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Showing 81 to 100 of 1014 Records
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2008 (7) TMI 1017 - BOMBAY HIGH COURT
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... ... ..... been taken against the respondent. In our opinion, in this situation it will be unfair to interfere with the order of the tribunal because the result would be the respondent’s licence again will be suspended. In our opinion, this will not serve the interest of justice. Appeal, therefore, cannot be entertained and hence, disposed of.
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2008 (7) TMI 1016 - CESTAT, AHMEDABAD
Education Cess on paper cess - Held that: - paper cess is nothing but a duty of excise and levied as well as collected only in the name of cess for the purpose of development of industries under Industries (Development and Regulation) Act, 1951 on paper and paper boards - Once it is established that paper cess being paid by the paper industries is an excise duty in the eyes of law, it must be included with the other excise duty (B.E.D., S.E.D., Cess etc.) while calculating the correct amount of education cess @ 2% as prescribed, under Central Excise Law - appeal allowed - decided in favor of Revenue.
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2008 (7) TMI 1015 - CESTAT, BANGALORE
Demand - Excisability ... ... ... ... ..... er. 7. emsp On a very careful consideration of the issue, we find that the items fabricated by the appellant are permanently fixed to the roof. In our opinion and also in the light of the Supreme Court rsquo s observations in the case of Craft Interiors, we are of the considered opinion that all these items which are permanently fixed to the walls and ground of the room cannot be removed from one place to another without causing much damage to them and without cannibalizations. So when the test of cannibalization is employed the item cannot be considered as furniture in the light of the Supreme Court rsquo s decision. So even on merits, the department rsquo s case is weak. In any case, the entire demand is hit by time bar, as there is no justification for invocation of the longer period. In these circumstances, we set aside the Impugned order and allow the appeal with consequential relief. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2008 (7) TMI 1014 - CESTAT, MUMBAI
Penalty - Abatement of proceedings on death ... ... ... ... ..... bout demise of Shri Karim Issa Ker. Despite this, the adjudicating authority came to the conclusion that no family member of late Shri Karim Issa Ker, has given any intimation of the death, after coming to such conclusion, penalty of Rs. 5 lakhs was imposed on late Shri Karim Issa Ker. I find that the succession certificate given by the Additional Civil Judge Khambhalia, Gujarat, clearly indicated that late Shri Karim Issa Ker expired on 21-3-2002. It is very clear that the adjudicating authority has passed an order against the person who expired much before the passing of order-in-original. It is settled law, no penal provisions can be invoked against individual, who has demised. Proceeding abate on the death of the person who has been charged. As such, the impugned order to the extent it imposes penalty under the provisions of Section 112 of the Customs Act, on late Shri Karim Issa Ker abates, and to that extent the order is set aside. The appeal is disposed of accordingly.
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2008 (7) TMI 1013 - GUJARAT HIGH COURT
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... ... ..... ow the printed column refers to date of service as 16th Jan., 1998, the language of s. 148(2) of the Act does not permit recording of reasons between the date of issuance of notice and service of notice. The words used by the provisions in no uncertain terms require recording of reasons before issuing any notice. The terms 'issued' and 'served' in relation to a notice are distinct and have different connotation in legal parlance and in the context of s. 148 of the Act, cannot be equated. 5. In the aforesaid facts and circumstances of the case, it is apparent that mandatory requirements provided by s. 148(2) of the Act of recording of reasons before issuance of notice have not been complied with insofar as the impugned notice under s. 148 of the Act for asst. yr. 1993-94 is concerned. Hence, notice dt. 16th Jan., 1997 for asst. yr. 1993-94 is quashed and set aside. The petition is allowed accordingly. Rule is made absolute. There shall be no order as to costs.
