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Showing 61 to 80 of 651 Records
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2006 (8) TMI 637
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... ... ..... e of or Assessing Officer for fresh adjudication. Following the same, the orders of the Learned CIT (A) for these two years are set aside and the matter is restored to the file of Assessing Officer ..................... guidelines given in the aforesaid order of the Tribunal. 7. Ground No.5 raised by the Revenue is as under "On the facts and in the circumstances of the case and in law, the CIT(A) erred in reducing the disallowance of ₹ 1,45,000/- out of staff welfare expenses to ₹ 45,000/-without appreciating that the assessee failed to submit the requisite details specifically called for before the Assessing Officer." No such ground has been raised by the Revenue in other years. Both the parties are agreed that this issue is covered against the Revenue by the order of the Tribunal in assessed own case dated 9.11.2005. Therefore, following the same, the order of the Learned CIT (A) is Upheld on this issue. 8. In the result, appeals stand partly allowed.
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2006 (8) TMI 636
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... ... ..... ly whereas in this case same has not been disclosed by the parties before the Deptt. while arriving at assessable value?” The High Court held - “The Tribunal has clearly held that the assessable value has included costs and profit upto the sale of goods - not merely cost of materials and cost of conversion and profit of job workers. This finding is not shown to be perverse no substantial question of law arises for reference. Petition is dismissed.
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2006 (8) TMI 635
Quantification of damages done and demanded, cannot be legally sustained and accordingly they were set aside - Demand was barred by limitation - breach of conditions of a contract - Challenged the judgment of a Division Bench of the Kerala High Court - HELD THAT:- Unfortunately the Division Bench did not consider the contentions which were raised before the learned Single Judge. It also did not record any positive finding as to whether the document relied upon by the appellant clearly established admission of a breach of contract. The portion of the order of learned Single Judge, quoted above, suggests that there was no dispute when read in the context of the letter.
As rightly contended by learned counsel for the appellant the basic issue related to the question whether the demand was barred by limitation. As noted above the Division Bench of the High Court did not examine this question.
Above being the question we set aside the order of the Division Bench and remit the matter back for fresh consideration limiting the examination to the question whether the demand by barred by limitation. Interim order shall be operative till the disposal of the matter by the Division Bench. We make it clear that merely because interim protection has been given that shall not be considered to be expression of opinion on merits.
The appeals are disposed of accordingly.
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2006 (8) TMI 634
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... ... ..... oncerned cement factory, Modvat/Cenvat credit on capital goods will be available to the assessee. On the other hand, if the mines are not captive mines but they supply to various other cement companies of different assessees, Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessee under the appropriate Modvat/Cenvat Rules. The matters are remanded to the respective original authorities for decision only on the above issue.” In view of the aforesaid, it must be held that the Tribunal was in error in holding that the assessee is not entitled to avail Modvat credit in respect of capital goods used at captive mine site. Accordingly, the appeal is allowed. The order of the Tribunal and authorities below are set aside and it is held that assessee is entitled to avail Modvat/Cenvat credit on Duty paid on capital goods and inputs used at captive mine sites, if the same is otherwise eligible for such credit. No order as to costs.
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2006 (8) TMI 633
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... ... ..... aspects of the matter and has come to the conclusion that what has been collected is not demurrage charges but only storage charges. Thus the appellants are trying to contest the findings of the Commissioner on both the grounds i.e. on merits and time bar. At this prima facie stage, it is not possible to say that what has been collected by the appellants is demurrage charges which is not taxable in the matter. However, taking into consideration of the overall all facts and circumstances of the case, the appellant is directed to pre-deposit an amount of ₹ 25,00,000/- (Rupees Twenty five lakhs only) within a period of three months from today and on such deposit, the pre-deposit of balance amount of Service tax and penalties stands waived and recovery stayed till the disposal of the appeal. The failure to comply with the terms of this order will entail dismissal of the appeal. Call on to report compliance on 11th December 2006. (Pronounced and dictated in the open court)
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2006 (8) TMI 632
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... ... ..... any demur. It is undisputed that the appellant has been afforded enough opportunity and he has participated throughout the enquiry proceedings, he has been heard and allowed to make submission before the enquiry Committee. 4. Admittedly, the enquiry was also initiated against the appellant when he was on probation. It is well settled principle of law that if the probationer is dismissed/terminated during the period of probation no opportunity is required to be given and, therefore, the question of violation of principle of natural justice does not arise in the given facts of this case. The appellant was appointed as Head Master of the Institute. The conduct of the appellant, therefore, must be a role model. Considering the conduct of the appellant as revealed in the chargesheet, in our view, the appellant has committed a grave misconduct which would warrant his termination from service. For the reasons aforestated, this appeal being devoid of merit is accordingly dismissed.
