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Showing 101 to 120 of 520 Records
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2004 (5) TMI 524 - ITAT CHANDIGARH
Minimum alternate tax ... ... ... ... ..... t the issue is squarely covered by the decision in the case of Apollo Tyres Ltd. (supra), wherein it was held that while determining the book profits under section 115JA, the Assessing Officer has to accept the authenticity of accounts with reference to the provisions of the Companies Act. Therefore, the Assessing Officer was not justified in allowing depreciation of Rs. 10,65,660 instead of Rs. 17,64,262 as claimed with reference to the provisions of the Companies Act. We, therefore, respectfully following the decision in the case of Apollo Tyres Ltd. (supra) decide the issue in favour of the assessee and against the revenue. Accordingly, we set aside the order of the CIT(A) and accept the ground in this respect. 4. The last effective grounds relate to the chargeability of interest under section 234B. Since we have decided the above issue in favour of the assessee, this ground being consequential we hold and direct accordingly. 5. In the result, the appeal is partly allowed.
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2004 (5) TMI 523 - CESTAT, MUMBAI
SSI Exemption ... ... ... ... ..... , we find that the learned JDR strongly advocates adoption of the Larger Bench decision of the C.C.E., Coimbatore v. Marutham Textiles (P) Ltd. (supra). We also find that the learned advocates for the appellants have no objection to following the said decision of the Larger Bench so long as the observation of the said Bench in para 13 thereof is followed, as according to them it would have the same effect as that of the majority order in the case of C.C.E., Surat (supra). Accordingly, we set aside the impugned orders passed by the lower authorities and remand the matter to the Original Authorities below for re-determining the duty liabilities in terms of the decision of the Larger Bench of the Tribunal in the case of C.C.E., Coimbatore v. Marutham Textiles (P) Ltd. and Others - 2003 (55) RLT 382 (CEGAT-LB), after allowing adjustments of duty as provided in para 13 of the said decision. 5. emsp Appeals are allowed by remand in the above terms. (Pronounced in Court on 7-5-2004)
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2004 (5) TMI 522 - ITAT MUMBAI
Income, Capital gains ... ... ... ... ..... Rs. 2,51,250 into the computation of taxable income. 5. But at the same time we do not agree with the argument of the learned Counsel that the entire amount being capital in nature should be left out of the taxation. Even though the amount was received in the nature of damages, the amount so received was part and parcel of the sale of the immovable property. The receipt of the damages cannot be disassociated with the sale of the immovable property. Therefore the damages of Rs. 2,51,250 need to be considered as part of the consideration for sale of the immovable properties. That being the case the amount of Rs. 2,51,250 is liable for levy of long-term capital gain tax. 6. Therefore the Assessing Officer is directed to exclude the amount of Rs. 2,51,250 from the revenue account and bring it under the long-term capital gain tax after giving the assessee the benefit of indexation and also that of special rate of tax. 7. In result this appeal is partly allowed. Order accordingly.
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2004 (5) TMI 521 - ITAT DELHI
... ...
... ... ..... red inadvertently by the assessee rsquo s advocate, Shri H.K. Jain, who forgot to file the return of income in spite of having received audit report under section 44AB in time. He has relied upon the affidavit of Shri H.K. Jain, advocate. The ld. Commissioner of Income-tax (Appeals) has not believed the affidavit of Shri H.K. Jain on the grounds of improbability. It is, however, not his case that the statement of Shri H.K. Jain was impossible. Neither the Assessing Officer nor the ld. CIT (Appeals) have examined Shri H.K. Jain, who has filed the affidavit on oath. The assessee rsquo s explanation has been rejected mainly by disbelieving. In our view the affidavit of an advocate should not have been disbelieved in this manner. On the basis of the facts stated by the advocate, it is seen that default occurred on account of no fault on the part of the assessee. We, therefore, cancel this penalty and allow the appeal filed by the assessee. 3. In the result, the appeal is allowed.
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2004 (5) TMI 520 - ITAT CHANDIGARH
Unexplained investments, Assessment - Additions to income ... ... ... ... ..... efore, considering the totality of the facts available on record, are of the view that the addition made by the Assessing Officer was based on surmises and conjectures and without bringing the material on record. Therefore, we do not see any infirmity in the order of Ld. CIT(A) on this issue. 15. As regards to the cross-objection raised by the assessee, it is noticed that there was a delay in filing the C.O. by 39 days and the assessee had not given any explanation with regard to the delay of 39 days. However, during the course of hearing, Ld. counsel for the assessee requested for withdrawal of the C.O. and also gave written submissions which read as under We have to submit that I wish to withdraw the cross-objection as filed by me and for which the permission may, please be granted and oblige. 16. In that view of the matter, we treat the Cross-objection as withdrawn. 17. In the result, appeal filed by the revenue and the Cross-objection filed by the assessee, are dismissed.
