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Showing 81 to 100 of 887 Records
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2008 (1) TMI 924
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... ... ..... t any appeal arising out of an assessment under Section 17D can be maintained only on payment of the entire tax amount. 4. It is true that the petitioner has placed reliance on the Budget Speech, 2007. A reading of the extracted portion, does not lead to the inference that the requirement of Section 17D(5) is only in so far as ex parte orders of assessment are concerned. Even otherwise, in view of the clear statutory provision, I do not think that the Court should be guided by the Budget Speech. The provisions of the Circular No. 17/07 dated 12.4.2007 also does not support the case canvassed by the petitioner. 5. In this case, petitioner themselves admit in paragraph 5 of the writ petition that they have not paid the disputed tax estimated by the Fast Track Team. If that be so, the requirement of Section 17D(5) remains unsatisfied and the Tribunal is justified in declining to entertain the appeal filed by the petitioner. The writ petition is only to be dismissed and I do so.
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2008 (1) TMI 923
Waiver of pre-deposit - Held that: - Prima facie BSNL has paid service tax which were accepted by the Revenue, therefore, applicants have a strong case in their favour. Therefore, pre-deposit of duty and penalty is waived - petition allowed.
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2008 (1) TMI 922
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... ... ..... ibunal has not recorded any finding on the same. Mr. Shetty prays that the impugned order be set aside and the case be remitted to the Tribunal for a fresh decision on all the points raised in the appeal in accordance with law. Ordered accordingly. All contentions are left open. The Tribunal is directed to record its findings on the point which had been raised by the appellants including the applicability of the clarification issued by the Department with regard to Notification No.463/86-CE dated 09th December 1986 to Notification No.462/86-CE dated 09th December 1986. The appeals are allowed accordingly. C.A. NOS. 5092-5094 OF 2002 In the light of the order passed in C.A.Nos.1907-1909 of 2002 these appeals are also allowed as the question of re-computation of duty and penalty will depend upon the applicability of the clarification issued by the Department with regard to Notification No.463/86-CE dated 09th December 1986 to Notification No.462/86-CE dated 09th December 1986.
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2008 (1) TMI 921
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... ... ..... 377; 25 lakhs could not be made on the basis of statement. Addition has to be restricted with reference to the material found in the search. In the case of this assessee, the AO has quantified shortage of stock worth ₹ 16,36,855 and excess of stock at ₹ 1,06,617. We have already held in the earlier part of the order that in case of shortage, only GP addition can be made. Considering the GP rate of 35 per cent (not disputed before us) the addition on account of shortage of stock is restricted to ₹ 5,72,900. The addition on account of excess stock amounting to ₹ 1,06,617 is, however, confirmed. Thus, the total addition is restricted to ₹ 13,72,257 (Rs. 6,92,740 ₹ 5,72,900 ₹ 1,06,617). The order of the CIT(A) is modified accordingly and the AO is directed to assess the addition at ₹ 13,72,257. 13. In the result, the appeal in the case of M/s Pransukhlal & Sons is allowed while the appeals in other two cases are partly allowed.
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2008 (1) TMI 920
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... ... ..... be considered as a ground for acquittal. 22. It is also argued by counsel for the appellant that Test Form was not filled at the spot and was filled only on next day. There is no legal requirement that the Test Memo has to be filled at the spot on the same very day. The Test Memo can be filled on the subsequent day. Merely because the Test Memo has been filled on subsequent day, the case of the complainant cannot be doubted. 23. The argument of the counsel for the appellant is that statement of the appellant under Section 67 of the Act could not have been relied upon recorded as the appellant was, in police custody at the time when his statement under Section 67 of the Act was recorded. The case of the prosecution against the appellant has been proved by NCB independent of statement of appellant under Section 67 of the Act. He has not been convicted on the basis of his statement under Section 67 of the Act. 24. I find no merits in this appeal. The appeal is hereby dismissed.
