... a citizen rsquo s demand for information. The organisation owes an explanation to the citizen as to why its internal functioning is so flawed, rather than to resort to vague plea about workload and insufficiency of staff to fend off disclosure queries. 19. It is surprising that the Tribunal has not drawn its lessons even after the orders of Delhi and Chennai High Courts. 20. In view of the above, I do not see any reason to either review or reconsider my decision dated 26-3-2010. 21. The deemed-CPIO and Assistant Registrar, Shri Kulvinder Singh is directed that the information so far not disclosed to the appellant pursuant to Commission rsquo s order dated 26-3-2010 shall now be disclosed as earlier ordered. 22. In case the respondents need little longer time than already ordered, to provide the information to the appellant, they may approach this Commission within a week with a suitable request. 23. Review-petition rejected. 24. Copy of this direction be sent to the parties.
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2010 (6) TMI 677 - KERALA HIGH COURT
Whether a "composite notice" is enough to complete the escaped assessment of turnover under section 25(1) of the Kerala Value Added Tax Act, 2003 inviting objections, if any, and also mentioning about the "right to be heard" so as to satisfy the requirement under the "first proviso" to the said provision, is the point of dispute.
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2010 (6) TMI 676 - ITAT DELHI
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... ... ..... High Court against the order of the Tribunal. The learned Departmental representative was unable to controvert the contention of learned counsel for the assessee. On due consideration of the facts and circumstances, we find that the assessee has placed on record the computation of tax effect by virtue of the learned Commissioner of Income-tax (Appeals) s order at page 52 of the paper book. The tax effect computed by the assessee by virtue of this learned Commissioner of Income-tax (Appeals) s order is Rs. 1,65,681. It is below the monetary limit for challenging the order of the learned Commissioner of Income-tax (Appeals) before the Tribunal. Therefore the appeal of the Revenue is not maintainable. Since the appeal of the Revenue is not maintainable and dismissed in limine, consequently the cross-objection was not pressed by learned counsel for the assessee. In the result appeal as well as cross-objection are dismissed. The order pronounced in the open court on June 1, 2010.
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2010 (6) TMI 675 - ITAT DELHI
Addition made on account of surrender on account of renovation of showroom and cash - AO solely relied on the statement recorded on the date of survey in the night, which was retracted by the assessee - CIT(A) deleted addition - HELD THAT:- As assessee has retracted and for which letter was duly filed with the competent authority, the amount of surrender was also not offered in the return of income. It was upon the AO to find out the actual cost of the building and renovation to substantiate the statement given by the assessee wherein surrender was made. The statement so recorded by the survey team was also alleged to be under influence, coercion and under a confused state of mind.
In the letter of retraction the factual position was stated assessee to the effect that her husband, an acute diabetic patient, was made to sit in the shop by the visiting officials for long hours and was feeling very much disturbed/depressed, when she was called in the night and asked to sign the statement of surrender, she had no other choice except to sign the statement recorded by the visiting officials.
In the facts and circumstances, there may not be any evidence of coercion or undue influence being exercised by the Departmental officers, but the existence of duress/disturbed state of mind at such a crucial moment cannot be ruled out.
It is an undisputed fact that no documents or papers were found during the course of survey indicating any expenditure having been incurred by the assessee for renovation of the showroom or any cash of the assessee being left at the showroom of M/s. Vishal Jewellers, from where M/s. Vishal Gold and Precious Stones Pvt. Ltd. was carrying on its business.
The High Court in the case of Krishan Lal Shiv Chand Rai v. CIT [1972 (12) TMI 6 - PUNJAB AND HARYANA HIGH COURT] observed that "it is an established principle of law that a party is entitled to show and prove that an admission made by him previously is in fact not correct and true. Such admission raises a presumption against the person making the admission but such presumption is rebuttable."
We found that categorical finding was recorded by the CIT (A) to the effect that no material was brought on record by the AO to substantiate that any expenditure on renovation was incurred by the assessee during the AY 2005-06, nor the AO has made any reference to the Departmental Valuation Officer to find out the correct state of affairs, and it was merely on the basis of statement given by Smt. Usha Rani Talla in a disturbed state of mind, which cannot be made the basis for making the addition.
Therefore, we do not find any infirmity in the order of the CIT(A) for deleting the additions made merely on the basis of statement, without bringing on record any material much less a cogent material. In the result, the appeal of the Revenue is dismissed.