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2004 (5) TMI 519 - ITAT DELHI
Block assessment in search cases ... ... ... ... ..... income of the block period. The action and conclusion of the Assessing Officer is, therefore, upheld and the addition of Rs. 55 lakhs is directed to be sustained. As a result, the assessee rsquo s ground on that count stands rejected. 29. In the result, the appeal of the assessee stands partly allowed. REFERENCE UNDER SECTION 255(4) OF THE INCOME-TAX ACT, 1961 TO THE HON rsquo BLE PRESIDENT ON POINT OF DIFFERENCE Since there is a difference of opinion between the Members of the Bench, we state the following point of difference and refer the same to the Hon rsquo ble President for further necessary action as envisaged under section 255(4) Whether on the facts and in the circumstances of the present case, the amount of Rs. 55 lakhs credited in the account of Concept International in the regular books of account maintained by assessee, can be assessed as undisclosed income for the purpose of Chapter XIV-B while completing assessment under section 158BC/254 of the Act, or not ?
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2004 (5) TMI 518 - ITAT DELHI
Exemption - Remuneration to foreign technician ... ... ... ... ..... ication for Government Approval was made on 25th Oct., 1989. Thereafter assessee rsquo s application was filed for extension on 1st May, 1991. The approval was granted on 19th Aug., 1992. It is, therefore, clear that approval was granted before 1st Oct. of the relevant assessment year and covered both the periods, i.e., initial as well as extended periods. Further, the assessee is entitled to exemption under section 10(6)(viia) by virtue of the Notification No. S.O. 235 of March, 1992 of the Government covering field of information technology. It must be stated that the individual is rendering services as technician in the employment in a business carried on in India by M/s. Cray Research India Ltd. There is, therefore, no reason to gross up his salary. The addition made in this regard is therefore, deleted. The order of Commissioner of Income-tax (Appeals) is confirmed and the appeal of the department is dismissed. 9. In the result, the appeal of the department is dismissed.
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2004 (5) TMI 517 - CESTAT, BANGALORE
SSI Exemption - Brand name - Burden of proof ... ... ... ... ..... circumstance, the citation relied by the SDR does not apply to the facts of the case. In the rulings of the Apex Court cited by the learned SDR, the brand name was admittedly owned by another person, while in the present case, the brand name is owned by the respondents themselves and not owned by any other person. Therefore, the Larger Bench rsquo s decision relied by the learned Counsel in the case of CCE v. Fine Industries applies to the facts of this case. In the CCE v. Fine Industries case, the Tribunal took the view that it was for the Revenue to have established that the brand name belonged to another person, to deny the benefit of notification. As the Commissioner has clearly examined the facts and found that the brand name was not of another person but of the respondents themselves, therefore, the order passed by him is correct in law and it requires to be upheld. There is no merit in the appeal and hence, the same is rejected. (Pronounced in open Court on 14-5-2004)
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2004 (5) TMI 516 - CESTAT, NEW DELHI
Adjudication - Show cause notice - Scope of ... ... ... ... ..... try, dated 31-1-1991 credit is not available. But this ground on the face of it is not tenable as the Revenue cannot be permitted to travel beyond the allegations in the SCN. It was initially for the Revenue to prove that credit had been availed by the appellants on the Bill of Entry dt. 31-1-1992, specially when the appellants had denied this fact. When the appellants had given the correct date and number of Bill of Entry, the Revenue cannot be allowed to again say and avert that on this correct Bill of Entry, credit is not available. The credit on the Bill of Entry dt. 31-1-1991 detailed above, has been rightly availed by the appellants in accordance with law. Since no credit on Bill of Entry dt. 31-1-1992 had been taken by the appellants, the question of reversal or recovery of the same, from them, does not arise. 3. emsp In the light of the discussions made above, the impugned order is set aside and appeal of the appellants is allowed with consequential relief as per law.
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2004 (5) TMI 515 - CESTAT, MUMBAI
Re-export request - EXIM - Exporter ... ... ... ... ..... to re-export the goods and/or permit their clearance for home consumption to M/s. Bagwe Udyog Ltd. (respondents). In the grounds of appeal, it has been mentioned that, the supplier M/s. Donald Mcarthy is an intermediate supplier and M/s. Mannesmann Hgandel were involved in frauds in some other cases. Hence, the order passed by the Commissioner is erroneous and bad in law. 2. emsp We have heard the JDR. None is present on behalf of the respondents. 3. emsp We note that, the Commissioner is categoric in his findings in so far as the import consignment is concerned, that there is no evidence of violation of any law governing the said import. Against this categoric finding, the Revenue appeal merely mentions about the past conduct of the exporter, without spelling out, as what is the precise violation that has occurred in respect of the import in question. 4. emsp Accordingly, we are unable to find any merits in the appeal filed by the Revenue, and therefore the same is rejected.