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2008 (1) TMI 919
Waiver of pre-deposit - manpower recruitment agency - Held that: - by an order dated 11-12-2006 the Commissioner (Appeals) has given a categorical finding that if it is found on verification that the employees working on the rolls of the applicant have been diverted to undertake manufacturing activities of M/s. Bajaj Organic Chemicals Limited then the applicant has not rendered any services relating to Manpower recruitment as per section 65(68) of the Finance Act, 1994. On verification it has been so found - pre-deposit waived.
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2008 (1) TMI 918
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... ... ..... urts are bound and guided by the decisions of the Supreme Court and jurisdictional High Court, as also the views of other High Courts for taking a particular view. We, therefore, cannot place any reliance on this article howsoever persuasive it may be in his view, nor are we persuaded to differ with the views taken by Gujarat and Karnataka High Courts in aforementioned 2 cases by placing reliance on the article. 26. Learned counsel for appellant also placed reliance on a passage from Sampat Ayyangar as also decisions in CIT vs. Saraswati Kunj Co-operative House Building Society (2006) 205 CTR (Del) 633 (2006) 287 ITR 22(Del) and CIT vs. Nataraj Finance Corporation (1988) 69 CTR (AP) 15 (1988) 169 ITR 732 (AP). Having perused them, we do not find any good ground to place reliance on them in the light of our reasoning recorded supra. 27. In view of foregoing discussion, we find no merit in this appeal. As a consequence, the appeal fails and is accordingly, dismissed. No costs.
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2008 (1) TMI 917
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... ... ..... he part of some of the accused and accepted the same. The High Court did not bestow any consideration in this behalf. It also failed to take into consideration that even by-standers have been implicated in the matter. 24. Unfortunately, the High Court did not meet the reasonings of the learned trial judge which was its bounden duty. 25. Even the effect of the order dated 18.11.2003 passed by the High Court in the appeal preferred by Roshan was not taken into consideration. The said order attained finality. If Roshan was guilty of commission of an offence under Section 323 of the Indian Penal Code, we fail to see any reason as to how others could be held guilty for commission of the offence under Section 302 thereof. In any event, the judgment passed in favour of Roshan could not have been set aside indirectly which could not be done directly. 26. For the reasons above mentioned, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed.
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2008 (1) TMI 916
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... ... ..... ity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. 11. It is to be noted that the High Court itself has held that there was an attempt to rope in many persons and it did not find any merit or challenge to the discharge of the married sister and the brother. 12. Above being the position, the impugned order of the High Court cannot be maintained and is set aside. We make it clear that we have not expressed any opinion on merits so far as husband Jaswant is concerned. 13. The appeal is allowed to the aforesaid extent.
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2008 (1) TMI 915
Jurisdiction - power for levying tax or cess - adjudication or assessment order - It is inconceivable that the levy is valid but collection can be held to be impermissible. This is an irreconcilable situation.
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2008 (1) TMI 914
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... ... ..... zed pedestrian led, side-clamp, tractor, and side-loading trucks’. 12.3 It will, thus, be clear that motor vehicles like fire trucks, fork-lift trucks and crane trucks which are designed for special services, fall within the category of ‘motor trucks’ (also called ‘motor lorries’)." As far as JCBs are concerned, JCB is coming in the category of excavator and its main function is removing the soil or earth but at the same time, JCB’s another function is to carry or transport the removed soil and dump it at another site to discharge the function like transshipment and loading into another vehicle. In our opinion, for the purpose of rates of depreciation JCB can be treated as a motor lorry and hence eligible for higher rate of depreciation at 40 per cent. We, therefore, direct the Assessing Officer to allow depreciation at 40 per cent on JCBs in place of 25 per cent. 16. In the result, both the appeals of the assessee are partly allowed.
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2008 (1) TMI 913
Interpretation of Statutes - Date for consideration of the age of the accused applying section 6 of the Probation of Offenders Act, 1958 - Restriction on imprisonment of offenders under twenty-one years of age - imposition of punishment less than the minimum sentence prescribed by the statute -
C. K. Thakker, J. - HELD THAT:- In the present case, a certificate in the form of Scholar Record & Transfer Certificate is annexed wherein the date of birth of the appellant was shown as June 28, 1962. The certificate was not on record either before the trial Court or before the High Court. From the True Copy, it is clear that it is purported to have been issued by the Principal only on February 10, 2007. Thus, it cannot be said that there is credible evidence or trustworthy material that the appellant was less than 21 years of age at the time of commission of offence. In my considered opinion, such question cannot be permitted to be raised for the first time in this Court and I am in agreement with my learned Brother on that point.
