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Showing 61 to 80 of 623 Records
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2007 (1) TMI 591
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... ... ..... Order-in-Original. He has given a finding that there was no mala fide intention to evade payment of service tax. In view of the cited judgments, the appellants have strong case for granting waiver of pre-deposit of the amount. The stay application is allowed unconditionally by granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. The appeal to come up for hearing in its turn. Stay Application No. 184/2006 in Appeal No. 298/2006 6. In this stay application, the appellant is seeking waiver of pre-deposit of penalty of ₹ 18,00,000/- under Section 78 of the Finance Act, 1994, besides penalty of ₹ 200/- per day under Section 76 of the Act. The issue is identical one as decided in the above matter. Hence the stay application is allowed by granting waiver of pre-deposit of the amount and staying its recovery till the disposal of the appeal. The appeal to come up for hearing in its turn. (Pronounced and dictated in the open court)
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2007 (1) TMI 590
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... ... ..... him to examine the assessee’s claim that there is factually a nexus between the interest paid and received and take a fresh decision in the light of the Special Bench Order. The assessee shall be given adequate opportunity of being heard decision is taken. These grounds are decided accordingly." Although the Tribunal has followed Lalsons Enterprises v. Dy. CIT 2004 89 ITD 25 (Delhi) (SB) and held that netting should be allowed, it has remitted the matter to the Assessing Officer ‘to enable him to examine the assessee’s claim that there is factually a nexus between the interest paid and received and take a fresh decision. . . .’ 3. We find no reason to interfere with the directions given by the ITAT, which is consistent with the decision rendered by us today in the batch of the appeals of which the present appeal forms part. Needless to add, the Assessing Officer will proceed in accordance with our judgment. 4. The appeal is accordingly dismissed.
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2007 (1) TMI 589
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... ... ..... d adopted the cost as on 1.4.1981 at ₹ 4 lakhs per acre. This claim of the assessee has not been controverted by the Assessing Officer. There is also no material produced to show that the value of ₹ 4 lakhs taken by the Assessing Officer in other cases had been reduced by the authorities u/s 163. Before the CIT (A) the Assessing Officer could also not given any justification for adopting different values for different assessees in the same place. No material has been produced before us also in support of any lower value as on 1.4.1981. We, therefore, see no error in the order of CIT (A) adopting the value at ₹ 4 lakhs per acre. The order of CIT (A) is therefore upheld." 10. The facts in the present case being identical, respectfully following the earlier decision of the Tribunal, we uphold the order of Ld CIT (A) and dismiss the appeal filed by the revenue. 11. In the result, both the appeals are dismissed. 12. Pronounced in the open court on 12/01/07.
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2007 (1) TMI 588
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... ... ..... lanations, the Commissioner has clearly exposed the findings to serious doubt. 6. We do not consider it necessary or appropriate to go into the evidence in great detail or to give findings on them, as we are proposing to remand the case for a fresh consideration to the Commissioner. Suffice it to say, the evidence was capable of correlation and a reasonable finding could be reached only after doing the same. We may just note that one of the sales mentioned in the challan at Annexure 8 to the show cause notice was to BSES (serial No. 21 ) at a price of over ₹ 25 lakhs. The assessee could have shown from its records as to how the consignment in question was cleared from the factory. And the Commissioner should have insisted on it before reaching a conclusion. 7. In the result, the impugned order is set aside and the case is remanded to the Commissioner (Appeals) for a fresh decision. 8. The appeals are ordered by way of remand. (Dictated and pronounced in the open court)
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2007 (1) TMI 587
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... ... ..... he land was found to be banjar kadim. 3. We have heard the learned counsel for the parties and do not find any legal infirmity in the view taken by the Tribunal. There are categorical findings that the Assessing Officer did not recover any document from the possession of the assessee nor the assessee was ever confronted with the seized material. The explanation of the assessee was called, which he replied and there was no mention of any seized material referred to by the Assessing Officer despite the fact that the seized material was transferred to the Assessing Officer by the Deputy Commissioner, Income-tax, Range-II, Jalandhar. It is in these circumstances that we find that the view taken by the Tribunal is fully supported by the judgment of Hon’ble the Supreme Court in the case of Kishinchand Chellaram v. CIT 1980 125 ITR 713. There is no substantial question of law which would warrant admission of the appeal. Accordingly, the appeal fails and the same is dismissed.
