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Case Laws
Showing 161 to 180 of 722 Records
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2008 (12) TMI 675 - GUJARAT HIGH COURT
Interest on refund - Held that:- The interest which can be allowed to be paid to the petitioners is only from the final adjudication in the matter (as the decision of the High Court was not carried further in appeal), i.e. from 18-7-2005, whereas the department has already paid the amount of refund to the petitioners on 26-6-2005 and therefore, there is no question of passing any order of payment of interest to the petitioners. Otherwise also, for a substantial period, the amount was lying with the Consumer Welfare Fund and not with the department.
In the result, the petition fails. The petitioners are not entitled to receive any interest amount on the refund amount, as after the High Court dismissed the appeal of the department’s appeal on 18-7-2005, the finality was achieved by the controversy, whereas the department had already refunded the amount on 26-6-2005 and therefore, no relief can be granted to the petitioners.
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2008 (12) TMI 674 - MADRAS HIGH COURT
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the amounts of loans and advances outstanding written off by the appellant as not recoverable is not deductible while computing its income?
Whether, on the facts and in the circumstances of the case, the Tribunal ought to have appreciated that the appellant had properly evaluated and assessed the recoverability of the loans while arriving on the amount which in their opinion is not recoverable and hence was not right in holding that the debts written off have not become bad during the year ?
Held that:- The disallowance of the claim for write off is more on the basis of surmise and not on the basis of evidence available. Therefore, we remand the matter to the Assessing Officer who will examine whether after the assessee had taken possession of the unit, any recovery had been made.
As regards claim No. 1, “non-owner driven case”, the matter has already been remanded to the Assessing Officer to determine in which of the cases, the loans are recoverable and whether any guarantor has been proceeded against. In these circumstances, we are not answering the question of law and remanding the matter to the Assessing Officer .
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2008 (12) TMI 673 - KERALA HIGH COURT
Whether the Tribunal has acted perversely and illegally by not reversing the action of the Assessing Officer and the Commissioner of Income-tax (Appeals) in treating the advance rent as the cost of acquisition of tenancy rights and by remanding the matter back to the file of the Assessing Officer, when the issue arising for its determination was squarely covered by the decision rendered by the hon'ble Supreme Court in the case of CIT v. D. P. Sandu Bros. Chembur P. Ltd. [2005 (1) TMI 13 - SUPREME Court]?
Whether, on the facts and in the circumstances of the case, the Tribunal misdirected itself in law as well on facts in remanding the case to the Assessing Officer in the case of the appellant for the assessment year 1994-95 for the recalculation of capital gains tax when the cost of acquisition of tenancy rights was not ascertainable?
Whether the impugned order passed by the Tribunal remanding back the case to the Assessing officer for de novo adjudication fulfils the requirements of a speaking order?
Held that:- The contention of learned senior counsel for the appellant to be totally misconceived. In the present case, the judgment has been referred to in the order passed by the Tribunal. Even though the Tribunal may not have discussed the same in detail in the impugned order, however, still in terms of the provisions of article 141 of the Constitution of India, the law laid down by the hon'ble Supreme Court is binding on all the courts/ authorities subordinate to it and no court or authority is expected to overlook the same even if no judgment is cited in the order remanding the case to a lower authority. In the present case, the judgment is referred to in the impugned order. There may even be a case where a judgment on the issue may be delivered subsequent to the remand of the case, even that would be binding on the lower authority. Still further the matter has only been remanded back to the Assessing Officer for fresh determination with liberty to the assessee to lead any further evidence if requires. The issue has not been finally determined. In case still the issue is determined against the assessee, it have its remedies in accordance with law. No substantial question of law arises in the present appeal.
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2008 (12) TMI 672 - CESTAT BANGALORE
... ...
... ... ..... n fulfilled and the department is within its rights to demand the duty. 5. On a very careful consideration of the matter, we find that the goods viz., 21 machines are still within the bonded premises. Moreover, they all had been imported some time in 2002 onwards and it appears that they had actually been put to use. There is no evidence to show that these machineries were never put to use. Any machinery after some time will develop some trouble or other. They do not have eternal life. Prima facie, we are not convinced that revenue has a very strong case on merits. In these circumstances, we do not think it necessary to put the appellants to terms in this case. We order complete waiver of the dues demanded in the impugned order till the disposal of the appeal. It is worth mentioning that all the machineries are still in the bonded premises. No coercive measures should be taken till the appeal is decided. The stay application is allowed. (Pronounced and dictated in open Court)
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2008 (12) TMI 671 - ITAT MUMBAI
Payment made to retiring partner - diversion of income or not? - assessee claimed before the CIT(A) that the said payment was an overriding charge on the income, assets and properties of the firm under the partnership agreement and was admissible deduction while computing the taxable income of the firm - CIT(A) held that the payments were not allowable as a deduction in the hands of the firm.