Since the appeal can be decided on this ground, I refrain from expressing any opinion on the question dealt with and decided by my learned Brother on interpretation of Section 6 of the Act.
The appeal is accordingly dismissed.
P. P. Naolekar, J. - The decision interpreting various provisions of one statute will not have the binding force while interpreting the provisions of another statute. Section 6 of the Act has been construed by a 4-Judge Bench of this Court in Ramji Missar case [1962 (12) TMI 70 - SUPREME COURT] and that will have the binding force while interpreting the same Section in same statute and the decision of the Constitution Bench interpreting provisions of the 1986 Act and the 2000 Act would not be held to be a decision on interpretation of Section 6 of the Act.
Section 6 of the Act would apply to the accused who is under 21 years of age on the date of imposition of punishment by the trial court and not on the date of commission of the offence. If on the date of the order of conviction and sentence by the trial court the accused is below 21 years of age the provisions of Section 6 of the Act applies in full force.
That being the case, even if the date of birth of the accused is held to be 28.6.1962 as alleged by him in the petition, on the date of delivery of judgment of conviction and sentence on 26.7.1985 by the Additional District & Sessions Judge he was more than 21 years of age and thus was not entitled to the benefit under Section 6 of the Act.
The accused has not claimed benefit under Section 6 of the Act during the trial before the Additional District & Sessions Judge or before the High Court. Only material which was placed before the Sessions Judge or the High Court is the statement recorded of the accused appellant under Section 313 Cr.P.C. wherein the age of the accused was given as 20 years.
Hence, the appeal being devoid of any merit, is dismissed.
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2008 (1) TMI 912
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... ... ..... stified in not granting relief to the assesses in holding that the cases of Indian Bank and Rajendra Prasad Moody are not applicable after introduction of Sec. 14A of the Income Tax Act without considering the proviso to the said section”? 4. Having herd the counsel for the parties, were of the opinion that the tribunal did not consider the effect of proviso to the Sec.14A of the Act while considering the case of the assessee. If proviso to Sec.14A of the Act had been considered, we are of the opinion that the decision of the tribunal would have been different one. Therefore, we are of the opinion that without answering the question of law framed herein, we have to allow this appeal and remand the matter to the tribunal to consider the case of the assesses so far as it related to computation of expenditure under sec.14A of the Act. Rest of the order of the tribunal in remanding the matter to the assessing officer is un-disturbed. 5. Accordingly, this appeal is allowed.
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2008 (1) TMI 911
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... ... ..... dy, JJ. ORDER Appeal dismissed.
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2008 (1) TMI 910
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... ... ..... does not make it unconstitutional. Further, for valid reasons recorded at Paragraphs 6 and 7 in the order, the learned Single Judge rejected the Writ Petition holding that as the question of interpretation of provisions of Section 6A of the Act does not arise unless the matter comes up for examination in a proper manner, the Court cannot examine the assessment order for the purpose of interpreting provision, when the matter can go through various statutory authorities. Therefore, the learned Single Judge held that the prayer seeking for declaration for interpretation of the aforesaid provision in any particular manner is also not necessary and rightly rejected the petition. 4. We are in full agreement with the view taken by the learned Single Judge in this case. In our opinion, the impugned order does not call for interference in this appeal. For the reasons stated supra the appeal must fail as the same is devoid of merits. 5. Accordingly, the appeal is dismissed.
