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Showing 41 to 60 of 632 Records
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2006 (1) TMI 633 - CESTAT NEW DELHI
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... ... ..... yment of service tax was due to changeover of staff looking after; this work. However, from their own statements, it is clear that Shri Gajendra Singh joined on 11-5-02 and for filing the return, the due date was 25-10-02. There was sufficient time for him to know the manner of depositing tax as well as for filing return. Therefore, the ground taken by the appellants is not a sound ground for making any reduction in penalty. It was argued that they are not contesting penalty under Section 77 of the Finance Act, 1994. 3. Heard representative of Revenue. 4. I find that Section 76 prescribes the minimum penalty of ₹ 100/- per day as has been held by the Larger Bench of the Tribunal in the cake of Eta Engineering Ltd. v. CCE, Chennai, reported in 2004 (174) E.L.T. 19 (Tri. - LB). In view of this, I do not find that there is any infirmity in the impugned order of the Commissioner (Appeals). Therefore, the appeal is rejected. (Dictated and pronounced in open Court)
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2006 (1) TMI 632 - BOMBAY HIGH COURT
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... ... ..... n even countered by the Revenue specifically in spite of giving them various opportunities. 3. Undisputedly the petitioner has already paid the customs duty of ₹ 8,18,064/-. The learned counsel for the petitioner states that the petitioner had paid nearly ₹ 35 lakhs towards differential duty by way of deposit as per the order passed by this Court earlier. 4. We have perused the order and the reasons. We do not find any error or illegality in the same. The petition accordingly, stands dismissed with no order as to costs.
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2006 (1) TMI 631 - CESTAT NEW DELHI
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... ... ..... ention that was raised before us is that, the Commissioner (Appeals) has no power to remand the matter. This contention has been negatived by the decision of the Gujarat High Court in the case of Commissioner of Central Excise, Ahmedabad-I v. Medico Labs, 2004 (173) E.L.T. 117 (Guj.). The Division Bench of the Gujarat High Court, relying upon the decision of the Supreme Court in the case of Union of India v. Umesh Dhaimode, 1998 (98) E.L.T. 584 (S.C.), held in paragraph 14 of its judgment, that the Commissioner (Appeals) was vested with such power of remand while deciding the appeal. It was held that he could confirm, modify or annul the decision appealed against and make such remand, which necessarily annuls the decision. This Tribunal has followed the ratio of the said judgment in its order dated 28-11-2005 in Appeal No. E/3387/05. 4. For the foregoing reasons, there is no substance in this appeal and it is hereby dismissed. (Dictated and pronounced in the open Court)
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2006 (1) TMI 630 - SC ORDER
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... ... ..... doned. The Special leave petition is dismissed.
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2006 (1) TMI 629 - CESTAT NEW DELHI
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... ... ..... eld that work contract is not liable to Service Tax under consulting engineer services. It was also pointed out that the Apex Court had on 2-8-2004 dismissed the petition for special leave filed by the Revenue challenging the said order of the Tribunal, as reported in 2004 (153) E.L.T. A181. Further reliance was also placed on the Tribunal’s decision in the case of Larsen & Toubro Ltd. v. CCE, Cochin reported in 2004 (174) E.L.T. 332 (Tribunal) 2004 (60) RLT 505 (CESTAT - Del.). It was held here that the design element of a work contract is not to be subjected to Service Tax by vivisecting the contract. 2. We have heard both sides and examined the case records. As the appellants have been able to demonstrate that theirs is a turnkey contract and keeping in view the recent decisions of this Tribunal, set aside the impugned order allowing consequential relief to the appellants. 3. The appeal is allowed. (Dictated & pronounced in open Court on 10-1-2006)
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2006 (1) TMI 628 - BOMBAY HIGH COURT
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... ... ..... ondents and, therefore, the extended period of limitation cannot be invoked in the present case, as the same is a finding of fact and no substantial question of law arises in this appeal. Hence appeal stands dismissed in limine with no order as to costs.