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2008 (7) TMI 1012 - CESTAT MUMBAI
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... ... ..... A, has set aside the findings of over-invoicing of garments for claiming fraudulent drawback holding that the FOB value and PMV has been correctly declared and that drawback is admissible and that the goods are not liable to confiscation and that the exporter and others are not liable to penalty. In view of this finding the third charge of violation of Regulation 13(d) does not sustain and we accordingly set it aside. Since, however, the other charges levelled against the CHA stand proved we uphold the revocation of the licence. However, since the CHA has been out of business for the past 2 1/2 years we hold that this is sufficient to meet the ends of justice in the present case and accordingly hold that the revocation order be in operation only up to 31-8-2008 and that it shall cease to be in operation w.e.f. 1-9-2008 and that the appellant can transact business as CHA w.e.f. 1-9-2008 onwards. 9. The appeal is partly allowed as above. (Pronounced in Court on 21-7-2008)
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2008 (7) TMI 1011 - GUJARAT HIGH COURT
Validity of reopening of assessment u/s 147/148, earlier framed u/s 143(3), after expiry of four years from end of relevant AY - granted excess deduction u/s. 80-I - HELD THAT:- We are of the view that there is no omission or failure on the part of the assessee to disclose all material facts truly and fully. The assessments for both the years have been completed under sub-s. (3) of s. 143 of the Act. All necessary details were made available with the AO at the time of finalizing the regular assessment pursuant to the notices issued under ss. 143(3) (sic.), 142(1) as well as s. 143(2) of the Act and on that basis, assessments were finalized.
Hence, it cannot be said that there was any omission or failure on the part of the assessee to disclose all material facts truly and fully at the time of original assessment. Even a bare perusal of the reasons recorded makes it clear that the factual data was available with the AO at the time of assessment. On these very materials, if he takes a different view subsequently, that too, after expiry of four year's period from the end of relevant assessment years, that would not confer any jurisdiction upon the respondent to issue notices u/s. 148 of the Act.
Therefore, we are of the view that the impugned notices issued by the AO are without jurisdiction, more particularly when the notices are issued after a period of four years from the end of the relevant assessment years. Therefore, both the impugned notices are quashed. This petition is allowed. Rule is made absolute without any order as to costs.
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2008 (7) TMI 1010 - MADRAS HIGH COURT
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... ... ..... order calls for no interference on this count. Accordingly, we uphold the same." Both the authorities have given concurrent finding that there is no failure on the part of the assessee in disclosing the facts fully and truly before the AO and also the reassessment is made only on mere change of opinion. The authorities have correctly followed the principle enunciated in the judgment of this Court in the case of Fenner (India) Ltd. vs. Dy. CIT (1999) 155 CTR (Mad) 165 (2000) 241 ITR 672 (Mad). The finding given by the Tribunal is based on valid materials and evidence. It is a question of fact but not a perverse order. Hence, we do not find any error or infirmity in the order of the Tribunal warranting interference and the order of the Tribunal is in accordance with law and the same is confirmed. In these circumstances, no substantial question of law arises out of the order of the Tribunal and the tax case appeal is liable to be dismissed and accordingly it is dismissed.
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2008 (7) TMI 1009 - RAJASTHAN HIGH COURT
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... ... ..... 48, but assessments have not been made till the date of search, or requisition, on the basis of the income disclosed in such returns. Obviously therefore, where regular return has been filed, or assessment has been made with respect to any previous year(s) included in the block period, the undisclosed income so calculated in accordance with Section 158BB(1) is to be reduced by the income so assessed, or so disclosed in the return already filed. That being the position, since in the present case, undisputedly, the returns for the relevant year had been filed by the assessee much before the search and seizure operations, and in those returns, this income, added by the Assessing Officer, had been shown, in that view of the matter, this amount could not be added over again, while making assessment in proceedings under Chapter XIV-B. Consequently, the question as framed is answered against the Revenue and in favour of the assessee. The appeal thus, has no force, and is dismissed.
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2008 (7) TMI 1008 - MADRAS HIGH COURT
Reopening of the assessment u/s 148 - time limitation - change of opinion - after the expiry of four years of the completion of the original assessment - beyond time-limit provided in the proviso to s. 147 - deduction on interest - Tribunal set aside the order of the CIT(A) and annulled the assessment proceedings without going into the merits of the case - HELD THAT:- We are of the view that we cannot find fault with the reasoning given by the Tribunal in non-suiting the Revenue for reopening the assessment. After extracting the relevant provision, viz., s. 147 of the IT Act and the proviso thereto, the Tribunal has recorded a clear finding to the effect that the assessee has truly and fairly disclosed the facts regarding interest vide item No. 3 in the note forming part of the return.