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2007 (1) TMI 586
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... ... ..... the compensation works out to ₹ 4,68,000/. The same shall carry interest 6 p.a. from the date of claim till the date of actual payment. It is stated that a sum of rupees four lakhs has been deposited pursuant to the order dated 4.4.2005. Balance shall be deposited along with interest within two months from today. Out of the total amount, 80 shall be kept in fixed deposit in a nationalised bank initially for a period of five years. But no withdrawal shall be permitted before the expiry of period. However, monthly interest shall be paid to the claimants. The minor respondents shall be represented by their mother. Separate fixed deposits shall be made for respondent no.1, respondents 2 and 3 represented by the mother (respondent no.1) and the respondent no.4. The percentage of fixed deposit shall be as follows - Respondent No.1 - 20 Respondent Nos. 2 & 3 - 35 (each) Respondent No.4 - 10 The appeal is allowed to the aforesaid extent. There will be no order as to costs.
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2007 (1) TMI 585
Rejection of books of accounts - Held that:- Appeal dismissed. Carefully considering the order of the Tribunal which is the last fact-finding authority there were relevant considerations and relevant material on the basis of which the books of the assessee were rejected. The Tribunal has given various reasons for upholding the rejection of the assessee's books. For example, there was no verification of the raw materials used and the work done on job-work basis has not been verified.
The Tribunal also considered the assessee's submission regarding the difference in the production of 23 microns and 12 microns & observed that the appellant has nowhere mentioned that the chilling plant has ever remained closed and similar is the position with regard to the supply of electricity for labourers.
The High Court has considered these reasons and has not interfered with the findings of the Tribunal as these are findings of fact and hence the High Court, which could only interfere if there is an error of law, rightly rejected the revision.
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2007 (1) TMI 584
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... ... ..... ded that the demand is time barred as there was no intention to evade on the part of the appellants. This requires scrutiny of the correct legal position during the relevant period. 10. As the impugned order is not legal and proper for the reasons urged by the Revenue and also in view of the contentions of the party on account of time bar and want of jurisdiction to impose penalty of more than 25,000/- without Commissioner’s permission as provided under Section 78 of the Finance Act, 1944, we set aside the impugned order and remand the entire matter to the Original authority for de novo decision in the light of our above observations. All issues are kept open. The party should be given an opportunity of hearing. The Original authority shall decide the issue after observing the principles of ‘Natural Justice’. The de novo order should be issued within a period of three months from the date of receipt of this order. (Pronounced in the court on 29-1-2007)
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2007 (1) TMI 583
Cenvat/Modvat - Demand - credit availed on the common inputs - show cause notices - Caustic soda lye and hydrochloric acid as fuel - HELD THAT:- We are convinced that the demand is highly disproportionate to the credit availed on the common inputs which could be attributed to goods which have been cleared without payment of duty. We are not going to the merits of the decision of the Commissioner in so far as the same relates to dropping of the demand in the four show cause notices as the Department is not in appeal before us. We are inclined to accept the offer of the appellant company to reverse the entire credit attributable to the exempted product covered in the nine show cause notices and accordingly we set aside the order of the Commissioner confirming the demand in respect of the nine show cause notices with the direction to consider and accept their offer to reverse the entire credit on the common inputs i.e., caustic soda lye and hydrochloric acid.
The department shall redetermine the credit taken on the common inputs i.e., caustic soda lye and hydrochloric acid in so far as they relate to demand proposed in the 9 show cause notices. The assessee shall produce the necessary evidence in the form of chartered accountant's certificate for the relevant period. If any further credit is to be reversed, the same shall be reversed within four weeks from the date of receipt of the communication from the department
The appeal is allowed on the above terms.