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2010 (6) TMI 674 - ITAT BANGALORE
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... ... ..... te of 5 per cent. has been determined by the Commissioner of Income-tax (Appeals) in the light of the law stated in section 44AF where the law provides for summary assessment at 5 per cent. net profit in respect of retail trade. It is a well accepted principle that in respect of grocery trade, the rate of net profit is less in wholesale trade when compared to retail trade. The assessee is carrying on wholesale trade. Therefore, we find that rate of net profit adopted by the Commissioner (Appeals) at 5 per cent. is on the higher side. To be fair and reasonable, we modify the net profit rate to 3 per cent. Since the income has been determined on a net profit ratio basis, no further deduction can be given on account of expenses. Therefore, the Commissioner of Income-tax (Appeals) has rightly disallowed the claim of sales tax payments. In result, these two appeals filed by the assessee are partly allowed. The order pronounced on Wednesday, the 9th day of June, 2010, at Bangalore.
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2010 (6) TMI 673 - ITAT BANGALORE
Agriculture Income - Computation of total income - production and sale of hybrid seeds - HELD THAT:- Operations carried out by the assessee in the previous year relevant to the assessment year in appeal, we find that the production of basic seeds as well as hybrid seeds are the results of basic agricultural operations carried on by the assessee-company in its own land as well as in leasehold land. The method of contract farming does not take away the character of the basic operations carried out by the assessee-company which are agricultural in nature. The assessee-company procures germplasm and sows it in its own fields, and carries on all agricultural operations and produces the basic seeds. The basic seeds so harvested are again put through agricultural operations intimately connected with leasehold land for finally bringing out the hybrid seeds. Only for the reason that the basic seeds are sown in leasehold land and the manpower required is arranged through contract farming, it does not mean that the operations carried out by the assessee-company are not agricultural operations. As a matter of fact, it is to be seen that the assessee-company has carried out basic as well as secondary agricultural operations. Therefore, without any fear of contradiction, it is possible for us to hold that such entire income of the assessee is agricultural in nature which is to be excluded from the nature of total income. The assessee is successful in its appeal.
Exemption of income - HELD THAT:- The reasons pointed out by the assessing authority to deny the claim of exemption made by the assessee-company are that the assessee is following international technology, marketing expertise, integrated scientific and commercial activity, etc. These are all matters strange to the strict code of income-tax. Those premises do not have any role in deciding the nature of income within the framework of the Income-tax Act, 1961. The reasons pointed out by the AO are by and large issues to be decided by the policy makers in the Government.
In result, appeal filed by the assessee is allowed.
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2010 (6) TMI 672 - ITAT AHMEDABAD
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... ... ..... re is no foundation for making the above additions against the assessee. In the absence of any factual foundation in favour of the Revenue, we do not find it to be a fit case for sustaining the additions in the hands of the assessee. We accordingly set aside the orders of the authorities below and delete both the additions. As a result, ground Nos. 1 and 2 of the appeal of the assessee are allowed . Considering the above facts and the decisions relied upon by learned counsel for the assessee, we are of the view that the issue is covered in favour of the assessee and against the Revenue by the orders of the Incometax Appellate Tribunal, Ahmedabad Bench (supra). We accordingly, do not find any infirmity in the order of the learned Commissioner of Income-tax (Appeals). We confirm the same and dismiss the appeal of the Revenue. As a result, the Departmental appeal and the cross-objection of the assessee, both are dismissed. The order pronounced in the open court on June 11, 2010.
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2010 (6) TMI 671 - ITAT DELHI
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... ... ..... nts in a letter issued to the Income-tax Department and that issued to the assessee. Hence, with the same direction as for the assessment year 2005-06, we remit the matter to the files of the Assessing Officer. Hence, the matter stands restored to the files of the Assessing Officer for getting clarification from higher authorities of the LIC with regard to correct status of the keyman policy on the occasion of assignment and consequential treatment of taxability in the hands of the assessee, and to decide the issue afresh as per the terms and conditions applicable to the keyman insurance policy on assignment to the keyman. After the Assessing Officer comes to the conclusion that the keyman policy is converted into an ordinary policy, then he should follow the observation of co-ordinate Bench as in the earlier assessment years. In the result, the appeal filed by the assessee is treated as allowed for statistical purposes. The order pronounced in the open court on June 4, 2010.
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2010 (6) TMI 670 - ITAT BANGALORE
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... ... ..... er was right in paying court fee of Rs. 500. Even though the case was considered in a different context, the court has analysed the scheme of section 253(6) and has held that it is that figure of the assessed income that determines the quantum of fee payable. Therefore, in the facts and circumstances of the case, we hold that the assessee is liable to pay a filing fee of Rs. 10,000 in respect of the appeal filed by it. The assessee has already remitted Rs. 500. Thus there is a deficiency of Rs. 9,500. The registry is justified in issuing the defect memo. The assessee is directed to pay the balance filing fee of Rs. 9,500 and produce the original challan in the registry on which condition the appeal and the cross-objection will be admitted by the Tribunal. Otherwise the appeal would be liable to be dismissed as non-maintainable. The appeal and the cross-objection are posted for hearing on July 14, 2010. Notice waived. The order pronounced on Friday, the 25th day of June, 2010.