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2006 (1) TMI 627 - SUPREME COURT
Validity Of Appointment of 'Judicial Member' and 'Administrative Member' - Selection Committee - Jurisdiction, Powers and Authority Of Central Administrative Tribunal ("the CAT") - Whether consultation for appointment with the Chief Justice of India is a routine matter, or an idle formality ? - HELD THAT:- Unfortunately, the High Court seems to have proceeded on the footing that the appointment was being made on its own by the Central Government and that there was an irregular procedure followed by the Secretary by giving undue importance to the IB report. It was most irregular on the part of the High Court to have sat in appeal over the issues raised in the IB report and attempted to disprove it by taking affidavits and the oral statement of the Advocate General at the Bar. We strongly disapprove of such action on the part of the High Court, particularly when it was pointed out to the High Court that, along with the proposals made by the Government, the Minister of State had specifically directed for submission of the IB report to the Chief Justice of India for seeking his concurrence, and that this was done. We note with regret that the High Court virtually sat in appeal, not only over the decision taken by the Government of India, but also over the decision taken by the Chief Justice of India, which it discarded by a side wind. In our view, the High Court seriously erred in doing so. Even assuming that the Secretary of the concerned department of the Government of India had not apprised himself of all necessary facts, one cannot assume or impute to a high constitutional authority, like the Chief Justice of India, such procedural or substantive error. The argument made at the Bar that the Chief Justice of India might not have been supplied with the necessary inputs has no merit. If Parliament has reposed faith in the Chief Justice of India as the paterfamilias of the judicial hierarchy in this Country, it is not open for anyone to contend that the Chief Justice of India might have given his concurrence without application of mind or without calling for the necessary inputs. The argument, to say the least, deserves summary dismissal.
In this matter, the approach adopted by the Jharkhand High Court commends itself to us. The Jharkhand High Court approached the matter on the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right.
We consider it unnecessary to refer in detail to a number of authorities on which the Second Respondent has relied for, in our view, they are not relevant.
In the result, we are of the view that the impugned judgment of the High Court of Himachal Pradesh is erroneous and needs to be set aside, while the judgment and order of the High Court of Jharkhand are right and in consonance with the position in law and need to be upheld. Hence, we dismiss Civil Appeal directed against the judgment and order of the High Court of Jharkhand.
We allow the appeal of the Union of India in Civil Appeal and set aside the impugned judgment of the High Court of Himachal Pradesh in Writ Petition.
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2006 (1) TMI 626 - SUPREME COURT
Validity Of Allotment of lands measuring 20000 sq. feet and 8000 sq. feet - without issuing any advertisement - allotment having moreover been made for industrial purpose, was in contravention of the Master Plan drawn in terms of the provisions of the 1973 Act - whether any regulation has been framed by the authority for regulating the procedures for disposal of developed lands, houses, buildings and other structures - HELD THAT:- The power of disposal of lands, buildings and other developmental works indisputably vests in the Town and Country Development Authority i.e. the JDA. We have, however, not been informed as to whether any regulation has been framed by the authority for regulating the procedures for disposal of developed lands, houses, buildings and other structures. However, the lands in question is a developed land. The right to dispose of such lands, therefore, vests in the JDA. Such right being subject to the rules made by the State, we may closely examine the provisions thereof.
The right to transfer land on concessional terms, thus, is subject to two limitations, viz., (i) approval of the State is required therefor; and (ii) no lease on concessional terms shall be allowed for purposes other than charitable purposes such as hospital, educational institutions and orphanages; which implies that in a given situation a lease may be granted on concessional terms to any other institution but therefor sufficient and cogent reasons must be assigned.
The JDA, therefore, only had requisite authority to initiate the proceedings for grant of lease of land on concessional terms wherefor only the previous approval of the State was required to be taken. The State, except grant of previous approval to the proposal of the JDA and ultimate grant of lease of its land on concessional terms, has no other role to play. Disposal of the authority land is, thus, within the domain of the JDA, subject only to the previous approval of the State Government.