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2006 (8) TMI 631
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... ... ..... itable Trust v. CIT 2002 120 Taxman 496, wherein the Apex Court has observed that a fraud was played by the rectification of the trust deed by altering the very object of the trust. The Apex Court was satisfied that trust deed must be read as it originally stood and that, that is the manner in which the appellant-trust should now be assessed. 6. In the present case, we find from the trust deed that the income of the trust after defraying its expenses was to be spent equally, i.e., 1/3rd on genuine charitable objects; 1/3rd on the maintenance and support of the members of the settlor’s family and relatives and 1/3rd on remuneration to the trustees. As only 1/3rd of the income was to be spent on charitable objects, the trust ceased to be trust for charitable purposes. Therefore, exemption was not justified. 7. We, accordingly, answer two questions referred to us in the negative, i.e., in favour of the revenue and against the assessee. There shall be no order as to costs.
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2006 (8) TMI 630
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... ... ..... ase, are of the opinion that it would be futile to issue a writ of or in the nature of mandamus directing the Corporation to pay the aforementioned amount of ₹ 15 lakhs to the respondent-Company. We may, however, hasten to add that we have not gone into the question as to whether the respondent-Company had paid any amount to the Corporation as against the loan amount which had admittedly been received by it. If the respondent-Company had not done so, the Corporation may take such steps in relation thereto, as it may be advised in this behalf but it goes without saying that it would be open to the respondent-Company to raise such contentions, including the payment of additional subsidy to it and/or effect thereof in the proceedings, which may be initiated by the Corporation. We are, therefore, of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly. o p /o p The appeal is allowed with the aforementioned observations. No costs. o p /o p
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2006 (8) TMI 629
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... ... ..... 65-A of the Transfer of Property Act deals with the power of the mortgagor to lease the mortgaged property. This power of mortgagor is not unfettered but has been conditioned under Sub-Sections 1, 2 and 3 of Section 65-A of TP Act. 6. Manifestly the said unregistered lease was created for the alleged unlimited period through unregistered lease deed in complete contravention of Section 65-A of the Transfer of Property Act. As per the said provision of Section 65-A, the lessee can enjoy the protection if the lease is created by the mortgagor in conformity with the mandate of requirements laid down in Section 65-A of TP Act and not otherwise. Neither the mortgagor nor the lessee can defeat the right of mortgagee and no lessee can claim any protection unless his tenancy is as per the requirements of Section 65-A of Transfer of Property Act. The present petition is devoid of any merits. We would not like to interfere in the orders passed by the DRAT. 7. The petition is dismissed.
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2006 (8) TMI 628
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... ... ..... ESTAT should have directed deposit of entire disputed duty failing which the appeal would stand dismissed notwithstanding the fact that the company was admittedly a sick industry that had been referred to the BIFR and the reference was still pending. There could have been no question of reference of the company to the BIFR unless its accumulated losses had exceeded its net worth. As observed above, the balance sheet on which reliance has been placed indicates loss of ₹ 6,55,50,193/- during the year ending 31stMarch, 2005. 65. The writ petition is allowed. The impugned order is set aside and quashed. The Tribunal shall reconsider the prayer of the petitioner for waiver of pre-deposit of the disputed duty taking into account all relevant factors, including the financial hardship of the petitioner as well as the prima facie case. 66. In any case, the appeal shall be heard and disposed of expeditiously preferably within 3 weeks from the date of communication of this order.
