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Showing 161 to 180 of 692 Records
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2006 (7) TMI 584 - GAUHATI HIGH COURT
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... ... ..... hich were raised by the petitioner for consideration of this court and has not gone into the merits of the case, namely, whether in fact branch transfers were effected by the petitioner or not, etc., and the points on merits will have to be gone into by the appellate authority, if appeals are filed against the reassessment orders passed under section 44 of the State Act which are impugned in the instant petitions. Mr. Sunit S. Shah, learned Government Pleader, on instructions from Mr. Anilkumar Harilal Thakker, Deputy Commissioner of Commercial Tax, who is personally present in the court, states at the Bar that if appeals are filed against the reassessment orders passed under section 44 of the State Act within four weeks from today, the respondent shall not resist the applications for condonation of delay which may be filed by the petitioner. For the foregoing reasons, all the four petitions fail and are dismissed. Notices are discharged. There shall be no order as to costs.
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2006 (7) TMI 583 - BOMBAY HIGH COURT
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... ... ..... Excise, Calcutta-II reported in 2004 164 ELT 390 and Metlex (I) Pvt. Ltd. v. Commissioner of Central Excise, New Delhi reported in 2004 165 ELT 129. The question in both those cases was with respect to the concept of manufacture under the Central Excise, where also similar view has been taken. In any case, we are concerned with the matter under the Bombay Sales Tax Act. In our view, it was not possible for the Tribunal to take a view different from the one which the apex court has taken in the case of Shiv Datt 1992 84 STC 497. The applicant has sought to raise the question which amounts essentially to reappreciation of evidence and disturbing the finding rendered by the Tribunal. As far as law is concerned, the facts of the present case are similar to that from the case of Shiv Datt 1992 84 STC 497 before the apex court, and the view taken by the apex court is followed by the Tribunal. In the circumstances, there is no case in making reference. The application is rejected.
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2006 (7) TMI 582 - AUTHORITY FOR ADVANCE RULINGS
Whether in the facts and circumstances of the case and in law, salary income received in India by Mr. Manish Gupta from British Gas India P. Ltd. for rendering services outside India is taxable in India ?
Whether in the facts and circumstances of the case and in law, British Gas India Private Limited is required to withhold taxes on salary paid in India to Mr. Nipun Pradhan and Mr. Manish Gupta for rendering services outside India?
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2006 (7) TMI 581 - SUPREME COURT
Whether Section 14 of the Limitation Act, 1963 is applicable to the Arbitration Act, 1996 or not?
Held that:- There is no two opinion in the matter that the Arbitration and Conciliation Act, 1996 do not expressly excluded the applicability of Section 14 of the Limitation Act. The view taken by the court below excluding the applicability of Section 14 in this proceeding is not correct. We hold that section 14 of the Limitation Act, 1963 is applicable in the Arbitration and Conciliation Act, 1996. We set aside all the judgments/Order and remand all these cases back to the Trial Court/District Court for deciding the application under Section 14 of Limitation Act on merit after hearing both the parties and in case the delay is condoned then the case should be decided on merits after hearing all the concerned parties. All the appeals are allowed.
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2006 (7) TMI 580 - SUPREME COURT
Notification dated 23.12.1996 challenged which was issued by the Union of India by which the Central Government amended Rules 50, 51 and 54 of the Employees State Insurance (Central) Rules, 1950, pursuant to which the wage limit for coverage of an employee under Section 2(9)(b) of the Employees State Insurance Act was enhanced from Rs.3,000/- to Rs.6,500/- instead of the existing wage ceiling of Rs.3,000/- p.m.
Held that:- The ESI Act has enacted to provide for certain benefits to employees in case of sickness, maternity and employment injury. Under the scheme of the Act, function of the ESI Corporation is to derive insurance fund from the contribution from employees and workmen. The employer is entitled to recover workmen's share from the wages of the workmen concerned.
The act of Court can prejudice no party either the ESI or the respondent-companies. We, therefore, relieve the respondents from making any contributions for the period in question and direct them to make the contribution as directed by the Division Bench of the High Court. It is stated that some of the respondents have already filed exemption applications and that the appellant-Corporation has also granted them necessary relief. We also permit the other respondents who have not filed any exemption application may now file the same and if such application for exemption is filed, it is for the authorities to consider the same on merits and in accordance with law. For the foregoing reasons, we dismiss all the appeals filed by the appellant-Corporation in the peculiar facts and circumstances of the cases. The High Court while upholding the Notification has held that the same would apply from the date of the judgment.
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2006 (7) TMI 579 - SUPREME COURT
Whether the Managing Director of the respondent company appointed an arbitrator in terms of the arbitration clause?
