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Showing 81 to 100 of 651 Records
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2006 (8) TMI 617
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... ... ..... . Thus, we find that the impugned assessment is completely based on preponderance of probabilities. There is no material evidence with the Assessing Officer showing that the assessee in fact has made any cash payment to the builder over and above the cost of flat. It is well settled law that no addition can be made on the basis of probabilities. In view of the above and considering the facts of the case in its entirety, we do not find any infirmity in the order of the learned CIT (A) in deleting the addition. Thus, the Revenue's appeal fails.” Whether the assessee has paid 'on money' or not for purchase of the flat is basically a question based on finding of fact. The CIT (A) as well as the Tribunal have found that mere assumption on statement of the builder, no addition can be made. In view of the aforesaid admitted facts, no interference is called for. No substantial question of law does arise in the appeal. The appeal is dismissed at the admission stage.
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2006 (8) TMI 616
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... ... ..... ected. In the present case, it is seen that the returns were filed under protest, the assessments were made under protest and the payments of tax were also made likewise. None of these is a valid protest. A return filed in terms of a statutory provision is one filed voluntarily in the eye of law. Any protest in this regard is invalid. Every self-assessment is voluntary and there is no scope for protest in this regard. Payment of tax so assessed is also a voluntary payment. Hence the protest, registered by the assessee was lightly ignored by the original authority. When the impugned order was passed by the Commissioner (Appeals), the Apex Court’s judgment in Gujarat Ambuja Cements (supra) was available but not cited before him. His order following the Apex Court’s judgment in L.H. Sugar Factories (supra) cannot be sustained. 4. For the reasons already recorded, the impugned order is set aside and this appeal is allowed. (Dictated and pronounced in open Court)
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2006 (8) TMI 615
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... ... ..... not been received from railways cannot be considered as taxable, so their appeal have been rejected. 2. Heard both sides in the matter. 3. The appellants have already discharged Service Tax on the amounts received from railways in respect of ‘railway siding charges’. The question as to whether the approvals shown in the balance sheet are required to be charged with Service Tax and whether it is a taxable service? The appellants admittedly have not received this amount, prima facie, the same is not to be taxed till such time the amounts are received by the assessee. Further point raised is that the ‘railways siding charges’ have been collected by railways, who are liable to pay the tax. This point is also a legal contention, which has a merit and hence, the stay application is allowed granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. Appeal to come up in its turn. (Pronounced and dictated in open Court)
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2006 (8) TMI 614
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... ... ..... t on 2nd December, 2005, the letter received from the Registrar of the Tribunal was put to learned counsel for the appellant who took time to verify with the postal authorities and produce a certificate to show whether or not the letter was actually delivered to the appellant. Despite the fact that several months have gone by since then, learned counsel for the appellant has not placed anything before us to show that the letter sent by Registrar of the Tribunal was not received by the appellant. 10. Under the circumstances, we are of the view that the appellant has not come with the correct facts before us and has also not explained the delay of about one and a half years in filing the appeal. 11. In any case as noticed above, the claim was refunded to the respondent. We do not find any merit in the application for condonation of delay and the same is dismissed. 12. Since we have declined to condone the delay in filing the appeal, the appeal is also dismissed.
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2006 (8) TMI 613
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... ... ..... ailable to the Commissioner as well. If the Tribunal is allowed to find out the grounds available to the Commissioner to pass an order under section 263(1) of the Act, then it will amount to a sharing of the exclusive jurisdiction vested in the Commissioner, which is not warranted under the Act. It is all the more so because the revenue has not been given any right of appeal under the Act against an order of the Commissioner under section 263(1) of the Act." From this view point also, the CIT’s order in the present case, which has the effect of re-opening the entire assessment cannot be allowed to be sustained. 32. Thus, as the order under section 263 has not been found to be maintainable on any of the three grounds which the ld. CIT has finally picked up for decision against the assessee, the only consequence that follows is that the order under appeal is liable to be declared as wholly without jurisdiction and I hold so. 33. In the result, the appeal is allowed.