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2004 (5) TMI 514 - CESTAT, MUMBAI
Manufacture ... ... ... ... ..... uo to the endless belt. The revenue was of the view that fixing of cleat to the endless belt is an activity of manufacture of endless belts under chapter heading No. 4010.90. In the ground of appeal it has been pleaded that in terms of instructions issued by the Board vide their Circular No. 99/6/87-CX-3 dated 9-3-87, the process of joining the ends to obtain endless belts would constitute ldquo manufacture rdquo under the Central Excise Law, inasmuch as, endless belts are covered under the Central Excise tariff Heading No. 4010. 3. emsp Heard the DR. Respondents have sought adjournment. 4. emsp We note that the issue is not that of a manufacture of endless belts, but is that of fixing ldquo cleat rdquo to the endless belts, which are purchased from the open market. There is no provision under the Central Excise Law to hold that fixing of cleats to endless belts would constitute a process of manufacture. Consequently, the revenue rsquo s appeal fails and the same is rejected.
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2004 (5) TMI 513 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Review of clearance - Penalty ... ... ... ... ..... prima facie prohibited goods. 6. emsp In view of the above discussion we hold that a strong prima facie case for waiver has not been made out by the importers. Taking into account the plea of financial hardship as evidenced by the order of the BIFR and AAIFR and the balance sheet for the year ending 31-3-2003 we direct pre-deposit of Rs. 3 lakhs towards the penalty by Applicant No. 1 within a period of eight weeks from today and on such deposit pre-deposit of balance penalty shall stand waived and recovery thereof stayed pending the appeal and compliance to be reported on 26th July, 2004. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice. 7. emsp We waive pre-deposit of the penalty imposed on the other two applicants as prima facie the order does not disclose what part they played in the import of stainless steel drums in the guise of packing material in order to circumvent restrictions imposed on their import.
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2004 (5) TMI 512 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... import. The appellants paid duty in respect of the repair charges. These factual aspects are not denied by the Revenue. The only denial for the credit is that the invoice under which the goods were originally entered in the factory was not a valid duty paying documents for taking the credit as afresh after goods were received second time in the factory after repair. As per the provisions of Rule 57-S(7) of the Central Excise Rules, the capital goods can be removed for repair or re-conditioning only after giving intimation after obtaining acknowledgement. The appellants gave intimation for removal of the goods for repair which was duly received by the Revenue authority. The appellants also reversed the credit which was not required as per the provisions of Rule 57-S(7) as the goods were removed after due intimation and after receipt of the dated acknowledgement. Therefore, the denial of credit is not sustainable, hence the impugned order is set aside and the appeal is allowed.
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2004 (5) TMI 511 - CESTAT, NEW DELHI
Classifiaction ... ... ... ... ..... of this Tribunal in Oil India Ltd. The deptt. went in appeal before Supreme Court. The Hon rsquo ble Supreme Court decided the matter in favour of the assessee and the said order of the Supreme Court has been accepted by the Board of Central Excise, Customs. Even though we are not able to envisage a situation where the Board is empowered not to accept a decision of the Supreme Court, we are referring to the above sentence only to show that the fact of the issue being settled was in the knowledge of the department. We find no justifiable reason given by the Commissioner in the present case for not following the ratio of the decision in Oil India Ltd. The reluctance or refusal on the part of the officers to follow the settled legal position will lead to harassment of assessees and burdening this Tribunal with appeals which could have been avoided. 5. emsp In the result, we set aside the order impugned and allow the appeal. A copy of the order will be sent to the Chairman, CBEC.
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2004 (5) TMI 510 - CESTAT, NEW DELHI
Export of cement under bond - Proof of export ... ... ... ... ..... d 22-9-1994 permits export of all excisable goods outside India except Nepal and Bhutan without payment of duty subject to the condition that the goods shall be exported within 6 months from the date on which these were cleared for export from the factory of manufacture or warehouse or within such extended period as the Collector of Central Excise may in any particular case allow. It has not been disputed by the Revenue that the Collector of Central Excise has allowed the extension of the period for the purpose of exporting the goods by the Respondents. On query from the Bench the learned SDR has also fairly mentioned that in respect of all cases of export involving in the present proceeding the proof of export has been produced by the Respondents. In view of these facts and circumstances, particularly the fact that the Collector of Central Excise had extended the time limit specified in the Notification we find no merit in the appeal filed by the Revenue and reject the same.
