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Case Laws
Showing 61 to 80 of 664 Records
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2005 (8) TMI 686
Cash credit - Addition on account of closing stock position in the books of account - Whether the assessee had sufficiently proved that the declaration made to the bank was for the purpose of availing higher cash credit facility and it did not reflect correct position regarding the closing stock - HELD THAT:- We find that in the stock position shown to the Bank the assessee had not disclosed quantity and weight of the stock but had only given particulars of the goods and their value. Whereas the Assessing Authority as well as the Tribunal laboured under the impression that the quantity and weight of the goods declared to the Bank differed with that shown by the assessee in the trading account. It is thus clear that addition has been made neither on the ground that the assessee had more stock on 31-3-1990 nor on the ground that the assessee had any concealed income which had been invested by it in the closing stock but simply on the ground that the closing stock declared in the trading account after physical verification and value thereof differed with the stock position given to the Bank.
While making the addition, the Assessing Authority as well as the Tribunal ignored the important fact that the goods/stock shown in the trading account on 31-3-1990 were as per verification and valued at cost whereas in the declaration made to the Bank the stock was not valued at cost but was on rough estimate. As a matter of fact, no statement of stock as on 31-3-1990 was filed before the Bank. It was only for the period ending up to 15-2-1990. The assessing authority and the Tribunal thus have completely mis-read the document (declaration) furnished by the assessee to the Bank and, therefore, the order of the assessing authority as well as of the Tribunal are not sustainable in law.
Thus, the appeal is allowed and the order dated 14-12-1999 passed by the Income-tax Appellate Tribunal is set aside and that of the Commissioner Income-tax (Appeals), Jammu dated 19-5-1993, is restored.
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2005 (8) TMI 685
Whether the decision of the High Court invoking the extraordinary jurisdiction under Article 226 of the Constitution was incorrect and that the Court should not have interfered with the decision of a private limited company and that the powers under Article 226 cannot be invoked against a private authority who is discharging its functions on the basis of the contract entered into between the employer and the employees. It was contended that the remedy available to the workers was only ordinary civil litigation?
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2005 (8) TMI 684
Whether a review petition cannot be treated as an appeal in disguise?
Whether the respondent had not started commercial production before the date specified in the Government’s policy, it was not entitled to the benefit of the concessional rate of tariff and electricity duty under the said policy?
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2005 (8) TMI 683
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... ... ..... al, therefore, this does not give rise to any substantial question of law. 4. So far as the second issue is concerned, s. 44AF in terms is clear that it applies only to wholesale (sic-retail) trader who is (sic-not) involved in wholesale trade. The Tribunal has come to the conclusion that Revenue has failed to prove that assessee was rightly assessed when he has produced document before the assessing authority that he holds the licence for wholesale trade and, therefore, the presumption has not been rebutted by the Revenue. If it wanted to invoke s. 44AF, burden was on the Revenue to prove that notwithstanding holding license for wholesale trade only, the assessee was in fact doing retail business. Then essentially it remains a finding of fact whether assessee was a retail trader or wholesale trader, and does not give rise to question of law. In view thereof, no substantial question of law does arise for consideration in this appeal. The appeal fails and is hereby dismissed.
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2005 (8) TMI 682
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... ... ..... DR is that rendering photography service, there is no separate sale of chemical on photographic paper. 4. Prima facie learned DR would appear to be correct. There could be no picture without paper. The appellant is directed to deposit the service tax demanded within a period of six weeks from today. Upon deposit of that amount, there will be waiver of pre-deposit of penalty and stay of recovery. Matter to come up for reporting compliance on 3rd October, 2005.
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2005 (8) TMI 681
Whether the High Court although has a wide power in terms of Section 107 of the Code of Civil Procedure but it could not have gone outside the pleadings and make out a new case?
Whether High Court of Himachal Pradesh dismissing the claim for interest @ 12% granted by an earlier order of the Division Bench of the same High Court on equitable consideration for depriving them of their lands without taking proceedings under the Land Acquisition Act and payment of compensation was correct?