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2007 (1) TMI 582
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... ... ..... f the business as per the provisions of Explanation (baa ) to section 80HHC?" 3. In the present case, we find that the ITAT erred in not first determining whether interest income was business income. The ITAT proceeded to straightway examine the question of nexus between the interest paid and the interest earned for the purposes of netting. On the facts of the present case, and in light of the judgment dated 12-1-2007, we hold that the interest received on FDRs, pledged for obtaining shipping loan/depository loan was not business income. Question (b) is answered accordingly. Consequently questions (a) and (c) are answered in the negative, i.e., in favour of the revenue and against the assessee. 4. The impugned order of the ITAT is set aside. The matter be sent to the concerned Assessing Officer for recomputing the deductions in the event that the appeal effect has already been given to the impugned order of the ITAT. The appeal is accordingly allowed in the above terms.
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2007 (1) TMI 581
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... ... ..... e apex court by the dismissal of the Revenue's appeal against the High Court's judgment. Further, in the case of HandR Johnson (India) Ltd. vs. CBEC 1998 (101) ELT 252 (Kar.) which was interpreted by the learned SDR to mean that cash discount was admissible only if it was actually passed on to customers, the Hon'ble Karnataka High Court has only directed the central excise authorities to keep in mind the decision of the Bombay High Court in Goodlass Nerolac Paints Ltd. as upheld by the apex court, while taking a final decision in the matter. The recent decision of the Tribunal in CCE, Mumbai-II vs. Indian Tool Manufacturers 2002 (147) ELT 1200 also holds that admissibility of cash discount is not restricted only to the extent actually passed on to the customers, following the Bombay High Court's judgment and the Karnataka High Court's judgment cited supra. 2. Following the ratio of the above judgments, we set aside the impugned order and allow the appeal.
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2007 (1) TMI 580
Narcotics laboratories - Re-testing provisions - 1500 grams of heroin were recovered - Two samples of 5 grams each were taken and sent to the CFSL Laboratory - contain 31.2% of diacetylmorphine - HELD THAT:- It is clear that there is no bar for an accused under the NDPS Act to move an application for re-testing of samples. There is also no bar on the court allowing such an application. At the same time, it does not mean that every such application moved by any accused under the NDPS Act ought to automatically result in the court allowing the same. The court has the power to allow or not to allow such an application.
If the court, upon considering the totality of circumstances, comes to the conclusion that re-testing would be necessary, then it ought to allow such an application. An illustration of a case where re-testing would be necessary is one given by the decision in Masoom Ali (supra) where the first test did not disclose the percentage content of diacetylmorphine and the second test became necessary for ascertaining the exact content so that the category of the offence u/s 21 of the NDPS Act could be ascertained.
Another situation where re-testing could be permitted is as given in Kailash Singh's case [1988 (12) TMI 344 - DELHI HIGH COURT] where doubts are created with regard to the tampering with the case property and or samples. In such a situation where legitimate doubts arise, the court may permit re-testing. A third situation may be where in the course of the trial it is indicated that there is a possibility that the sample sent for testing did not match the case property. This can be discerned sometimes by marked differences in colour or other appearance to the naked eye. In all such situations, it would be permissible for the court, if it so feels, to direct re-testing. These instances are merely illustrative. There may be other situations where it would be necessary for the court to direct a fresh sample being taken from the case property and being sent for testing if it feels that it would secure the ends of justice and help the court in arriving at the truth.
Thus, the impugned orders cannot be sustained. The same are set aside. The matters are remanded to the respective courts for consideration of the applications afresh. After hearing the counsel for the parties, the respective courts shall pass the orders in accordance with law and the parameters indicated above.
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2007 (1) TMI 579
Addition u/s 69 - documents found during the course of survey - assessment completed u/s 144 - whether the CIT was justified in assuming jurisdiction u/s 263 - violation of principles of natural justice - HELD THAT:- It is clear that the CIT, Bhatinda passed order u/s 263 in respect of both the issues which have already been considered and decided by the CIT(A) in appeal. May be that there was mistake on the part of the AO in working out the quantum of addition on account of unexplained investment and interest accrued/received on the undisclosed advances. But it cannot be said that the issues were not considered by the CIT(A) in appeal. In fact, the learned CIT(A) is vested with wide powers coterminus with that of AO. These powers also include enhancement of income. Now if the learned CIT(A) after referring to the entries was of the view that there was under-assessment, he could have exercised such powers and enhanced the income. But the CIT(A) on the contrary allowed partial relief. The fact remains that the issues on which CIT revised the order u/s 263 had been considered and decided in appeal by the CIT(A). Therefore, as per Expln. (c) to s. 263(1), the CIT, Bhatinda was not justified in assuming jurisdiction u/s 263 in respect of matters already considered and decided in appeal. Such action of the CIT was illegal and without jurisdiction. Therefore, the impugned order passed by the CIT is liable to be quashed on this ground itself. Accordingly, the order passed u/s 263 is quashed and the ground of appeal of the assessee is allowed.