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2006 (8) TMI 612
Applicability of "Section 44C or 37(1)" - In respect of head office expenditure - HELD THAT:- In the absence of the original file showing that the revenue did not file any appeal by taking a conscious decision against the decision of the Calcutta High Court in the case of Rupenjuli Tea Co. Ltd.(supra), we assume that the revenue had accepted the ratio of the aforesaid case in Rupenjuli Tea Co. Ltd.(supra) and accordingly answer the question regarding the applicability of Section 44C of the Act against the revenue and in favour of the assessee.
Learned counsel appearing for the revenue does not challenge that in the absence of applicability of Section 44C of the Act, Section 37(1) would apply. Accordingly, we answer question No.2 as well against the revenue and in favour of the assessee regarding the applicability of Section 44C of the Act as well as allow the HO expenditure u/s 37(1) of the Act.
The Appeals are dismissed accordingly.
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2006 (8) TMI 611
Application filled before the Forest Tribunal u/s 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ("the Act") - seeking a declaration that the application scheduled property was not a private forest liable to be vested in the Government - claimed exemption u/s 3(2) - High Court exercise its jurisdiction invoking Article 215 of the Constitution of India - Whether the view of the Forest Tribunal that it could not review the order in exercise of power u/s 8B of the Act, notwithstanding the dismissal of the appeal from its decision at the stage of admission, need not be considered at this stage - HELD THTA:- It was not a case of the appellant merely putting forward a false claim or obtaining a judgment based on perjured evidence. This was a case where on a fundamental fact of entitlement to relief, he had deliberately misled the Court by suppressing vital information and putting forward a false claim, false to his knowledge, and a claim which he knew had no basis either in fact or on law. It is therefore clear that the order of the Forest Tribunal was procured by the appellant by playing a fraud and the said order is vitiated by fraud. The fact that the High Court on the earlier occasion declined to interfere either on the ground of delay in approaching it or on the ground that a Second Review was not maintainable, cannot deter a Court moved in that behalf from declaring the earlier order as vitiated by fraud.
The High Court, as a court of record, has exercised its jurisdiction to set at naught the order of the Forest Tribunal thus procured by the appellant by finding that the same is vitiated by fraud. There cannot be any doubt that the court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the court. The appellant has invoked our jurisdiction under Article 136 of the Constitution of India. When we find in agreement with the High Court that the order secured by him is vitiated by fraud, it is obvious that this Court should decline to come to his aid by refusing the exercise of its discretionary jurisdiction under Article 136 of the Constitution of India.
The plea that the second review was not maintainable, that the Division Bench could not have ignored the earlier orders of the High Court dismissing the appeal at the stage of admission and the dismissing of the petition for condonation of delay in filing the first review, are all of no avail to the appellant. In this case, the Forest Tribunal had also been moved by way of review and that tribunal refused to exercise its jurisdiction u/s 8B of the Act and nothing stands in the way of the High Court setting aside that order on a finding that the original order from the Forest Tribunal was secured by playing a fraud on the Tribunal.
Equally, nothing stood in the way of the High Court reviewing the judgment in O.P. in which a mandamus was issued by the High Court to restore possession of the application schedule property to the appellant. Similarly, nothing stood in the way of the High Court in allowing O.P. filed by a body of citizens challenging the restoration of 20 acres of virgin forest to the appellant in presumed enforcement of the order in O.A. and passing the necessary order nullifying the original order.
The fact that the High Court has chosen to review the earlier order on the petition for condonation of delay in filing the first review petition and then to exercise the power of review cannot be of any moment in the light of the what we have stated. In any event, as we have indicated, this is a fit case where we should clearly decline to exercise our jurisdiction under Article 136 of the Constitution of India to come to the aid of the appellant to secure to him the fruits of the fraud practiced by him on the Forest Tribunal and the High Court. Thus, we find no merit in the argument that the High Court had exceeded its jurisdiction in setting aside the order of the Forest Tribunal at this distance of time.
We thus confirm the decision of the High Court and dismiss these appeals with costs. We hope that this judgment will act as an eye opener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims, (obviously now they are belated claims) for exemption or exclusion u/s 8 of the Act. It behoves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identities of the lands sought to be claimed, while entertaining applications u/s 8 of the Act.