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2005 (8) TMI 680
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... ... ..... a view in favour of classifying that item under heading 8405 in the light of note 3 to Chapter 87. That note makes it clear that, for the purpose of headings 8701 to 8705 (tractors to special purpose motor vehicles), building of body or fabrication or fitting of tractors on equipment, shall amount to manufacture of motor vehicle. In the present case, what is being done is the mounting of a material handling equipment on tractors. The note brings the product resulting from such mounting within the classification of 8705. 4. In view of what is stated above, the dispute remains covered in favour of the assessee, by the earlier order of this Tribunal. The duty demand and penalty imposed under the present order, which is contrary to the classification order of the Tribunal, are not sustainable. Accordingly, the impugned order is set aside and the appeals are allowed with consequential relief, if any, to the appellants. (Pronounced and dictated in the open Court on 3-8-2005)
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2005 (8) TMI 679
Whether the Reference Judge acted illegally and without jurisdiction in passing the said judgment solely on the basis of the deposition of one Sendhabhai Vastaram Patel who alleged that the agricultural lands which he and others had been cultivating were of high fertility and three crops in a year were grown therein?
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2005 (8) TMI 678
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... ... ..... ct, on the same set of facts, the registration under the Central Act should be granted with retrospective effect. The case was decided on its own facts and has no application so far as the question of amendment of registration certificate is concerned. The Tribunal lost sight of the facts that this was not the case of amendment of registration certificate, which was already granted. The dealer wanted to add certain items in the registration certificate with retrospective effect. In absence of any statutory provision for amendment of registration certificate with retrospective effect it is not permissible to amend the registration certificate even at the request of a dealer w.e.f. the date anterior to the date of the application. The order of the Tribunal holding otherwise cannot be sustained. 5. In the result, the revision is allowed. The order of the Tribunal is set aside and the second appeal No. 217 of 1999 filed before the Tribunal stands dismissed. No order as to costs.
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2005 (8) TMI 677
Buprenorphine Hydrochloride I.P. Injections - psychotropic substance within the meaning of the NDPS Act Schedule Or "H" Drugs under the Drugs and Cosmetics Act, 1940 - application for grant of bail - HELD THAT:- The expression "any psychotropic substance" obviously has reference to those listed in Schedule I to the NDPS Rules. Rule 64 is the governing rule in Chapter VII of the NDPS Rules. When a psychotropic substance des not find mention in Schedule I to the NDPS Rules, the prohibition qua possession contained in Rule 64 does not apply. That being the case, in respect of such a psychotropic substance, Rule 66 would also not apply as it has reference to only those psychotropic substances which are included in Schedule I to the NDPS Rules. Rule 67 of the NDPS Rules relates to transport of psychotropic substances. It is expressly subject to the provisions of Rule 64 and clearly has reference to the transport, import inter-state or export inter-state of those psychotropic substances which are included in Schedule I to the NDPS Rules. The rule would have no applicability in respect of those psychotropic substances which are not to be found in Schedule I to the NDPS Rule. Clearly, then, inasmuch as Buprenorphine Hydrochloride is not included in Schedule I to the NDPS Rules, its manufacture, possession, sale, transport would neither be prohibited nor regulated by the NDPS Rules and consequently by the NDPS Act. It being Schedule H drug would fall within the rigours of the D and C Act and Rules.
Finally, it must be noted that Buprenorphine Hydrochloride I.P. is also a medication and is used as a pain reliever. Recently it is also being used to treat opiate addiction (such as addiction to heroin). It has legitimate uses as an analgesic and for de-addiction. However, it is also capable of misuse being a psychotropic substance. Perhaps because of this reason, it was left out of Schedule I to the NDPS Act but is very much regulated under the D and C Act and Rules.