HELD THAT:- Reading the terms of the agreement entered into between the parties on March 30, 2000, in continuation with the agreement entered in to on March 30, 2001, it transpires that certain events were taken care of as certainty by the parties. The retirement of Mr. Philip, Mr. Merchant was a certainty as provided in clause 24(b) of the deed dated March 30, 2000. Special terms were agreed between the parties in connection with the retirement of certain partners and in connection with the retirement of other partners of the firm. In respect of Mr. Philip and Mr. Merchant, as per clause 21(b) and (c) the maximum annual payments were provided as is evident from the perusal of our observations in the paras hereinabove.
In the circumstances, where the assessee has by its own motion acted on certain terms and conditions with regard to the payments to be made to specified persons on the happening of an event on a particular date, cannot be held to be a charge of its income. The parties cannot pre-determine every event and then claim that one of this event creates overriding charge, especially so when such events were within their control. we are of the view that the payments made to the retiring partners in consensus with the terms and conditions agreed upon between the parties to the agreement are in the nature of an obligation voluntarily agreed to and such an obligation cannot be diversion by an overriding charge. Accordingly, we hold that the payments made to the retiring partners is not allowable as a deduction while computing the profits of the firm being the payments made on capital account.
The expenditure incurred by the assessee by way of payments to the retiring partners is only an application of its income, which is on capital account and not allowable as a deduction. There is no merit in the claim of the assessee that it is diversion of income by overriding the charge.
We find support from the judgment of the apex court in CIT v. Sitaldas Tirathdas [1960 (11) TMI 17 - SUPREME COURT], wherein it has been held that only such payments " where the obligation to pay flows out of an antecedent and independent title in the former, it would be a case of diversion of income. But, where the obligation is self imposed as gratuitous, it is a case of application of income".
The payment made by the assessee to its retiring partners in the facts of the case before us is a self imposed obligation being gratuitous and hence application of income. Accordingly, we disallow the claim of the assessee in respect of the payments made to the retired partners. The ground of appeal raised by the assessee is thus dismissed.
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2008 (12) TMI 670 - ITAT MUMBAI
... ...
... ... ..... 220(2) of the Act. He submitted that no appeal is maintainable against the levy of interest as it is mandatory and consequential. Shri Sohrab Dastur, replied that the assessee was denying its entire liability to pay interest under section 220(2) of the Act and thus it appealed against the levy and the first appellate authority has rightly admitted the appeal. We have considered the rival contentions. The assessee in this case has denied its liability to pay interest under section 220(2) of the Act. It is well settled that when the assessee denies its liability to pay interest, the issue is appealable as held by the hon ble Supreme Court in the case of Central Provinces Manganese Ore Co. Ltd. v. CIT 1986 160 ITR 961. Thus, we do not find any merit in the arguments of the Revenue and dismiss the appeal filed by them. In the result, the appeal filed by the assessee is partly allowed and the appeal filed by the Revenue is dismissed. The order pronounced on this December 19, 2008.
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2008 (12) TMI 669 - ITAT DELHI
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... ... ..... ot proved that there existed urgency constituting a reasonable cause for violation of the provisions of section 269SS of the Act. All the four persons had bank accounts enjoying pension income or professional income and the assessee himself is a salaried person. The money could have been transferred to his account for which there was sufficient time. It is also a settled law as held by the hon ble Supreme Court in the case of Dharamendra Textile Processors 2008 306 ITR 277 (SC) that mens rea is not an essential ingredient for attracting civil liability like penalty under section 271D of the Act. In view of the above discussion, in our considered opinion, penalty under section 271D of the Act is exigible. Accordingly, we do not find any infirmity in the order passed by the learned Commissioner of Income-tax (Appeals) confirming the penalty of Rs. 8,00,000. In the result, the appeal filed by the assessee is dismissed. The order pronounced in the open court on December 24, 2008.
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2008 (12) TMI 668 - CESTAT BANGALORE
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... ... ..... the appellants, during the relevant period, were not at all liable to discharge any Service tax. He submits that in such circumstances, the imposition of penalties is unjustified. 4. On a careful consideration of the matter, we find that the appellants had discharged the Service Tax liability along with interest even before the issue of Show Cause Notice. This Bench, in several cases, had held that when the Service Tax along with interest is paid before the issue of Show Cause Notice, the harsher penalties under Sections 76, 77 and 78 are uncalled for. In view of this, prima facie, there is a strong case in favour of the appellants in view of the decided case-laws. Hence, we order complete waiver of the pre-deposit of the dues demanded in the said Order-in-Revision till the disposal of the appeal. No coercive measures should be taken till the appeal is decided. Appeal to come up for hearing on 17th March, 2009. Stay application allowed. (Pronounced and dictated in open Court)
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2008 (12) TMI 667 - CESTAT BANGALORE
... ...