Held that:- When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the Scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage. We are not in a position to agree with the contrary view taken by some of the High Courts.
Since here, the power of the Managing Director of the respondent is saved by Section 15(2) of the Act and he has exercised that power on the terms of the arbitration agreement, we see no infirmity either in the decision of the learned Chief Justice or in that of the Division Bench. Appeal dismissed.
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2006 (7) TMI 578 - MADRAS HIGH COURT
Levy of penalty under Section 10(b) of the Central Sales Tax Act, 1956 - mens rea is an essential ingredient for the levy of penalty or not - HELD THAT:- Section 10(b) of the Act provides for an offence if any person being registered dealer falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration. The expressionfalsely represents clearly shows that the element of mens rea is the necessary component of the offence. In the absence of mens rea, resort to penal provision would not be proper unless it is established that the conduct of the dealer was contumacious or that there was deliberate violation of the statutory provision or willful disregard thereof. If the registered dealer honestly believes that any particular goods are embraced by the certificate of registration and on that belief makes a representation, he cannot be held guilty of the offence under Section 10(b) of the Act and no penalty can be imposed under Section 10A of the Act. The question whether the assessee acted under the honest belief is a question of fact.
Thus, mens rea is an essential ingredient for the levy of penalty under Section 10(b) of the Central Sales Tax Act, 1956. The reference is answered accordingly - The Registry is directed to place the appeals before the appropriate Bench for disposal.
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2006 (7) TMI 577 - SUPREME COURT
Whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution?
Held that:- It is not the case of the petitioners that with any oblique motive the eligibility criteria has been stipulated. On the contrary after analyzing the issues, a Committee appointed by the respondent had suggested the norms and the schemes was accordingly prepared. We do not find any irrationality much less something which is totally out of context to justify interference.
Clause 4 of the Scheme (Broad Description of Proposed arrangement) indicates that in order to implement this Court's order there was desirability to discourage contractors and involve SSG through non-profit organisations. As the scheme itself provides, the intention is to make the SSGs. fully equipped within a certain period after these NGOs. go out of the picture and State Government steps in.
In the aforesaid background we do not find anything illicit in the impugned criteria to warrant interference. Appeal dismissed.
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2006 (7) TMI 576 - SUPREME COURT
Whether burden of proof in terms of Section 118 had been discharged or not?
Held that:- The evidences adduced by the parties before the trial court lead to one conclusion that the Appellant had been able to discharge his initial burden. The burden thereafter shifted to the Second Respondent to prove his case. He failed to do so.
We have gone through the oral evidences. The Second Respondent has even failed to prove that the Appellant had paid to him a sum of Rs. 5000/- by cash. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below. We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. The Appellant is on bail. He is discharged from the bail bonds. The Second Respondent shall pay and bear the costs of the Appellant. Counsels' fee assessed at Rs. 10,000/-.
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2006 (7) TMI 575 - SUPREME COURT
Whether existence or availment of civil remedy in respect of disputes arising from breach of contract, bars remedy under criminal law?
Whether the allegations in the complaint, if accepted on face value, constitute any offence under sections 378, 403, 405, 415 or 425 IPC ?
Held that:- Appeal allowed in part. The High Court was justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency of several civil proceedings.
The High Court was not justified in quashing the complaints/criminal proceedings in entirety. The allegations in the complaint are sufficient to constitute offences under sections 415 and 425 of IPC. We accordingly allow these appeals in part and set aside the order of the High Court insofar it quashes the complaint under sections 415 and 425. As a consequence, the Judicial Magistrate, Coimbatore and the Judicial Magistrate, Alandur before whom the matters were pending, shall proceed with the matters in accordance with law in regard to the complaints filed by IOC in so far as offences under sections 415 and 425 of IPC.
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2006 (7) TMI 574 - DELHI HIGH COURT
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... ... ..... eement, the entire amount shall become due and payable along with interest by the party of the first part. 27. Accordingly, in terms of Clause 14 of the agreement reproduced hereinabove the defendants who are in breach of the agreement dated 25th June, 1999 are liable to pay interest on the acknowledged liability of Rs. 26,88,133.78 16 per annum from 1st April, 1992 till the date of realization. 28. In view of the aforesaid discussion, a decree in the sum of Rs. 26,88,133.78 with interest 16 p.a. from the date of institution of the suit i.e. 16th March, 2002 till realization of the amount is passed in favor of the plaintiff and against the defendants who shall be jointly and severally liable to pay the same. The plaintiff shall also be entitled to costs of the suit. The registry shall draw up the decree-sheet in the above terms forthwith. 29. The suit and the applications being IA Nos.3370/2003, 3387/2004, 8036/2004, 8037/2004, 727/2005, 728/2005 are disposed of accordingly.