From the facts discussed above, it is obvious that the show-cause notice issued to the assessee on 28th March, 2003 was served on the assessee on 29th March, 2003 asking for compliance on 31st March, 2003 at 10.30 A.M. Thus, effectively the assessee was allowed only one day's time for submitting its reply. The opportunity to be allowed to the assessee before passing an order under s. 263 has to be a reasonable and effective opportunity. It is not merely a formality. The various judgments, relied upon by the assessee and referred to above also support this view. In fact, the assessee had requested the CIT to allow sufficient time so as to enable it to file effective reply. However, this opportunity was denied to the assessee. Further, the assessee had also requested for supply of documents referred to in the show-cause notice. This was also denied to the assessee. Thus, it is obvious that the statutory requirement of allowing an opportunity of being heard has not been met by the CIT and the impugned order passed by the CIT violated the principles of natural justice. Thus, the impugned order also suffers infirmity on this account.
Thus, we quash the impugned order being illegal and without jurisdiction. The grounds of appeal of the assessee are allowed.
In the result, the appeal filed by the assessee is allowed.
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2007 (1) TMI 578
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... ... ..... Assessing Officer and the Commissioner of Income-tax (Appeals) in denying the bifurcation of aggregate of sale consideration received by the assessee between the land and building was not correct and in our considered opinion, the action of the assessee-company in computing the capital gain by apportioning the sales consideration between land and building was correct in view of the ratios laid down by various High Courts as discussed hereinabove and as per the terms and conditions of various agreements entered into by the assessee with the developer and the purchasers. We, therefore, set aside the order of the authorities below and accept the first five grounds raised by the assessee. 50. Ground No. 6 is consequential and, therefore, the same has to be computed accordingly. 51. Ground No. 7 is general in nature and, therefore, does not need any adjudication. 52. In the result, the appeal filed by the assessee is allowed. 53. Order pronounced in the court on January 31, 2007.
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2007 (1) TMI 577
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... ... ..... essee in the present case. Insofar as the assessee is concerned, the debt was written off as irrecoverable and must be presumed, unless the contrary is shown, to be a bad debt. 6. We may note that another Division Bench of this Court in CIT v. Morgan Securities & Credits (P.) Ltd. IT Appeal No. 1442/2006, dated 7th December, 2006 , concluded, on a reading of Circular No. 551, dated 23rd January, 1990 issued by the Central Board of Direct Taxes that there is no scope for debate that the provision of law that existed earlier had generated tremendous litigation on the question of allowability of a bad debt in a particular year. The Circular, the relevant paragraphs of which are 6.6 and 6.7, clearly indicates the intention of the Legislature to amend the statute so as to enable the assessee to write off a debt as irrecoverable and claim deduction thereon and thereby eliminate litigation on this score. 7. No substantial question of law arises for our consideration. Dismissed.
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2007 (1) TMI 576
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... ... ..... an Reddy, JJ. ORDER Appeal dismissed.
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2007 (1) TMI 575
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... ... ..... already filed the order is not very clear on this, except that it was stated on behalf of the respondent that the application will be considered in accordance with law. 10. On the facts of the present case, it seems that returns for the period in dispute were not filed by the petitioner although it had filed its returns for the subsequent period. Learned counsel for the petitioner states, relying on the decision in M/s. Bharat Industries Works, that the petitioner will file the returns for the period in dispute within six weeks from today. If that is done, the application already filed by the petitioner before the Settlement Commission will stand revived and should then be considered on merits. 11. Accordingly, liberty is granted to the petitioner to file its returns for the period in dispute within six weeks from today. If that is done, the Settlement Commission will consider the application of the petitioner on merits. With this, the writ petition is disposed of.