... ... ..... luntarily pays the amount, no show cause notice is contemplated. 4. On the other hand, the learned Departmental Representative stated that this is not a case which can be covered under Section 73(3). In fact, the appellants on their own admission collected the service tax amount due to the government, but they have failed to pay it up. But for the scrutiny of the departmental officers, there would have been an escapement of service tax. Therefore, she is of the view that the appellants should be put to terms. 5. On a careful consideration of the matter, we are of the view that at this stage it would be better to waive a pre-deposit of the entire amount of penalties imposed in view of the fact that the service tax along with interest had been discharged much before the issue of show cause notice. Therefore, we order full waiver of the pre-deposit of the dues till the appeal is decided. No coercive measures should be taken till such time. (Pronounced and dictated in open Court)
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2008 (12) TMI 666 - CESTAT BANGALORE
... ...
... ... ..... ht of the definition given in Finance Act, the services rendered by the appellant would definitely be taxable under the category of ldquo Commercial Coaching or Training Centre Services rdquo . 8. On a very careful consideration of the issue, we find that this issue was elaborately dealt with by this Bench in the decisions cited (supra). The points urged by the learned Special Counsel have to be examined in depth only at the time of final hearing. It is seen that the appellant is an institution imparting higher education. Prima facie, we cannot equate them with a ldquo Commercial or Coaching Centre rdquo . In our view, the ratio of the cases decided by this and cited supra are applicable to the present case. Hence, we order full waiver of all the dues demanded in the impugned order till the appeal is decided. No coercive measures should be taken to recover the dues till the appeal is decided. Matter to come up for hearing on 16-3-2009. (Pronounced and dictated in open Court)
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2008 (12) TMI 665 - CESTAT BANGALORE
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... ... ..... milar cases interest has to be paid and this position has been confirmed by Karnataka High Court. 5. However, the learned Chartered Accountant invited our attention to the decision of the Punjab and Haryana High Court in the case of CCE v. Maruti Udyog Ltd. - 2007 (214) E.L.T. 173 (P and H) wherein it has been held that assessee is not liable to pay interest when the Modvat credit irregularly taken was not utilized. This decision has been upheld by the Hon rsquo ble Apex Court as reported in Commissioner v. Maruti Udyog Ltd. - 2007 (214) E.L.T. A50 (S.C.). 6. In view of the fact that the appellants had already reversed the ineligible credit taken and also in view of the above decision, we order complete waiver of the pre-deposit of the penalties and interest till the disposal of the appeal. No coercive measure should be taken till the appeals are decided. The stay application is allowed. Appeal to come up for hearing on 12th March 2009. (Pronounced and dictated in open Court)
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2008 (12) TMI 664 - SUPREME COURT
Whether an amendment under Order 6 Rule 17 of the CPC ought to be allowed after the relief which had been sought to be introduced had become time barred?
Held that:- Appeal dismissed. As on the date of the flood, there was no insurance policy in existence or any commitment on behalf of the respondent to make the payment under the policy. We, therefore, endorse the argument raised by the respondent that even accepting the case of the appellant at its very best that the period of limitation would be 3 years under Section 44 of the Limitation Act, the complaint would, even then, be beyond time, having been filed in April 1994.
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2008 (12) TMI 663 - CESTAT NEW DELHI
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... ... ..... amount of Rs. 45,544/- has already been reversed by the appellant, as mentioned in the order-in-original. I find that the remaining amount of credit - Rs. 3,45,338/- is in respect of insurance, civil construction inside the plant, repairing of pipes and industrial cleaning and all these services, prima facie, appear to be the input services. Moreover, the demand pertains to 2004-2005 and 2005-2006 period for which the show cause notice was issued on 1-5-07, while the appellant had been filing the ST-3 returns and as such, the major portion may be time barred. In view of these circumstances, the appellant, prima facie have a strong case and I am of the view of this, the amount of Rs. 45,544/-already deposited is sufficient for hearing of the appeal. The pre-deposit of balance amount of the Cenvat credit of service tax and penalty confirmed is waived for hearing of this appeal and the recovery thereof stayed. The stay petition is allowed. (Dictated and pronounced in open court)
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2008 (12) TMI 662 - CESTAT BANGALORE
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... ... ..... way, there cannot be any demand. With the death of the appellant proprietor, the appellant rsquo s proprietorship ceases to exist and there cannot be any demand. In these circumstances, we order complete waiver of the penalty demanded in the impugned order till the disposal of the appeal. No coercive measures to be taken till the appeal is decided. (Pronounced and dictated in open Court)
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2008 (12) TMI 661 - CESTAT BANGALORE