Having recorded the above findings, the Tribunal had also referred to the judgment of this Court in the case of Apollo Hospitals Enterprises Ltd. vs. Asstt. CIT [2006 (6) TMI 88 - MADRAS HIGH COURT] to sustain their view point.
Therefore, it is manifestly clear that particulars about the claim of interest amount are very much available before the AO while he was framing the original assessment, and after taking into consideration the claim on interest in respect of the abovesaid amount, the original assessment was framed.
The subsequent reopening of the assessment is nothing but in our considered view also a mere change of opinion to follow the earlier year assessment order, which is not the reason for reopening of the assessment u/s. 147 of the IT Act. Further, the reopening of the assessment cannot also be brought within the exemption stated therein for reopening after the period of four years.
Hence, the appeals are dismissed as no question of law, much less, a substantial question of law, has to be decided by this Court.
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2008 (7) TMI 1007 - BOMBAY HIGH COURT
Classification or categorization of the income - "income from long-term capital gain" OR "income from other sources" - amount in issue was paid to the appellant only to safeguard Mr. Dalvi from any claim(s) likely to be made against him by the person who had booked the flats through the appellant, since Mr. Dalvi did not construct the flats as agreed by him earlier - HELD THAT:- It is clear that the appellant has not received the amount in issue from Mr. Dalvi towards either acquiring or releasing or relinquishing any right or title or interest whatsoever, in the immovable property. The appellant was paid separately for relinquishing his interest in the immovable property, appropriate amount along with interest. Obviously therefore, the amount in issue cannot be said to be an amount received by the appellant as a compensation for relinquishing his interest in the immovable property and therefore cannot be considered under the head "Capital gain".
We agree with the observation of the Tribunal that the amount in issue was paid to the appellant only to safeguard Mr. Dalvi from any claim(s) likely to be made against him by the person who had booked the flats through the appellant, since Mr. Dalvi did not construct the flats as agreed by him earlier.
Thus, considering over all facts and circumstances of the case and the factual findings recorded by all the three lower authorities, we are unable to accept the contentions of the appellant, firstly that the amount in issue received by the appellant is not an income at all, as defined u/s 2(24) of the said Act and that alternatively this income of the appellant is required to be treated as "income from long-term capital gain" and not as "income from other sources" as contemplated by section 14 r/w section 56 of the said Act.
We hold that all the three lower authorities were fully justified in treating the receipt of amount in issue by the appellant, not only as an income but also as income received by the appellant from other source as contemplated by section 14 r/w section 56 of the said Act and subject the same to taxation accordingly.
The appellant has thus, failed to raise any question of law by the present appeal. The appeal is therefore dismissed, accordingly.
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2008 (7) TMI 1006 - SC ORDER
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... ... ..... er of Central Excise v. M/s. Bajaj Auto Finance Ltd. - Civil Appeal No. 5993/2007, the appeal is dismissed.
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2008 (7) TMI 1005 - DELHI HIGH COURT
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... ... ..... furnish the required details. In any case, in absence of any material on record and without there being any basis for disallowance, the proportionate disallowance made on estimate basis cannot be justified. The contention of the assessee was that it was carrying on various activities and for investment in shares, no separate office was required. After considering the volume of transactions in the business and the quantum of dividend income, there is no justification for making disallowance of expenditure on proportionate basis. We, therefore, do not find any scope to interfere in the order of the Ld. CIT(A) and reject the ground taken by the revenue.” The aforesaid circumstances clearly indicate that the decision of the Commissioner of Income Tax (Appeals) as well as that of the Income Tax Appellate Tribunal turned entirely upon facts and no question of law, what to speak of a substantial question of law, arises for consideration of this Court. The appeal is dismissed.
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2008 (7) TMI 1004 - GUJARAT HIGH COURT
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... ... ..... ny such additional material or books of account or evidence, there is no premise or foundation for arriving at the satisfaction in compliance with the mandatory provision of law. The requirement of law which is held to be mandatory cannot be said to have been fulfilled. The apex Court in the case of Manish Maheshwari vs. Asstt. CIT & Anr. (supra) has further observed that "As the AO has not recorded his satisfaction which is mandatory ..............." Therefore, in light of this clear observation referring to this very provision on the issue, we are of the opinion that the impugned notice deserves to be quashed and set aside for non-fulfilment of the mandatory conditions precedent before invocation or resorting to such provision. Therefore, the impugned notice dt. 16th July, 1998 at Annex. A is hereby quashed and set aside. All the petitions stand allowed. Rule is made absolute. 9. Registry is directed to place a copy of this judgment in each connected matters.