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2010 (6) TMI 669 - CESTAT BANGALORE
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... ... ..... he Finance Act which is up to five years, and not beyond five years if there is allegation of suppression of facts, mis-statement, etc. At this juncture, we find, there is allegation of suppression of facts, mis-statement, etc. Hence, the demand that arises within five years needs to be gone into detail and that can be done at the time of final disposal of the appeal. We are of the considered view that the appellant has not made out a case of complete waiver of the amounts adjudged and upheld by the Commissioner (Appeals). In view of this, we direct the appellant to deposit an amount of Rs. 2,00,000/- (Rupees Two lakhs only) within a period of eight weeks from today and report compliance on 16th August 2010 before the Assistant Registrar of this Bench. Subject to such compliance being reported, the application for waiver of pre-deposit of the balance amount involved is allowed and recovery thereof stayed till the disposal of the appeal. (Pronounced and dictated in the court)
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2010 (6) TMI 668 - GUJARAT HIGH COURT
Whether Tribunal was justified in granting relief u/s. 80HHC on the issue of gain on forward currency contract without appreciating the fact that the gain on exchange difference is nothing but speculation profit and not related to the business of the assessee ? - Whether Tribunal was justified in directing AO not to exclude this income from the profits eligible for deduction U/s. 80HHC without appreciating that when the assessee enters into a forward contract assessee stands to benefit by the fluctuations in foreign exchange irrespective of the fact whether the trade agreement exists or not ? - Held that:- Tribunal after appreciating the evidence on record and the submissions advanced on behalf of the respective parties, has given sufficient, cogent and convincing reasons for holding that the the transaction in question was not a speculative transaction and that the foreign exchange contract was entered into by the assessee only with a view to realize the amount due on sale of goods. In the circumstances, no infirmity is found in the reasoning adopted by the Tribunal in holding that the gain on forward currency contract is related to the business of the assessee. In the circumstances, no question of law can be stated to arise qua the said ground.
Whether the Appellate Tribunal was justified in granting relief to assessee without appreciating the fact that the provisions/liability written off and shown as income of the year was not earned during the year and was duly considered while working out the deduction U/s.80HHC in the relevant A.Y. in which such expenditure/creditors existed ? - Held that:- Commissioner (Appeals) found that writing back of provisions/liability for expenses payable was merely a reversal of liabilities created in the previous year as a result of which manufacturing profit of the previous year got reduced. Accordingly, it should also be treated as part of manufacturing profits eligible for deduction under section 80HHC. The Tribunal upon appreciating the evidence on record has concurred with the findings recorded by Commissioner (Appeals). Thus, in light of the concurrent findings of fact recorded by Commissioner (Appeals) and the Tribunal, no question of law can be stated to arise, as proposed or otherwise, in relation to the said ground.
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2010 (6) TMI 667 - COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX (APPEALS), GOA
Levy of service tax - stand fees - The Stand fees are a statutory levy of the local State Government - Collection of stand fee is not for any specific service rendered by them, but is a flat rate of charge to one category of buses namely, private bus operators, it cannot be said that the amount so collected is by way of service charge - whether the stand fees is classified under Business Support services or otherwise and is taxable or otherwise? - Held that: - The stand fees are for enhancing the revenue of the KTC to cope up with the stand maintenance expenditures. Service tax can be demanded only when KTC collects service charge for “any of the services rendered” by them - Collection of stand fee is not for any specific service rendered by them, but is a flat rate of charge to one category of business namely, private bus operators, it cannot be said that the amount so collected is by way of service charge. Therefore, no service tax is payable for the stand fees collected by the appellant.
Revision allowed - decided in favor of assessee.
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2010 (6) TMI 666 - COMPANY LAW BOARD, KOLKATA BENCH
Meetings and proceedings - Power of Company Law Board to order meeting to be called ... ... ... ... ..... ng not available for holding extraordinary general meeting, the reasons, i.e., the other shareholder rsquo s whereabouts not being known, the second respondent having fraudulently appointed two of her men as directors without notice to the petitioner, being shown by the petitioner for the order of calling extraordinary general meeting, the same being led to impracticability for holding the extraordinary general meeting, this Bench, in the larger interest of the company, is of the view that the petitioner is entitled to a direction for calling extraordinary general meeting though quorum not being there, because in a situation like this, even one member is competent to call extraordinary general meeting when the company is comprised of only two shareholders. 11. Therefore, this Bench, for the reasons aforementioned, allowed this petition directing the petitioner to call, hold and conduct extraordinary general meeting of the company within four weeks after receipt of this order.
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2010 (6) TMI 665 - KERALA HIGH COURT
Winding up - Powers of liquidator - Official Liquidator had invited tenders for sale of properties of company-in-liquidation
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