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... ... ..... stated that it is for the appellants to produce evidence for fulfilment of such conditions. As they had not shown any evidence to that effect, the adjudicating authority has denied the benefit of the Notification 32/2004. 6. In the course of hearing, the learned Advocate produced declarations from the Goods Transport Agency to the effect that they had not availed any credit. In view of the clear cut declaration, we find that prima facie, the appellants have a strong case on merits. The learned DR stated that in the consignment note, there is no endorsement and it is a must. In any case, we are of the view that this point can be discussed at the time of final hearing. As prima facie the appellants have a strong case, we order complete waiver of the pre-deposit of the dues demanded till the disposal of the appeal. No coercive measures should be taken by Revenue till the appeal is decided. Matter to come up for hearing on 18th March, 2009. (Pronounced and dictated in open Court)
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2008 (12) TMI 660 - CESTAT BANGALORE
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... ... ..... ation of the matter, we find that in terms of the Board rsquo s Circular and also the decision of the Calcutta Bench in the case of CCE, C and ST, Bhubaneshwar-II v. M/s. Vinshree Coal Carriers Pvt. Ltd. and Anr. - 2008 (10) S.T.R. 473 (Tribunal) 2008-TIOL-592-CESTAT-Kol, the transportation of coal/ores within the mining area is not liable to service tax during the relevant period. Prima facie, the appellants have a strong case on merits. Hence, we order complete waiver of pre-deposit of the dues. It is also seen that the appellants had already deposited the tax amounts. Therefore the said deposit may be sufficient for fulfillment of the pre-deposit under Section 35F of the Act. We order full waiver of the balance amount of tax/interest/penalties till the disposal of the appeal. Stay applications allowed. No coercive measures should be taken by Revenue till the appeals are disposed of. Appeals to come up for hearing on 18th March, 2009. (Pronounced and dictated in open Court)
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2008 (12) TMI 659 - CESTAT BANGALORE
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... ... ..... mstances, the departmental officers could have investigated the matter further and issued the show cause notice in time for the Service Tax. This has not been done. Prima facie, the appellants have a strong case on time bar. At this stage, it is not very clear whether the appellants had been doing wiring at all time or other activities also, which would be subjected to Service Tax. These points can be examined in depth only at the time of final hearing. For the present, we are inclined to order waiver of pre-deposit of the entire dues till the disposal of the appeal. As regards the merits, it can be decided only at the time of final hearing after all the facts are placed before the Bench. Thus, the stay of recovery of the dues as mentioned above is ordered till the disposal of the appeal. No coercive action should be taken by the revenue till the disposal of the appeal. This case may be placed before the Single Member Bench in its turn. (Pronounced and dictated in open Court)
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2008 (12) TMI 658 - CESTAT NEW DELHI
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... ... ..... s that the law has undergone amendment several times which might have caused difficulties in interpretation. However, the demand having been raised the same may be directed to be deposited for hearing of the appeal. 3. Heard both sides and perused the records. In view of the facts and submissions of both the sides, we direct that the amount of Rs. Five lakhs be deposited as necessary condition for disposal of the appeal and such deposit if made within four weeks from today and compliance reported on 30-1-2009, realisation of balance demand shall be stayed till disposal of appeal. (Dictated and pronounced in open Court)
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2008 (12) TMI 657 - CESTAT BANGALORE
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... ... ..... pplicant is paying the money to a person in India on whose behalf the money is transferred from Western Union through M/s. Weizmann Forex Ltd. through the applicant. The definition of the ldquo Business Auxiliary Services rdquo and the ldquo banking and other financial services rdquo needs to be gone into detail along with the agreements entered into by the applicant with the M/s. Weizmann Forex Ltd. and Others. This can be done only at the time of final hearing. As such, we find that applicant has not made out a prima facie case for complete waiver of the amounts involved. Accordingly, we direct the applicant to pre-deposit an amount of Rs. 2,00,000/- (Rupees Two Lakh Only) within eight weeks from today and report compliance on 12th March 2009. Subject to such compliance being reported, the application for waiver of pre-deposit of the balance amounts involved is allowed and the recoveries thereof stayed till the disposal of the appeal. (Pronounced and dictated in open Court)
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2008 (12) TMI 656 - CESTAT NEW DELHI
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... ... ..... tation of cargo with or without loading, unloading and unpacking. Transportation is not the essential character of cargo handling service but only incidental to the cargo handling service. Where service is provided by a person who is registered as GTA service provides and issues consignment note for transportation of goods by road in a goods carriage and the amount charged for the service provided is inclusive of packing, then the service shall be treated as GTA service and not cargo handling service. rdquo 7. In view of the above discussion, prima facie, we find that the applicant was providing transportation services, which is not covered within the purview of Cargo Handling Services. Hence, the applicant made out a prima facie case for waiver of pre-deposit of entire amount of tax and penalty. Accordingly, pre-deposit of tax and penalties is waived till the disposal of the appeal. The stay application is allowed. (Order dictated and pronounced in open court on 30-12-2008)
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