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2006 (8) TMI 627
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... ... ..... ted on Kilometer basis such service is not a taxable service. 4. The Revenue pointed out that as per the agreement between the appellant and M/s. GAIL (India) Ltd., the applicants are renting the cabs on monthly basis as well on kilometer basis. The contention of the Revenue is that the ratio of the decision of the Tribunal relied upon by the applicant is not applicable in a case where cab is rented on monthly basis. 5. In this case the applicant is providing taxable service as rent-a-cab operator as they were providing cabs on monthly basis to M/s. GAIL (India) Ltd. and partly on kilometre basis. In these circumstances, prima facie, it is not a fit case for waiver of total amount of service tax. Applicants are directed to deposit an amount of ₹ 80,000/- (Rupees Eighty thousand only) for hearing of the appeal within eight weeks, the remaining amount of duty and penalty is waived for hearing of the appeal. Adjourned to 30th Oct., 2006 for reporting compliance.
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2006 (8) TMI 626
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... ... ..... rented on Kilometer basis such service is not a taxable service. 4. The Revenue pointed out that as per the agreement between the appellant and M/s. GAIL (India) Ltd., the applicants are renting the cabs on monthly basis as well on kilometer basis. The contention of the Revenue is that the ratio of the decision of the Tribunal relied upon by the applicant is not applicable in a case where cab is rented on monthly basis. 5. In this case the applicant is providing taxable service as rent-a-cab operator as they were providing cabs on monthly basis to M/s. GAIL (India) Ltd. and partly on kilometer basis. In these circumstances, prima facie, it is not a fit case for waiver of total amount of Service Tax. Applicants are directed to deposit an amount of ₹ 2,00,000/- (Rupees Two lakhs only) for hearing of the appeal within eight weeks, the remaining amount of duty and penalty is waived for hearing of the appeal. Adjourned to 30th Oct., 2006 for reporting compliance.
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2006 (8) TMI 625
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... ... ..... licable to the facts of the case under reference. In the case of CIT vs. Eurasia Publishing House (P) Ltd. (1998) 232 ITR 381(Del), the CIT did not give any direction to verify any facts or law but in this case the assessment order itself was set aside to be framed afresh. Likewise, the Hon'ble Karnataka High Court in the case of CIT vs. Hindustan Aeronautics Ltd. (1986) 54 CTR (Kar) 158 (1986) 157 ITR 315(Kar) gave a ruling that an order refusing to revise an order is amenable to writ jurisdiction of the Hon'ble High Court. The facts of the above cases are completely distinguishable with the cases in hand. Consequently, I hold that the appeals against assessment orders passed in compliance of the orders of CIT under s. 264 of the Act, in these two cases, are appealable. Hence, I restore both these appeals to the file of the learned CIT(A) with the direction to decide them on merits, as per law. 9. In the result, both the appeals are allowed for statistical purposes.
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2006 (8) TMI 624
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... ... ..... gment rendered by the CESTAT, Northern Bench, New Delhi in the case of J & J Enterprises v. CCE 2005 (186) ELT 189/ 2 STT 161 wherein in similar circumstances, the service tax imposed on assessee was set aside. 2. The learned Jt. CDR submits that the appellants were providing the entire range of cargo handling services, in addition to several other services including arrangement for transportation and, therefore, they are liable to pay service tax. 3. On a careful consideration of the submissions made by both the sides, we notice that the appellants were only carrying on supply of labours and they were paid only commission for supply the labours and were not carrying on the cargo handling service. Hence, the issue is covered by the cited judgment. The stay application is allowed unconditionally by granting waiver of pre-deposit in the matter. The revenue is barred from recovery of the amounts till the disposal of the appeal. The appeal to come up for hearing in its turn.
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2006 (8) TMI 623
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... ... ..... he Ld. CIT(A) while admitting and relying upon such evidence. The evidence submitted by the assessee was directly entertained without referring the same to the Assessing Officer under sub-rule (1) of rule 46A. This action of the Ld. CIT(A) was not only contrary to the provisions of Rule 46A, but was also contrary to the Rules of natural justice as no evidence could have been admitted without referring the same to the opposite party. 11.1 In the light of these facts and circumstances of the case, we set aside the orders of the CIT(A) and restore the appeal to his file for deciding the same afresh as per law after complying with the requirement of Rule 46A. Needless to say that while redeciding the matter both the parties shall be allowed reasonable opportunity of being heard. Accordingly, the relevant grounds of appeal of the revenue are treated as allowed for statistical purposes. 11.2 In the result, the appeal filed by the revenue is partly allowed for statistical purposes.