Application for grant of bail - The petitioner is aged about 70 years and is said to be suffering from heart problems. It is further contended that he was taking treatment in Iran and is undergoing such treatment now in Tihar Jail. Only 1091 ampoules of Buprenorphine Hydrochlorideare alleged to have been recovered from the petitioner. Therefore, taking the content of each 2ml ampoule (as per the complaint itself) to be 0.6 mg of Buprenorphine Hydrochloride, the recovery from the petitioner is only of 1091 x 0.6 = 658.2 mg or 0.6.82 gm of Buprenorphine Hydrochloride which amount is even smaller than the specified small quantity of 1 gm. Moreover, even if all the ampoules are taken to be recovery from the petitioner they would total to 7235 ampoules of 2 ml. each. That would tranlate to a content of only 4.341 gms of Buprenorphine Hydrochloride and not 14.5 kg as erroneously calculated by the learned Additional Sessions Judge in his order dated 7.8.2004 whereby the petitioner's bail application was rejected. Even this quantity is far below the commercial quantity of 20 gm.
I have already held that Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and therefore, it being a Schedule H drug under the DandC Act and Rules, the offence under section 8 is not made out. Consequently, punishments under section 22, 23, 28 or 29 of the NDPS Act would not be attracted. Furthermore, assuming that an offence under the NDPS Act was, prima facie, made out, the quantity linked to the present petitioner is only 4.341 gm, much lower than the commercial quantity of 20 gm. Accordingly, even in this assumed scenario, the rigours of section 37 of the NDPS Act would not apply.
In view of all these circumstances the petitioner would be entitled to bail. Accordingly, he is directed to be released on bail on furnishing a personal bond in the sum of ₹ 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court.
As indicated, Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and therefore, it being a Schedule H drug under the D and C Act and Rules, the offence under section 8 is not made out. Consequently, punishments u/s 22 or 29 of the NDPS Act would not be attracted. Moreover, the petitioner was only a Customs House Agent who cleared medical consignments on behalf of his clients.
Thus, the petitioner would be entitled to bail. Accordingly, he is directed to be released on bail on furnishing a personal bond in the sum of ₹ 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court.
It is made clear that all observations made in this order, whether common to all the applications or specific to each of the applicants, are only prima facie in nature. They are only for the purposes of consideration of the aforementioned bail applications and are not to be regarded at the time of trial of the respective cases.
All the applications stand disposed of.
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2005 (8) TMI 676
Challenged the findings of Tribunal - claim of lease rentals on the transactions of sale-cum-lease back agreement - Whether the transaction of sale-cum-lease back is genuine or not and whether the lease rent should be allowed or not - HELD THAT:- The admitted facts are that assessee is a Government company and when the Tribunal found the transaction as genuine, this finding of fact in our view is not perverse and when the finding of the Tribunal is not perverse, no question of law does arise for admission of the appeal.
The appeal stands dismissed at admission stage.
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2005 (8) TMI 675
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... ... ..... Respondent No.8 - Maharashtra State Pollution Control Board - to file reply-affidavit within three weeks indicating whether the aforementioned directions have been complied with ? 8. The Airport Authority of India is also directed to file replyaffidavit within three weeks. No further time shall be granted. 9. Mr.Ravi Kadam, the Advocate General, has placed on record a notification dated 19th August, 2005 by which “Mithi River Development and Protection Authority” has been set up under the chairmanship of the Chief Minister and a meeting is scheduled tomorrow. The learned Advocate General is also directed to inform the Court on the next date of hearing what steps have been taken by the High Powered Committee. Let the affidavit in this regard be filed by the concerned Secretary. 10. We would like to place on record our appreciation for preparation of comprehensive action report by the Petitioner on our instance. 11. List this Petition again on 26th September 2005.
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2005 (8) TMI 674
Whether allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant?
Whether for the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer?
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2005 (8) TMI 673
Whether the legal profession is a commercial activity or is it a trade or business?
Whether the legal profession does not involve a commercial activity and, therefore, the rate applicable to commercial consumers was not applicable to respondent No.2-Advocate?
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2005 (8) TMI 672
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... ... ..... fact on which the assessing officer has proceeded to make the assessment, even the fact was not disputed by the assessee that cost price was verifiable for carrying the guesswork. Therefore, in our opinion, the decision of the Tribunal in deleting the additions made by the assessing officer as reduced by the CIT cannot be sustained in law." 8. The principle fully governs the facts of the present case also. The court after considering that no criteria emerges from the order of the assessing officer in adopting different basis for best judgment assessment in the case of country liquor and Indian made foreign liquor and not giving any deductions in the GP, the matter requires reconsideration and remitted the case back to the Tribunal for deciding the appeal afresh in accordance with law. 9. Following the aforesaid decision, we allow this appeal. The judgment of the Tribunal is set aside. The case is remitted back to the Tribunal for deciding afresh in accordance with law.