Both the State and the JDA had evidently been acting under some misconception. The Board was of the opinion that in relation to nazul land, the State is the final authority to allot land as the power of sanction lies within its domain. We have noticed hereinbefore that the State did not have any such power. The State, even in terms of Rule 3 of 1975 Rules has a limited role to play.
However, there are certain subsequent events which should be taken note of. Whereas the impugned order in the civil appeal arising out of SLP (C) No. 12442 of 2003 was passed on 21.8.2002, the SLP was filed on 7.5.2003. During pendency of the matter, the JDA had issued a circular on 4.6.2003 to the Private Respondent herein asking him to deposit a sum of ₹ 26 lakhs. The said amount is said to have been deposited on 7.6.2003 whereupon a deed of lease has also been executed.
It is stated that the Municipal Corporation granted permission for construction of the building on or about 30.7.2004 subject to the conditions mentioned therein. A notice was issued on 11.7.2003 by this Court. It is stated that the Private Respondent has sent invoices for machines worth ₹ 2 crores for which a sum of RS. 10 lakhs have been paid by way of advance. Submission of Mr. Tankha, in the aforementioned situation, is that the equities between the parties should be adjusted.
We have noticed hereinbefore that on 11.7.2003 notice was issued in the matter. The counsel for Respondent was present on the said date. An order of status quo was present on the said date. The Respondent, therefore, had notice about the pendency o the special leave petition. It might have applied for and granted the permission for construction of building but we find no reason as to how without constructing any building, orders for delivery of machines should have been issued. It is not the case of the Private Respondent that they had started construction pursuant to or in furtherance of the permission granted in this behalf by Municipal Corporation of Jabalpur.
The Appellant has brought to the notice of the High Court that a malady has been prevailing in the department of the State of Madhya Pradesh and the JDA. It may be true that the Appellant did not file any application questioning similar allotments but it is well-settled if an illegality is brought to the notice of the court, it can in certain situations exercise its power of judicial review suo motu. It is also well-settled that the equality clause contained in Article 14 of the Constitution of India cannot be invoked for perpetrating an illegality.
Thus, the impugned judgments of the High Court cannot be sustained, but, we are of the opinion that the interest of justice would be subserved if the question as regards allotment of land is left to the Jabalpur Development Authority. The Authority may consider the matter afresh for grant of such allotment in favour of the Private Respondents herein treating the applications filed by them either before it or before the State Government as fresh applications. Such applications must be processed strictly in terms of the provisions of the 1973 Act and the Rules framed thereunder as also keeping in view the Master Plan. Such a decision should be taken by the Competent Authority of the JDA at an early date preferably within a period of two months from the date of receipt of the copy of this order. The JDA shall return the amount deposited by the Private Respondents, if any, within four weeks from date.
These appeals are allowed to the aforementioned extent but in the facts and circumstances of this case there shall be no order as to costs.
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2006 (1) TMI 625 - SUPREME COURT
Validity of an amendment of the reservation policy of the State - Appointment to Group 'A' Service (Assistant Commissioner) - As per revised reservation policy, appointed as a Tehsildar - Karnataka State Public Service Commission (Commission) - HELD THAT:- In the order dated 15th March, 1994, this Court noticed that the Appellant had since been promoted to Class - I Post of Assistant Commissioner. As the Respondent was to be appointed in the said post with retrospective effect, a direction was issued to create a supernumerary post therefor as otherwise it was not necessary to issue any such direction. Furthermore, this Court directed that the Respondent should be placed below the last candidate appointed in 1976 meaning thereby the same post which she had been holding at the relevant point of time. She was held not to be entitled to any back wages therefor.
The judgment of this Court dated 15th March, 1994 must be construed in the aforementioned backdrop. A judgment, as is well known, is not to be read as a statute. But, it is also well-known that the judgment must be construed as if it had been rendered in accordance with law.
It may be true that in the Appellant's application for review, more or less similar pleas were raised, but rejected, but, herein the same is not an issue as we are concerned only with construction of this Court's order dated 15th March, 1994.