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2007 (1) TMI 574
Disallowance of expenditure u/s 37 - incurred on replacing electricity meters - ''Revenue Or Capital''- meters are an integral part of the assessee's distribution network Or Not - generation and distribution of electricity - installed new meters with new consumers as well as new meters with old consumers - HELD THAT:- The assessee's entire plant comprised of generation systems, like boiler and turbines, plant and machinery used for transmission and distribution; like cable wires transformers, etc., and meters which finally measured the quantum of electricity supplied. In the course of business some of the meters of existing customers were faulty, burnt out and got defective, as a result of which they were not recording proper consumption. The assessee's network cannot function without these meters. So, these are integrated part of distribution system. In case defective meters are not replaced, the assessee would have to bear the damages. The distribution losses have been wide spread concern in the energy sector. For the purpose of mitigating these problems, faulty meters require not only to be replaced, but replaced by tamper-proof electronic meters. The meters are, therefore, an integral part of the assessee's distribution network, which is a main business of the assessee company.
It is not in dispute that the expenditure was incurred for replacement of faulty meters of its existing customers. The said expenditure was incurred by the assessee for increasing the efficiency of its business. It is constant and regular requirement. Thus, the expenditure incurred was not only for preserving and maintaining its existing distribution network but to increase effectiveness and generate more profits. Accordingly, this expenditure did not bring a new asset into existence or did not give the assessee a new or different advantage. Accordingly, the expenditure related to conducting of the business has rightly been held as revenue expenditure. This view is fortified by the decision of the Hon'ble Gujarat High Court in the case of Baroda Industrial Development Corporation Ltd. [1992 (3) TMI 48 - GUJARAT HIGH COURT].
Hence, the CIT(A) was justified to delete the disallowance of expenditure amount incurred on replacement of 1,85,000 defective electricity meters. We uphold the same.
As a result, the appeal filed by the Revenue is hereby dismissed.
Disallowance u/s I4A - dividends and interest on tax-free bonds - HELD THAT:- We are of the considered opinion that this issue Is covered in the case of Punjab State Industrial Development Corporation Ltd. vs. Dy. CIT [2006 (4) TMI 187 - ITAT CHANDIGARH], wherein It was held in this case that when the income such as dividend is taxable under the head Income from other sources', only the expenses referred to in s. 5 can be deducted to arrive at the net income and there is no justification to deduct expenses on estimate basis or in proportion of receipts shown by the assessee from various sources. It was also held that when the AO has not placed any meterial on record to controvert or reject the contention of the assessee that no expenditure was incurred for earning dividend income, there was no justification on the part of the AO to deduct proportionate management expenses or interest or other expenses while computing dividend income for the purpose of allowing deduction u/s 80M. For the same reasons, the assessee has to succeed in the present case also because in the present case also, neither the AO nor the CIT (A) has placed any material on record to controvert or reject the contention of the assessee that no expenditure was incurred for earning the impugned tax-free income by way of dividend and interest on tax-free bonds. Under these facts, we decide this issue in favour of the assessee by respectfully following this judgment of the Special Bench of the Tribunal. This ground of the assessee is allowed.
As a result, the appeal of the assessee is partly allowed.
Deduction u/s 80-IA - Payment of 'Standby charges' - HELD THAT:- The claim of the assessee was rejected by the lower authorities for the only reason that the liability has not crystalised but since as per this order of MERC, the liability was finalized at ₹ 91.40 crores and deduction for balance amount of ₹ 49.40 crores is also allowed by the AO in AY 2005-06, this amount of ₹ 49.40 crores should also be considered in this year to work out the sale price of power by Tata Power Company to the assessee and accordingly, the deduction allowable to the assessee u/s 80-IA should be recalculated. This amount has to be considered for rate purpose in this year only since it was not considered in asst. yr. 2005-06 when deduction of this amount was allowed and we are of the opinion that the same cannot be considered in that year because it will result in distorted figure of sale price of power in that year and hence we hold that it should be considered in this year and the AO should recalculate the deduction allowable to the assessee u/s 80-IA. This ground of the assessee is allowed.
As a result, the appeal of the assessee is allowed.