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2006 (8) TMI 610
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... ... ..... irm commitments having been obtained by the assessee. 8. However, we need not go further into this issue because the question whether the assessee was entitled to depreciation or not has become final with the assessee having accepted the order passed by the CIT(A). We have discussed this issue only with reference to the contention raised by the assessee to the effect that there could be two opinions in the matter and, therefore, the provisions of section 271(1)(c) of the Act could not have been invoked by the revenue for levying penalty on the assessee. 9. We find that under these circumstances and in view of the fact that a plausible argument was raised by the assessee, the Tribunal was right in holding that the revenue did not make out any case for initiating penalty proceedings under the Act on the ground that the assessee furnished inaccurate particulars. 10. We are of the view that no substantial question of law arises for our consideration. 11. The appeal is dismissed.
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2006 (8) TMI 608
Whether the investigating agency had not obtained previous sanction of the Central Government or of the State Government or of the District Magistrate as required by Section 196(1-A) Cr.P.C., the initiation of criminal proceedings against the respondent is bad in law and consequently it was liable to be quashed?
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2006 (8) TMI 607
Determination of rate of profit - work of civil construction in Public Works Department - rejected books of account - exceeds turnover - whether the assessee was entitled to the benefit of section 40(b)( iv) and (v) - salary and interest paid to the partners - HELD THAT:- In no case, simply because the turnover is more than ₹ 40 lakhs or the assessee is performing civil construction work for Public Works Department, neither the rate of profit could be determined nor it could be taken to be less nor it could be reduced nor could be arrived at on presumptions.
Since the Assessing Officer as well as the CIT(A) as also the ITAT has not recorded any finding based on any material, and the findings recorded are merely on surmises and conjectures or, so to say, on purely guess work and imagination of the authorities, as it has not been brought to our notice that any such rate of profit can be assessed under the rules or any law in this manner, the findings of rate of profit, therefore, cannot be sustained and are liable to be set aside, and the matter deserves to be remanded to the assessing authority for re-determination thereof.
It was the specific case that these partners were working partners and they were entitled to salary and interest, as per terms of the deed in accordance with section 40(b) of the Act. In the absence of any material having brought by the revenue in rebuttal and more so when no such plea was ever taken or raised in the appeal, as also no substantial question of law has been framed in this regard, the aforesaid plea is bound to fail.
Even before the Tribunal, it appears that no such question was raised. We have been informed by the learned counsel for the parties that for the last two assessment years, the Assessing Officer himself has granted deductions treating the firm to be entitled for the same.
Thus, we allow the appeals in part and remit the matter to the Assessing Officer for only recording findings on question (1) referred to above, namely, to determine the rate of profit on the basis of the evidence/material on record, after affording opportunity of hearing and also giving opportunity to the parties to lead such evidence, as may be necessary, in the light of the observations. The findings regarding availability of deductions u/s 40(b)( iv) and (v) stand concluded and this question shall not be opened by the Assessing Officer.
All the appeals are disposed of accordingly.
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2006 (8) TMI 606
Whether the petitioners could not prove anything that these respondents have interfered in the course of justice and they misused the privilege of bail extended to them?
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2006 (8) TMI 605
Whether order of detention passed under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on January 27, 2006 valid?
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2006 (8) TMI 604
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... ... ..... nt of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd. Therefore, the original authority is directed to re-compute the duty on this base. 13. Yet another submission of the learned Counsel of the appellant is that there is no warrant for imposition of any penalty in the present case, inasmuch as it remains settled that this is not a case involving any suppression of facts or mis-declaration of facts so as to attracted duty demand during the extended period under Section 11A as well as penalty. It is also being pointed out that dispute is purely legal in character. There is merit in this contention. The Hon'ble Supreme Court has upheld this Tribunal's earlier order in relation to limitation in the remand order. Also, the dispute is purely legal. In these circumstances, penalty clearly is not warranted. Accordingly, penalty under both the impugned orders is set aside. 14. Both appeals are ordered in the above terms.
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2006 (8) TMI 603
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... ... ..... ce. That aspect has not been considered in the impugned order, passed in the Review Petition. Therefore, the case of the petitioner that there is an apparent mistake in the impugned order of the Tribunal dated 28.06.2004. If it is so, then in that eventuality, the petitioner should approach the Tribunal with a case that the issue in question is directly covered by the decision of Their Lordships and there is apparent mistake in the order of the Tribunal. The appropriate course in such cases is to approach the Tribunal for necessary correction / modification in the impugned order. The petitioner prays for withdrawal of this petition with liberty to file Misc. Application before the Tribunal in the order. Considering the submissions, liberty is granted that in case the petitioner files Misc. Application in the impugned order, that be disposed of in accordance with law. The petitions stand disposed of accordingly. Registry to place a copy of this order in all connected matters.