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2008 (1) TMI 909
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... ... ..... tion and no manufacture was involved. The assessee therefore wrongly claimed and therefore to that extent there was concealment of income. 4. The rival contentions in regard to the above have been very carefully considered. In our opinion, in the light of the Supreme Court decision in CIT v. N.C. Budharaja and Co. 1993 204 ITR 412 (SC), wherein the assessee claimed construction of a dam also to be a manufacture, the assessee's impression that the activity of providing of air-conditioning systems that required all the activities to be carried out at the site could be termed as manufacture, cannot be said to be out of place. The genuine impression of the assessee could not lead to concealment. The activity may be found to be mere construction in the instant case, apparently on merits the assessee did not challenge the findings. However, that does not mean that it automatically implies concealment on the part of the assessee. The penalties quashed. 5. The appeal is allowed.
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2008 (1) TMI 908
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... ... ..... rect authority on the point. No other judgment of any High Court including the jurisdictional High Court taking a contrary view was brought to our notice. In these circumstances, respectfully following the judgment of the Gauhati High Court, we hold that even if it is assumed for the sake of argument that the AO having jurisdiction over the searched persons has recorded the requisite satisfaction under s. 158BD, no notice having been issued under s. 143(2) the block assessment proceedings are bad in law. 11. Thus, the first two additional grounds are allowed and it is held that the block assessment under s. 158BD is invalid. In the view we have taken, it is not necessary to examine the other grounds impinging on the ground of additions made. 12. In the result, the appeal of the assessee is allowed with no order as to costs. Since the block assessment itself is held to be invalid, the appeal by the Department does not survive for consideration. It is dismissed as infructuous.
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2008 (1) TMI 907
Reopening of the assessment - issued notice u/s 148 - escapement of income - mere change of opinion - HELD THAT:- There is nothing to suggest anything in the reasons or note recorded by the AO that there is an independent examination of the material collected by the audit party nor is there any independent conclusion arrived at by the AO. In fact, the reasons itself do not make any reference to the objection of the audit but it is only the note that makes a reference and the note merely states a fact that an objection has been raised. There is nothing to suggest from the language of the note that the AO had applied his mind to the contents of the audit objection before issuing a notice u/s 148 of the Act. On the contrary, the note suggests that the notice was issued mechanically as a result of the audit objection.
We find that there is no independent application of mind by the AO for the purposes of issuing a notice under section 148 of the Act.
In our opinion, no substantial question of law arises - Appeal is dismissed.
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2008 (1) TMI 906
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... ... ..... urther shows that the said amount of ₹ 2 lakhs was excluded by the assessee company itself while computing the profits of the business for the purpose of computing deduction under s. 80HHC. The error as allegedly pointed out by the learned CIT in the computation of deduction under s. 80HHC allowed by the AO thus was factually incorrect and in our opinion, there was no such error in the order of the AO in allowing the deduction under s. 80HHC to the extent of ₹ 70,60,279 much less an error prejudicial to the interest of the Revenue. Keeping in view the reasons given above, we hold that there were no errors committed by the AO while passing the order of assessment dt. 30th March, 2005 as alleged by the learned CIT calling for revision of the said order under s. 263. In that view of the matter, we set aside the impugned order passed by the learned CIT under s. 263 and restore the order of assessment passed by AO. In the result, the appeal of the assessee is allowed.
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2008 (1) TMI 905
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... ... ..... . 80HHC of the IT Act ? o p /o p (iii) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in setting aside the order of CIT(A) and holding that the assessee is entitled to deduction under s. 32AB inclusive of income assessable under the head ‘Income from other sources’ ?" o p /o p Insofar as question (1) is concerned, the same is covered by the judgment of the Supreme Court in CIT vs. Indo Nippon Chemicals Co. Ltd. (2003) 182 CTR (SC) 291 (2003) 261 ITR 275 (SC). o p /o p Insofar as question No. (2) is concerned, the same is covered by the judgment of the Supreme Court in CIT vs. Lakshmi Machine Works (2007) 210 CTR (SC) 1 (2007) 290 ITR 667 (SC). o p /o p Insofar as question No. (3) is covered by the judgment of the Supreme Court (sic-Bombay High Court) in CIT vs. Parle Biscuits Ltd. (2006) 203 CTR (Bom) 237 (2006) 282 ITR 547 (Bom). The questions of law as framed would not arise. Consequently appeal dismissed. o p /o p
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