Interest u/s 244A - Whether the Department has to pay interest u/s 244A on account of excess payment of self-assessment tax - HELD THAT:-We find that it is settled legal position that if the dispute is regarding denial by the assessee of the liability to interest, the same is appealable. By the same yardstick, in the case where the Department denies the liability to pay interest, the same is also appealable.
As per the judgment of Hon'ble Andhra Pradesh High Court rendered in the case of Bakelite Hylam vs. CIT [1988 (2) TMI 46 - ANDHRA PRADESH HIGH COURT], it was held that the assessee has a right of appeal against an order giving effect to the order of an appellate authority as if such order was an assessment order itself. In the same case, it was also held that if there is total denial of the liability by the Revenue to pay interest on belated refund, an appeal lies against such total denial. In the present ease also, there is total denial by the Revenue to pay interest on self-assessment tax paid by the assessee. We are of the considered opinion that the facts in the present case are similar to the facts in that case and hence, this judgment covers this issue against the Revenue. Respectfully following this judgment, this issue is decided in favour of the assessee and this ground of the Revenue is rejected.
Whether the CIT(A) was justified in restricting the grant of interest only from the date the original assessment was framed and not from the date on which self-assessment tax was paid - HELD THAT:- In the present case, the Revenue has use of the self-assessment tax. It is but equitable that the assessee should be entitled to interest from that date. The assessee's contentions are supported by the decisions of the Mumbai Benches of the Tribunal in the case of Asstt. CIT vs . National Organic Chemicals Ltd. [1993 (2) TMI 48 - BOMBAY HIGH COURT] and in the case of Addl CIT vs . Grindwell Norton Ltd.[2005 (12) TMI 452 - ITAT MUMBAI]. In both these cases as refund was determined pursuant to an intimation u/s 143(1)(a) of the IT Act, 1961, the assessee was entitled to interest on the refunds so-determined in respect of the excess self-assessment tax paid u/s 244A of the Act. In such eventuality, the question of applying the Explanation below clause could have never arisen. Nevertheless, the Tribunal had directed the AO to grant to the assessee therein interest from the date of payment of self-assessment tax. On a parity of reasoning, the assessee in the present appeal should also be entitled to interest upto the date of the refund and not from the date of the assessment order to the date of refund as has been directed by the CIT (A). This Issue is decided in favour at the assessee.
As a result, the appeal of the Revenue stands dismissed and the appeal of the assessee stands allowed.
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2007 (1) TMI 573
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... ... ..... association." The history and nature of co-operative movement have been projected in very clear terms in the judgment. For the purpose of the present case, Sections 17, (Amalgamation, transfer, division or conversion of Societies), 20 (Cancellation of registration), 23 (Removal from membership in certain circumstances), 24 (open membership are relevant. Additionally, no member of respondent Nos.2 and 3 societies has made any complaint against respondent No.4 or its office bearers. That has significant impact on the controversy. The valuation done by Dr. Roshan H. Namavati demolishes the basis of the conclusion by the High Court regarding undervaluation. The appeals are, therefore, allowed. The observations made against various officials are uncalled for and have to be treated to have been deleted. The appeals are accordingly allowed with no orders as to cost. We record our appreciation for the fair and able assistance rendered by Mr. Altaf Ahmad, learned Amicus Curiae.
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2007 (1) TMI 572
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... ... ..... enditure on the basis of recasted Cash Book ignoring the fact that the books of account of the assessee were duly audited by a qualified Chartered Accountant under section 44AB of the Income-tax Act, 1961 leaving no scope of wrong posting." 10. We have heard both the parties and perused the materials placed before us. This ground is similar to the ground no. 2. As per original cash book there was negative cash balance of ₹ 3,804 on 12-05-2001. However, in the revised cash book furnished before the CIT(A) there was no negative cash balance on 12-05-2001. Wile disposing of the ground no. 2 of the revenue's appeal we have already held that the CIT(A) was justified in accepting the revised cash book. Since as per revised cash book, there was no debit balance in the cash book, accordingly we hold that the CIT(A) was justified in deleting the addition of ₹ 3,804. 11. In the result, revenue's appeal is dismissed. Order pronounced in the Court on 12-01-2007.
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