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2008 (7) TMI 1003 - ITAT MUMBAI
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... ... ..... er, while dealing with the assessee's appeal on the same ground, this ground of the Revenue does not survive. 16. The next dispute in the Revenue's appeal relates to allowing of depreciation of ₹ 69,97,585/- in respect of royalty payments. We have heard the learned counsel for the assessee and gone through the discussions in para 13, 13.6 to 13.10 and agree with the view of the learned CIT(A) that the examination of the agreement as a whole shows that in substance, the royalty payment has been made to acquire the brands and it is evident that such payment forms part of the cost of acquisition of brands and therefore, forms part of the total cost of the asset. In respect of the expenditure incurred on technical know-how, the assessee is entitled to depreciation under section 32 of the Act. We decline to interfere. 17. In the result, the Revenue appeals are dismissed and the appeal of the assessee is partly allowed. Order pronounced on this 9th day of July, 2008.
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2008 (7) TMI 1002 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... assessee was concerned for the purpose of its business. In the instant case, the boiler was directly permitted by the assessee to be partly used by its sister concerns. Further, in the case of Commissioner of Income-Tax versus Indian Express (Madurai) Pvt. Ltd. (supra), the assessee was incurring the expenditure in terms of commercial expediency was an expenditure which was required to be incurred for its business. Such expenditure must be regarded as having been incurred exclusively for the purpose of assessee's business even though incidentally a third party may also happen to be benefited by reason of such expenditure. However in the instant case expenditure was even shared by one sister concern with the assessee. Therefore, it cannot be said that the assessee has used the boiler exclusively for the purpose of its business. In view of the above, we are of the opinion that in this appeal, no substantial question of law is arising from the order of the ITAT. Dismissed.
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2008 (7) TMI 1001 - BOMBAY HIGH COURT
Restoration of appeal - review - the decision in the case of YUSUF DHANANI Versus COMMISSIONER OF CUSTOMS (EP), MUMBAI [2007 (10) TMI 55 - CESTAT, MUMBAI] contested - Held that: - Application filed by the respondents is remitted back to the Tribunal for decision.
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2008 (7) TMI 1000 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... tion 80P of the Act was also amended retrospectively with effect from 1-4-1968 by Income-tax (Second Amendment) Act, 1998 by virtue of which the assessee was not entitled to deduction claimed. We are of the opinion that since the amended law is deemed to exist from the date it is stated to be operating, therefore, re-assessment made by the Assessing Officer was perfectly valid. Therefore, in this case the notice under section 148 of the Act was validly issued on the basis of the decision of the Supreme Court in case of Assam Co-op. Apex Marketing Society Ltd. (supra) and the assessment was also validly framed in view of the retrospective amendment made in section 80P of the Act by Income-tax (Second Amendment) Act, 1998. Therefore, we do not find any illegality and infirmity in the order passed by the Tribunal. 10. Thus, there is no merit in this appeal. No substantial question of law is arising for consideration from the impugned order passed by the Tribunal. 11. Dismissed.
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2008 (7) TMI 999 - CESTAT AHMEDABAD
Whether the respondent by not maintaining separate accounts in respect of their byproduct viz. spent sulphuric acid cleared under Notification No.4/2006-CE for specific end use are required to maintain separate accounts and because of the failure whether they should pay 10% of the value as required under Rule 6(3)?
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2008 (7) TMI 998 - CESTAT, AHMEDABAD
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... ... ..... EOU. 2. No one has appeared for the respondent. Learned SDR on behalf of the Revenue states that the decision of the Tribunal in case of Amitex Silk Mills Pvt. Ltd. Vs. CCE Surat I 2006 (72) RLT 11 has been appealed against by the department. The fact that Revenue has appealed against the decision does not mean that the decision should not be followed by this Tribunal. 3. In view of the fact that the matter is already covered by the decision of the Tribunal cited by Commissioner (Appeals), I find no merit in the appeal filed by the Revenue and accordingly, reject the same. (Dictated & Pronounced in Court)
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