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2006 (7) TMI 573 - PUNJAB & HARYANA HIGH COURT
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... ... ..... R 275 2003 1 RC 208 held that merely because the Modvat credit was an irreversible credit available to manufacturers upon purchase of duty-paid raw material, that would not amount to income which was liable to be taxed under the Act income was not generated to the extent of the Modvat credit on unconsumed raw material. It cannot be disputed that excise duty is to be paid to the State and the same is not a kind of profit in the hands of the assessee. Accordingly, while accepting the findings of the Tribunal, the issue is decided against the Revenue. As far as question No. (ii) is concerned, while delivering judgment in ITA. No. 293 of 2005 mdash CIT v. Vardhman Polytex Ltd. 2008 296 ITR 382 (P and H) mdash decided on May 22, 2006, we have already decided an identical issue against the Revenue and in favour of the assessee. For the reasons recorded therein, we reject the appeal of the Revenue. Accordingly, finding no merit, the appeal of the Revenue is dismissed on both counts.
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2006 (7) TMI 572 - ORISSA HIGH COURT
Initiation of a reassessment proceeding - notice issued u/s 12(8) of the Orissa Sales Tax Act, 1947 ("the OST Act") - Whether the expression "for any reason" in section 12(8) of the OST Act gives wider powers to the authorities to reopen assessment than the words "reasons to believe" and whether the exercise of power u/s 12(8) of the OST Act has to be consistent with the statutory rules and in accordance with the statutory forms framed under the said Act? - HELD THAT:- This court feels bound by the interpretation given to section 12(8) of the OST Act by the apex Court in Uttareswari Rice Mills [1972 (9) TMI 109 - SUPREME COURT] and which was subsequently followed in Ugratara Bhojanalaya [1992 (7) TMI 300 - ORISSA HIGH COURT]. Following the aforesaid ratio this court reiterates that the difference in phraseology between "for any reason" and "where the Sales Tax Officer has reasons to believe" does not make any material difference in view of the provisions in rule 23 of the said Rules which mandate that notice for reopening has to be in form VI and form VI uses the expression "where the Sales Tax Officer has reasons to believe".
Thus, we hold that the words "for any reason" in section 12(8) of the OST Act do not give wider powers to the authorities to reopen assessment compared to words "reasons to believe" since the words "reasons to believe" are incorporated in the statutory form in which notice of assessment is to be issued. The court also holds that while exercising power u/s 12(8) of the OST Act, the authority has to act consistently with the statutory norms prescribed under the statutory rules and the forms.
The importance of this doctrine lies in the fact that if a statutory functionary is vested with a power to act, it is that statutory authority alone who will form the necessary objective opinion for exercising its powers. In doing so, it may take into consideration whatever is relevant. As in the instant case, audit objection may be a relevant consideration. Taking that objection into consideration, the Sales Tax Officer has to form his objective opinion. But the Sales Tax Officer cannot totally abdicate or surrender his discretion to the objection of the audit party by mechanically reopening assessment u/s 12(8) as has been done in this case. This was frowned upon again by Justice Hegde again while delivering the judgment of the apex Court in Purtabpur Company Ltd. v. Cane Commissioner of Bihar [1968 (11) TMI 96 - SUPREME COURT. The Supreme Court quashed the order of the Cane Commissioner as it found that the Cane Commissioner virtually worked as the mouth-piece of the Chief Minister.
In State of U.P. v. Maharaja Dharmander Prasad Singh [1989 (1) TMI 315 - SUPREME COURT], support of the principle that "a statutory authority cannot permit its decision to be influenced by the direction of others as that would amount to abdication and surrender of its discretion". The court laid down if an authority hands over its discretion to another and acts under the dictate of the other authority it acts ultra vires.
Following these principles this court holds that the manner in which reassessment proceeding was blindly initiated on audit objection by the Sales Tax Officer without any independent application of mind, the exercise of power u/s 12(8) of the OST Act has been vitiated and as such the impugned notice of reassessment is liable to be quashed and is accordingly quashed. Annexure 1 is quashed.
The writ petition is thus allowed.