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2004 (5) TMI 509 - CESTAT, MUMBAI
Custom House Agents’ licence - Suspension of - Immediate action ... ... ... ... ..... diate and in the case of Rajinder Kumar Goyal v. Collector of Customs 1995 (79) E.L.T. 54 (Del.) . The Hon rsquo ble Court has not upheld, a licence suspension after 1 frac12 years of alleged illegality and found proceedings without jurisdiction and order suspending the licence was set aside. Nothing contrary has been shown to us. Therefore we would, also, respectfully following these decisions, set aside the suspension of the licence in this case. 4. emsp Before parting with this appeal we would like to observe that revocation of the suspension will in no manner prohibit Ld. Commissioner from initiating and taking further actions as prescribed under the Custom House Agent Licensing Regulations, 2004 nor this order be available as a defence as regards the merits of the allegations in this case. We also would direct Commissioner for an expeditious decision in this connection and finalize the further proceedings, as provided under law. 5. emsp Appeal allowed suspension revoked.
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2004 (5) TMI 508 - CESTAT, MUMBAI
Proforma credit ... ... ... ... ..... /86-C.E., dated 10-2-86 which provides that ldquo Notwithstanding anything contained elsewhere in this Rule ......... the credit of duty paid on any material ....... shall be allowed if the credit of duty was allowable in respect of such material......under this rule or under a notification issued under Rule 8 of these rules requiring the procedure set out in Schedule to be followed, immediately before the commencement of the CETA, 1985. rdquo The Commissioned (Appeals) held that in view of this amendment manufacturers availing benefit of Notification 95/83 (Proforma credit) were allowed to switch over automatically to Rule 56A which continued by virtue of sub-rule (8) of Rule 56A. 2. emsp On hearing the ld. SDR and perusing the records and the relevant Rules, we find that there is no ground to interfere with the order of the lower Appellate Authority who has correctly extended the credit in terms of Rule 56A(8) and accordingly uphold the impugned order and reject the appeal.
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2004 (5) TMI 507 - CESTAT, BANGALORE
Exemption - Denial of - Natural justice ... ... ... ... ..... ates which have covered the consignments of import in dispute. The adjudication order should clearly identify the imports with corresponding bills of entry and utilisation certificate which is not being accepted by the adjudicating authority with proper reasons for non-acceptance of such certificate. 17. emsp From the above discussions, we find that there is violation of principles of natural justice as the Commissioner instead of calling the information regarding details of alleged sales of footwear soles to various customers has asked the appellants to furnish it to DRI for verification. We therefore set aside the order of the Commissioner and remand the case back to him for re-adjudication within six months from the date of receipt of this order, after giving proper opportunity to the appellants to present their case and give proper findings on all the allegations made in the show cause notice in accordance with the law. 18. emsp These appeals are allowed by way of remand.
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2004 (5) TMI 506 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... nal ruled against the availability of such a flexibility. However, the ld. Counsel has pointed out that in the later judgment, in the case of MRF Ltd., (supra), the Gontermann Peipers (I) Ltd., case has been distinguished and based on the Board rsquo s Circular No. 751/67/2003-CX., dated 30-9-2003, the flexibility in the manner of utilisation of credit of additional duty for payment of Cenvat duty (basic) has also been permitted. 8. emsp Considering the liberal approach communicated through the various circulars as discussed above, I hold that, despite the specific restriction imposed, requiring utilisation of credit of basic duty towards payment of basic duty only, the instant appeal has to be allowed, as denial of such a facility to the appellants would amount to discrimination against the appellants, vis-a-vis these assessees who are permitted to avail such flexibility. 9. emsp In the light of the above discussion, the appeal is allowed and the impugned order is set aside.
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2004 (5) TMI 505 - CESTAT, NEW DELHI
Seizure - Provisional release ... ... ... ... ..... the Appellants on provisional basis or not. We observe that the goods were seized in the month of November, 2003 and 6 months are going to expire since the seizure of the goods by the Customs. It has been contended by the Appellants that these goods are meant for export and their foreign customer is pressing hard for the supply of the goods and is threatening to file suit for damages. After considering the submission of both the sides we are of the view that the Revenue has not made out a case that release of goods on provisional basis will hamper investigation. The Revenue is at liberty to retain the samples of the goods. The goods are, therefore, to be released provisionally to the Appellants on their execution of bond for full amount of the goods and submission of a bank guarantee for Rs. 20 lakhs. The Department is authorised to draw the sample of the impugned goods to be used further in the investigation and conduct of the case. The appeal is disposed of in these terms.
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