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2006 (8) TMI 602
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... ... ..... er the risk of accident/death and the payment of compensation as per Rules. In case of any accident etc., opp. party has been held responsible and on account of negligence or any act of driver or Conductor, if Company suffers any loss, same had to be indemnified. In case of failure to provide the vehicle, the opp. party was liable for penal action. The aforesaid terms of the contract clearly shows that the effective control over the vehicles were always remain with the opp. party and had never been passed on to the Companies. All the legal consequences arising from the use of the vehicle were the responsibility of the Opp. Party. At no point of time, there was a complete exclusion of legal rights to use such vehicles by the transferor. Thus, the present case on the aforesaid facts does not fall under the transfer of right to use the goods, in view of the law laid down by the Apex Court in the aforesaid cases. 19. In the result, revision fails, and is, accordingly, dismissed.
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2006 (8) TMI 601
Whether in terms of the proviso appended to Rule 16 (2A), the State of Assam could not have accepted the offer of voluntary retirement?
Whether the offer of the appellant to retire voluntarily could have been accepted only prior to 1.8.1997 in terms of the circulars issued by the Central Government, as the employee has a right to withdraw the offer even after acceptance by the State Government?
Whether the respondents being public authorities, were bound to follow the Rules laid down by the Central Government which alone could have applied its mind to the request of the appellant and not the State of Assam?
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2006 (8) TMI 600
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... ... ..... expressions “directly or indirectly” and “in any manner” occurring in the definition of “Clearing & Forwarding Agent” applied only to the activity of clearing and forwarding. Clearing and forwarding had a very specific connotation in the context of movement of goods from the supplier to their destination and agents undertaking clearing and forwarding operations might not have been concerned with procurement of orders for the goods which were cleared and forwarded. Therefore booking orders for the principal by an agent on payment of commission basis would not amount to providing services as “clearing and forwarding agent”. 9. We find that the ratio of the above ruling of the Larger Bench in the case of L & T Ltd. v. CCE, (supra), squarely applies to the facts of the present case. In this view of the matter, we set aside the impugned order and allow the appeal. (Order portion pronounced in the open Court on 25-8-06)
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2006 (8) TMI 599
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... ... ..... e of Tamil Trading Corporation v. CCE, Tuticorin, Chennai Bench has clearly recorded that the expression "his factory" should be interpreted to mean the factory where the importer wants to utilize the imported goods in terms of the Notification. It has been held that the department cannot insist on ownership of the factory and deny registration for the purpose of the Notification. The Tribunal has relied on the ruling of Bangalore Bench rendered in the case of CCE, Bangalore v. Electronic Research Ltd., (supra) wherein it has been held that literal meaning of statute should be abandoned, if it leads to unjustified results. The denial of registration has been set aside by the Tribunal in the case of Tamil Trading Corporation (supra). This ration will clearly apply to the facts of the case. Relying respectfully the ratio of this judgment, the impugned order is not legal and proper and the same is set aside by allowing the appeal. Thus, both these appeals are allowed.
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2006 (8) TMI 598
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... ... ..... heard both sides in the matter. 4. The learned Counsel submits that the Gujarat High Court in the case of Vimal Enterprises v. UOI has overruled the ratio of the Larger Bench judgment rendered in the case of Balmer Lawrie & Co. Ltd. (supra) and therefore, the order passed by the Commissioner is just, legal and proper in the light of the cited Gujarat High Court judgment. 5. We have carefully considered the submissions and notice that the Commissioner has relied on large number of judgment to grant the benefit of modvat credit. The Revenue has relied on the Larger Bench judgment of Balmer Lawrie & Co. Ltd., however, this judgment has been set aside by the Gujarat High Court in the case of Vimal Enterprises (supra) and have held that the invoices issued by non-registered dealer is also valid for the purpose to grant the benefit of modvat credit. In view of this judgment, there is no merit in this appeal and the same is rejected. (Pronounced and dictated in open Court)
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2006 (8) TMI 597
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... ... ..... , JJ. ORDER Appeal dismissed.
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