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2006 (7) TMI 571 - ITAT AMRITSAR
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... ... ..... Income-tax Rules, 1962. As such, the absence of a specific rule in the Interest-tax Rules, in this regard is immaterial. It cannot be gainsaid that the Income-tax Rules, 1962, are entirely in conformity with the principles of natural justice, including the principle of audi alteram partem. Nobody can be condemned unheard. No additional evidence can be entertained at the back to the party against whom such evidence is to be used. All considered, we find merit in the grievance of the Department. This grievance is thus accepted as justified. Accordingly, the matter is restored to the file of the Assessing Officer for decision afresh, of course, the assessee will be afforded adequate opportunity by the Assessing Officer to produce the aforesaid evidence furnished before the learned Commissioner of Income-tax (Appeals) and to substantiate the same. For statistical purposes, therefore, the appeal of the Department stands allowed. Order pronounced in the open court on July 17, 2006.
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2006 (7) TMI 570 - ITAT MUMBAI
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... ... ..... this view, we hold that it would be reasonable to disallow one-fifth of the depreciation on the motor cars owned by the assessee in respect of which depreciation has been claimed and which have been used by the firm in which the appellant is a partner. For this position, there is a specific provision under section 38(2), as per which when an asset is not exclusively used for the purpose of business, the Assessing Officer shall restrict the claim for depreciation to a fair proportion of the purpose for which the asset is used for the purpose of business or profession. The Assessing Officer in the assessment of the firm having held that one-fifth as the estimated proportion in respect of which the motor cars are not used exclusively for the purpose of business of the firm, following the same, we direct that the four-fifths of the claim for depreciation be allowed in the hands of both the appellants, the facts being the same. In the result, the three appeals are partly allowed.
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2006 (7) TMI 569 - ITAT MUMBAI
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... ... ..... expenditure on advertisement might have also benefited the principal of the assessee but on the above ground, the expenditure incurred by the assessee could not be disallowed. The assessee clearly incurred expenses wholly and exclusively for purposes of its business and, therefore, was entitled to deduction of expenditure claimed in computing its income. The learned Judicial Member has given sound reasons for allowing expenditure in question. On the facts of case, it is not possible for me to agree with the learned Accountant Member on any of the reasons given by him to disallow the expenditure in question. In the light of the above discussion of both the points/issues raised before me, I agree with the order proposed by the learned Judicial Member. The addition made for the alleged accrual of income and disallowance of expenditure claimed on advertisement, in my opinion, is not justified. The appeal should now go before the regular Bench for disposal in accordance with law.
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2006 (7) TMI 568 - PUNJAB & HARYANA HIGH COURT
Provision for warranty claim and free service charges despite the fact that the claims made are merely provisions/contingent liabilities and hence not allowable as per the settled law? - HELD THAT:- From the findings of facts recorded by the Tribunal in the present case, it is evident that the quantification on account of warranty claim and for free service has been made by applying scientific basis. That being so, we do not find any question of law arises in the present cases.
Accordingly, these petitions are dismissed.
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2006 (7) TMI 567 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - Anti-dumping duty - Test report - Effect on quantum of pre-deposit - Anti-dumping duty
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2006 (7) TMI 566 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case ... ... ... ... ..... unt of Rs. 27,94,325/- within 30 days from the receipt of the Admission Order, dated 5-10-2005. More than nine months have passed and the applicant is yet to comply with the direction of this Bench and this Bench is satisfied that the applicant has adopted dilatory tactics by pleading for time. The entire conduct of the applicant and the co-applicant amounts to non-cooperation without showing any serious intention to pay the admitted amount of duty liability, even after permitting the opportunity of instalment facility. 8. emsp As the applicant has not cooperated with the Settlement Commission, under Section 127-I(1) of the Customs Act, 1962 we send this case back to the proper officer of customs, who was dealing with this case prior to applicant rsquo s approach to this Bench of the Settlement Commission, and the said proper officer shall dispose of the case in accordance with the provisions of the Customs Act, 1962 as if no application under Section 127B had ever been made.
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2006 (7) TMI 565 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Demand ... ... ... ... ..... peration shown by the applicants, the Bench is of the view that the matter can be settled and the applicants are entitled to all the immunities including immunity from interest. Accordingly, the application is admitted and allowed to be proceeded with under Section 32F(1) and finally settled in terms of Section 32F(7) of the Central Excise Act, 1944 on the following terms - (i) The duty liability is fixed at Rs. 34,87,039/-. Since this amount is already paid, no further duty liability subsists (ii) The applicant is granted immunities from payment of interest, fine, penalty and prosecution under the Central Excise Act, 1944. 10. emsp The above immunities are granted in terms of Section 32K(1) of the Central Excise Act, 1944. The attention of the applicant is also drawn to subsections (2) and (3) of Section 32K ibid, in this regard. The above settlement shall be void if it is subsequently found by the Commission that it has been obtained by fraud or mis-representation of facts.
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