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2006 (8) TMI 622
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... ... ..... be confirmed if the show-cause notice has not been issued prior to the period of demand. This judgment has been confirmed by the Apex Court. In the present case, the show-cause notice has been issued after the amendment was brought to the Finance Act retrospectively. Therefore it is the contention of the appellants that following ratio of the cited judgments, the demands are not sustainable. The learned counsel submits that in terms of the cited rulings including the ruling of this Bench, the appeal is to be allowed along with the stay application. 2. Heard the learned JDR who fairly concedes the legal position. 3. On a careful consideration of the submissions made by both the sides and on perusal of the records, we notice that the show-cause notice in the present case has been issued on 12-1-2004, i.e. much after the amendment was brought to the Finance Act retrospectively by bringing the category under the net of service tax. The say application and the appeal are allowed.
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2006 (8) TMI 621
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... ... ..... nation arises only when a witness has tendered evidence in chief-examination. Under Section 138 of the Indian Evidence Act, cross-examination follows chief-examination, but not without chief-examination. If then is no chief- examination, there is no cross-examination. It is only a witness who is examined in chief who can be cross-examined. Therefore, a prayer for cross-examination of the plaintiff even when the plaintiff has not been examined in chief is ridiculous and not provided for under Section 138 of the Evidence Act The trial court has rightly rejected the application. No scope for interference with an order of this nature. 10. It is open to the petitioner to conduct her defence in a manner that furthers her case based on the law as declared by the Supreme Court But, that does not enable her to seek the court to compel the plaintiff also to conduct the case in a manner which the defendant No. 2 petitioner thinks is an appropriate manner. 11. Writ petition is rejected.
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2006 (8) TMI 620
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... ... ..... ification itself to contend that the details of the inputs are not required to be disclosed in the invoices. 2. The learned Counsel submits that on the same issue, this bench has allowed the appeal in the case of Adlabs v. CCE, Bangalore - 2006 (2) S.T.R. 121(Tri.-Bang.) and submits that the stay and appeal could be allowed in the light of this ruling. 3. The learned JDR submits that he would like to argue the matter at length. He points out that in a similar cases, the stay applications have been allowed and the appeals have been listed for final hearing on 17-10-2006 and he prays for linking this matter. 4. On a careful consideration, we notice that in similar matters, the stay applications have been allowed in the light of the cited judgment. Therefore, the stay application is allowed unconditionally granting waiver of pre-deposit of tax and penalty. Appeal to come up with similar linked matters on 17th October, 2006. (Pronounced and dictated in open Court)
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2006 (8) TMI 619
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... ... ..... tely after the incident at the place of occurrence. The prosecutrix had changed her version from time to time. She began with alleging commission of the offence of rape by all the accused who faced trial, whereas in her deposition before the court she stated that only Karam Chand and Ashok Kumar had committed rape on her. The statement of the prosecutrix does not inspire confidence to reach to the conclusion that the accused-appellant was present at the place of incident right from the very beginning to infer any pre- concert of the appellant with other accused persons to commit rape. In these circumstances, we feel that the accused- appellant is entitled to the benefit of doubt. Hence, in the light of above discussion, we set aside the order of the Session Court as also that of the High Court convicting the accused-appellant under Section 376, IPC. The appeal is, accordingly, allowed. The accused-appellant shall be set at liberty forthwith if not required in any other case.
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2006 (8) TMI 618
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... ... ..... criminal case. Therefore, it does not appear that the petitioner is likely to commit any offence while on bail. The twin conditions of Section 37 of the NDPS Act having been satisfied, the petitioner is entitled to be released on bail. 27. The petitioner is directed to be released on bail on his furnishing a personal bond in the sum of ₹ 50,000/- with one surety of the like amount to the satisfaction of the Trial Court. 28. It is made clear that the foregoing discussion of the case and the views expressed are only based on broad probabilities and are tentative in nature and only for the purpose of the exercise that has necessarily to be undertaken while considering an application for bail under Section 37 of the NDPS Act. These views shall not have any bearing on the merits of the case and the Trial Court is free to decide the case on the basis of evidence adduced at the trial without being prejudiced, in any manner, by these views. This application stands disposed of.
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