Justice demands that a person should not be allowed to derive any undue advantage over other employees. The concept of justice is that one should get what is due to him or her in law. The concept of justice cannot be stretched so as to cause heart-burning to more meritorious candidates. Moreover, at the end of the day, the Respondent has got what could be given to her in law. As of now, she had already been enjoying a higher scale of pay than what she would have got if she was to join the post of Assistant Controller. We, therefore, are of the opinion that interest of justice would be sub-served if she is allowed to continue in her post and direct the Appellant to consider her seniority in the Administrative Service in terms of the order of this Court dated 15th March, 1994 that she would be the last in the seniority list of the appointees in the post of Category I Assistant Commissioner (Karnataka Administrative Service).
The Appeal is allowed to the aforementioned extent.
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2006 (1) TMI 624 - DELHI HIGH COURT
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... ... ..... 2,73,185/- is released to the decree holder plus ₹ 10,000/- by way of costs which were awarded, there would still remain a balance with the Registry inasmuch as the amount deposited was ₹ 2,87,791/- and interest on that amount has also accrued till date. She submitted that the balance amount be released to the judgment debtor. There is no difficulty in allowing this contention of the judgment debtor because the decree holder is only entitled to the amount of decree. 6. Thus, the sum of ₹ 2,73,185/- plus ₹ 10,000/- by way of costs be released to the decree holder. The balance amount deposited with this Court is directed to be released to the judgment debtor. These directions be carried out within a week. It is made clear that by virtue of this order the judgment debtor is absolved of its liability (if any) of deducting tax at source under Section 194C of the Income Tax Act, 1961 in respect of the decretal amount. 7. This application stands disposed of.
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2006 (1) TMI 623 - DELHI HIGH COURT
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... ... ..... t any such fresh order passed by the Commissioner would not call for a further pre-deposit and that pre-deposit made before the Tribunal in the course of remand proceedings would suffice. Mr. Mridul counsel for the respondents submits that the preposition urged by the petitioner is not supported by the decision of this Court in Super Tyres' case. Be that as it may the question whether a further pre-deposit could be demanded in a case where the petitioner had already made a pre-deposit in the course of the remand round stands concluded by the decision of this Court. 2. In the circumstances and following the view taken in Super Tyres' case the order passed by the Tribunal shall have to be satisfied. We accordingly allow this writ petition, quash the order made by the Tribunal and direct that the appeal filed by the petitioner shall be heard on merits without insistence on any further pre-deposit. The Tribunal shall endeavour to expedite the disposal of the appeal.
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2006 (1) TMI 622 - ITAT DELHI
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... ... ..... essee to claim the deduction in question. The fact that M/s SFL was in a different line of business again throws some suspicion on the claim made by the assessee. As per the terms of the agreement to pay Commission, M/s SFL was only to procure orders whereas in the letter dt. 30.11.94 the assessee calls upon M/s SFL to resolve other disputes regarding deferment of supply by DOT, Bangalore, Besides the above, there is not even correspondence and list of orders procured for A.Y. 1996-97. Considering the facts and circumstances and the evidence available on record, we are of the view that the assessee had failed to explain the expenditure in question was wholly and exclusively for the business of the assessee. Consequently the revenue authorities were justified in disallowing the claim. Orders of the revenue authorities do not call for any interference. They are confirmed and the appeals by the assessee are dismissed. 10. In the result the appeals by the assessee are dismissed.
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2006 (1) TMI 621 - MADRAS HIGH COURT
Notice issued u/s 147 to reopen the assessment - sent after a notice u/s 154 for rectification - expenditure on relocation of plant and machinery - HELD THAT:- We are of the view that there is no error in the order of the Tribunal and hence no substantial question of law arises for our consideration in respect of Question Nos. 2 to 5. When we have dismissed the merits it is a futile exercise to refer the Question No. 1, which is academic in nature. We see no substantial questions of law arising for our consideration. The appeal accordingly fails and is hereby dismissed.