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2005 (8) TMI 671
Whether the Board having not made itself ready to supply electrical energy to the agriculturists unjustly enriched itself with the money deposited by the complainants without rendering any service in return?
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2005 (8) TMI 670
AAR/612/2003
Whether in terms of contract RS-1 between DMRC and the consortium, the lump sum price for the works of design, manufacture, supply, testing and commissioning of passenger rolling stock of the Mass Rapid Transport System includes element of fee for technical services as defined in article 13(4) of the Treaty between India and Korea? Whether it would not be incorrect to disintegrate the contract for purposes of taxation of each of the component?
Whether the proportion of the lump sum price payable by the DMRC under contract-RS-1-as mentioned against costs centre, ‘G’ and ‘J’ can be regarded as fee for technical services?
Whether Fee for technical services cannot be taxed as business profits under article 7 in view of the fact that the FTS is specifically dealt with in article 13(4) of the Treaty?
AAR/613/2003 on
Whether in terms of contract-RS-1-between the DMRC and the consortium, the lump sum price for the works of design, manufacture, supply, testing and commissioning of passenger rolling stock of the Mass Rapid Transport System includes element of fee for technical services as defined in article 12(4) of the Treaty between India and Japan. Whether it would not be incorrect to disintegrate the contract for purposes of taxation of each of the component?
Whether the proportion of the lump sum price payable by the DMRC under contract-RS-1-as mentioned against costs centre, ‘G’ and ‘J’ can be regarded as fee for technical services?
Whether Fee for technical services cannot be taxed as business profits under article 7 in view of the fact that the FTS is specifically dealt with in article 12(4) of the Treaty.
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2005 (8) TMI 669
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... ... ..... of Notification No. 6/2000-C.E. if such doubled yarn in turn was manufactured from single yarn on which duty paid as Dyed yarn in such case can be considered as manufactured out of duty paid yarn in terms of condition 19 of Notification No. 6/2000-C.E. relating to partial exemption on dyed yarn. In the case of Morarjee Gokuldas Spg. & Wvg. Co. Ltd., the Tribunal vide Order No. A/673/WZB/MUM/2005-C-II, dated 4-5-2005 2005 (190) E.L.T. 217 (Tribunal) in the context of Notification No. 14/2002 which is worded similar to the Notification No. 06/2002 held that the benefit of exemption was available to the composite mill in question in similar circumstances. The ratio of the above orders are applicable on all fours to the facts of the present appeals and therefore, following the same, we hold that the benefit of exemption in terms of Notification No. 6/2002-C.E. is admissible to the appellants herein and set aside the impugned orders and allow the appeals. (Dictated in Court)
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2005 (8) TMI 668
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... ... ..... er hand, the Commissioner (Appeals) has accepted the assessee’s stand on the ground that the Circular only clarifies the correct position and cannot be discarded on the ground that the same is effected from the date of issuance. For the above proposition, he has referred to Hon’ble Supreme Court’s decision in the case of Ranadey Micronutrients v. Collector of Central Excise, reported in 1996 (87) E.L.T. 19 (S.C.). 3. Apart from the fact that the circular is binding on the revenue authorities, we also take note of the Hon’ble Supreme Court’s decision in the case of Workwell Engineering Co. v. Collector of Central Excise, Vadodara reported in 2005 (184) E.L.T. 126 (S.C.) that the issuance of the Circular by the Board is a relevant factor to be taken note of while deciding the classification of Domestic Flour Mill. 4. In view of the foregoing, we do not find any merits in the revenue’s appeal and reject the same. (Dictated in Court)
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2005 (8) TMI 667
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... ... ..... nan, JJ. ORDER Appeal dismissed.
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