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2006 (1) TMI 620 - CESTAT NEW DELHI
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... ... ..... rovisions of Section 85 of Finance Act, 1994 the Commissioner (Appeals) is empowered to condone the delay of three months in filing the appeal on showing the sufficient cause for not filing the appeal within the period of limitation. The only contention of the appellant is that the adjudication order was serviced on 3-8-2004 but the lower formation of their organization did not bring into the notice, the adjudication order to the responsible person. 3. I find that Commissioner (Appeals) has power to condone the delay of three months on showing the sufficient cause for not filing the appeal within the period of limitation. The only cause has shown by the appellant is that their lower staff did not brought this matter to the notice of responsible person. Inefficiency in the organization cannot be held to be sufficient cause for not filing the appeal within the period of limitation. In these circumstances, I find no infirmity in the impugned order. The appeal is dismissed.
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2006 (1) TMI 619 - DELHI HIGH COURT
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... ... ..... and payment of ₹ 10 lacs to HDFC as management fee for acquiring the machinery on lease, as revenue expenditure? ii) Whether the ITAT was correct in law in holding that the custom duty benefit availed by the assessee under advance licensing scheme is a part of business income of the assessee for the purposes of computing deduction under Section 80HHC?? The appellant shall file the requisite number of paper books within three months in accordance with the High Court Rules. Post for hearing in due course.
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2006 (1) TMI 618 - MADHYA PRADESH HIGH COURT
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... ... ..... or running their business, then such subsidy is never regarded as capital but it is regarded as ‘Revenue Receipt’. It is this distinction that must be kept in consideration while deciding the true nature of subsidy. In other words, every subsidy cannot be regarded as ‘capital receipt’ or ‘revenue receipt’. In order to decide its real character, one is required to examine the Scheme, Object and its purpose for which it is given and then one can come to a conclusion as to whether it is a ‘capital receipt’ or ‘revenue receipt’. 8. In view of foregoing discussion and in the light of finding recorded by the Tribunal, we answer the question referred to this Court against the assessee and in favour of revenue. In other words, we answer the question by holding that subsidy received by the assessee for the assessment year in questions was in the nature of revenue receipt and was accordingly exigible to tax as such. No costs.
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2006 (1) TMI 617 - ITAT AHMEDABAD
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... ... ..... n view of the definition of the speculative business given under section 28 read with Explanation (2) it can be construed that the assesee was engaged in speculative business in respect of the purchase and sale of shares of Vasta Finance and Rencal Chemicals Ltd. The loss incurred by the assessee for the purchase and sale of shares of the Vasta Finance and Rencal Chemicals Ltd. is in our opinion represent speculative loss incurred by the assessee and, therefore, it cannot be allowed to be set off against the short-term capital gain speculated under section 73 of the I.T. Act. Therefore, we are of the view that the CIT(A) was not correct in law in directing the Assessing Officer to allow the set off of such loss against the short-term capital gain earned by the assessee. We accordingly, set aside the order of the CIT(A) and restore the order of the Assessing Officer on this issue by allowing the appeal of the revenue. 6. In the result the appeal of the revenue stands allowed.
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2006 (1) TMI 616 - ALLAHABAD HIGH COURT
Validity of assessment order - barred by limitation - non-service of statutory notice u/s 143(2) - No independent reason for rejecting additional ground - HELD THAT:- There is no dispute that before passing the assessment order under section 143(3) of the Act, issuance of notice u/s 143(2) of the Act within the specified time, is mandatory and in case if it is not issued, assessment order passed, stand illegal. Thus, in my opinion, ground, which has been raised and sought to be added in the grounds of appeal, is a legal ground which goes to the root of the matter, and, thus, the Tribunal ought to have allowed the application and the ground sought to be added be permitted to be added in the grounds of appeal.
The argument of learned standing counsel that it is not correct to say that the notice u/s 143(2) of the Act has not been issued within the specified time, may be correct, but this aspect of the matter has to be adjudicated by the Tribunal after entertaining the ground in this respect and for the purposes of admission of new ground, this aspect of the matter is not relevant.
In the result, petition is allowed.
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2006 (1) TMI 615 - ALLAHABAD HIGH COURT
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... ... ..... ent raised by Sri Shambhu Chopra for the department that since the assessee has failed to produce Smt. Mamta Devi, therefore an adverse inference should have been drawn against the assessee. 5. We have carefully considered the submission of learned counsel but do not find any merit therein. It has come on record that Smt. Mamta Devi is regularly assessed by the department in respect of her income. The Tribunal has treated the deposit as genuine. The finding of the Tribunal is based on relevant considerations. The Tribunal has found that the identity of the creditor is established and she had the capacity to give the deposit as she was regular assessed under the Income-tax Act as well as under the Wealth-tax Act. In view of the above we find no illegality in the order of the Tribunal. 6. In the result we answer the afore-mentioned question of law referred to us in affirmative i.e., in favour of the assessee and against the revenue. There will be, however no order as to costs.
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2006 (1) TMI 614 - ITAT DELHI
Bad and doubtful debts - book profit for the purpose of section 115JA - Interest on borrowings - disallowance u/s 14A - whether there is any evidence or material on record in the present case authorizing the Assessing Officer to invoke section 14A for the purpose of disallowing the expenditure of ₹ 5 lakhs
HELD THAT:- A provision for bad and doubtful debts is made with the view to guarding against the non-recovery of certain debts which are considered by the company as bad or doubtful. It implies that monies receivable by the company may not be realised. Explanation (c) refers to amount set aside to provisions made "for meeting liabilities". By making the provision for bad and doubtful debts, the assessee is not guarding against any liability which it may be called upon to pay. For instance, a provision made for gratuity payable to the employees may properly be called a provision made for meeting a liability. But, when a provision is made to guard against the possible non-recovery of amounts due to the assessee, it cannot be described as provision made for meeting a liability. The Institute of Chartered Accountants in India (ICAI), in its guidance note on "terms used in financial statements" (filed by the assessee) had defined a "liability" as "The financial obligation of an enterprise other than owners’ funds". Therefore, on this ground also, the decision of the CIT(A) requires to be upheld. We do so and dismiss the ground.
Interest on borrowings - disallowance u/s 14A - Section 14A gives the Assessing Officer the power to disallow expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. The precise question that arises for consideration is whether it is necessary for the Assessing Officer to show on the basis of the material on record that the assessee in fact incurred expenditure to produce non-taxable income which he may disallow or whether he can estimate a part of the expenditure incurred by the assessee as expenditure incurred to produce non-taxable income on the assumption that a part of the expenditure must have necessarily been incurred to produce non-taxable income.
The conclusion seems inescapable that the expenditure which the Assessing Officer seeks to disallow u/s 14A should be actually incurred and so incurred with a view to producing non-taxable income. If this much is clear from the section, it follows that it is the duty of the Assessing Officer to pin point such expenditure on the basis of the material on record.
The mere removal of the disability statutorily, however does not ipse facto authorize him to assume that a part of the expenditure has been incurred by the assessee in relation to the exempted income and to proceed to disallow the same on estimate. The section does not, in our opinion, relieve the Assessing Officer of the burden of proving, on the basis of evidence or material on record that the assessee has in fact incurred expenditure which has relation to the exempted income. Even in regard to section 80M, the Calcutta and Madhya Pradesh High Courts have held that the Assessing Officer cannot estimate and disallow any notional or ad hoc expenditure to reduce the dividend income.
No dispute that the entire dividend of ₹ 83,02,635 which is exempt under section 10(33) was received from M/s. Eicher Motors Ltd. by a single dividend warrant and no effort or expenses were necessary or were incurred to earn such income. These is also no material brought before us to show that the assessee’s contention that no part of the interest can be attributed to the earning of the dividend income since the shares were acquired from the own funds in the earlier years and not from borrowed funds, is factually incorrect. In these circumstances, we have to agree with the assessee that there is no material on the basis of which the Assessing Officer would estimate and disallow a sum of ₹ 5 lakhs by invoking section 14A. We, therefore, agree with the decision of the CIT(A), affirm the same and dismiss the Ground No. 3.
In the result, the appeal is dismissed with no order as to costs.
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