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Showing 81 to 100 of 910 Records
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2008 (8) TMI 947 - SC ORDER
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... ... ..... ces of this case, we are not inclined to interfere with the impugned judgment. The appeal is dismissed.
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2008 (8) TMI 946 - BOMBAY HIGH COURT
Maintainability of appeal - this appeal is restricted only to the findings recorded by the tribunal in relation to the provisions of Rule 209A and 173Q of the Central Excise Rules - Held that: - The findings of the tribunal is based on interpretation of the provisions and the stand taken by the revenue itself - there is no question of law arising in this appeal - appeal dismissed.
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2008 (8) TMI 945 - CESTAT MUMBAI
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... ... ..... that the Commissioner has not even noted this fact leave alone giving findings on the said plea. If the licences which were subsequently produced by the applicant were valid licence, the Commissioner could have finally assessed the goods against the said licence, as it is not in dispute that the imported goods were provisionally assessed. Since there are no findings, we do not wish to go into it and leave it to the adjudicating authority to come to a conclusion. Accordingly, we are of the view that the entire order needs to be set aside and we do so, as it has not considered the alternate plea made by the main appellant. The impugned order to the extent it confirms the demand of duty and imposes penalty in respect of the appellants herein, is set aside and the matter is remanded back to the adjudicating authority to reconsider the issue afresh after granting an adequate opportunity of hearing to the appellants herein. 6. Appeals allowed by way of remand. (Dictated in Court)
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2008 (8) TMI 944 - BOMBAY HIGH COURT
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... ... ..... he record, we do not find that there is any law which entitles the department to allow only 50 depreciation on the assets. It has come on record that the asseessee has claimed depreciation on the assets only during the year he actually reassessed. So far as argument in relation to provisions of Section 14A of the Act is concerned, it is obvious from the order of the tribunal that this point was not argued before the tribunal. Therefore, it cannot be argued here for the first time. Appeal is, therefore, disposed of.
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2008 (8) TMI 943 - KERALA HIGH COURT
Jurisdiction - Powers and jurisdiction of Chief Judicial Magistrate to deal with application u/s 14 of SARFAESI Act - Powers of the Chief Judicial Magistrates in non-metropolitan areas and in metropolitan areas - Doctrine of implied powers - constitutional validity of the section 14 - HELD THAT:- We note that the Hon'ble Supreme Court has in Mardia Chemicals Ltd. etc. v. Union of India and others [2004 (4) TMI 294 - SUPREME COURT] upheld the validity of the provisions of the Securitisation Act except sub section 2 of section 17 which was declared ultra vires Article 14 of the Constitution of India. Thereafter, the Act was amended by Amendment Act 30 of 2004 and requirement of deposit of 75% of the amount claimed was deleted. In view of the this, it is not possible for the petitioners to challenge the constitutional validity of the section.
A reading of the statutory provisions would show that u/s 14 of the Securitisation Act, the Magistrate is only rendering assistance to the secured creditor in taking possession of the secured assets as provided u/s 13(4) of the Securitisation Act. After 60 days' notice as prescribed u/s 13(2), secured creditor can approach the Magistrate for taking possession of the land. Magistrate has no power to refuse the request, but, before taking action, he can verify whether 60 days' notice as prescribed u/s 13(2) was issued or not and whether secured asset is identifiable.
Powers of the Chief Judicial Magistrates in non-metropolitan areas and Chief Metropolitan Magistrates in metropolitan areas are one and the same. Here, in this case, there is no casus omissus also. Chief Judicial Magistrates in metropolitan areas are designated as Chief Metropolitan Magistrates and vice versa mutatis-mutandis by implication and by reference to the area of jurisdiction. Chief Judicial Magistrate in a non-metropolitan area stands in the same footing as Chief Metropolitan Magistrate in metropolitan area and, their designations are used synonymously to denote the authority depending upon where one is situated, in a metropolitan area or a non-metropolitan area and, therefore, we agree with the view of the learned single Judge that in non-metropolitan areas, apart from the District Magistrate, the powers can be exercised by the Chief Judicial Magistrate also. A similar view was taken by the Madras High Court in The Dhanalakshmi Bank Limited v. Kovai Foods and Beverages [2006 (12) TMI 544 - MADRAS HIGH COURT].
An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO v. M.K. Mohammad Kunhi held that the Income Tax Appellate Tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.
Similar examples where this Court has affirmed the doctrine of implied powers are Union of India v. Paras Laminates (P) Ltd., [1990 (8) TMI 140 - SUPREME COURT], RBI v. Peerless General Finance and Investment Co. Ltd.[1996 (1) TMI 332 - SUPREME COURT], CEO & Vice-Chairman, Gujarat Maritime Board v. Haji Daud Haji Harun Abu,[1996 (11) TMI 467 - SUPREME COURT], J.K.Synthetics Ltd. v. CCE [1996 (8) TMI 110 - SUPREME COURT], State of Karnataka v. Vishwabharathi House Building Coop. Society [2003 (1) TMI 707 - SUPREME COURT], etc.
An overall reading of the section shows that the power of the Magistrate is to render assistance to the secured creditor in taking possession of the secured assets. He can also appoint a Commissioner for identification of the secured assets and taking possession of the secured assets etc. and if there is any resistance, ask for police & assistance and take any effective steps to have possession of the secured assets taken over.
Therefore, we dismiss the writ appeal, the writ petitions and the Crl. R.P.
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2008 (8) TMI 942 - CESTAT BANGALORE
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... ... ..... entral Excise Tariff after introduction of 8 Digit classification. However, the Tribunal following the ratio of the judgment rendered in the case of Crane Betel Nut Powder Works v. CC & CE, Tirupathi - 2007 (210) E.L.T. 171 (S.C.) rejected the Revenue appeal in the case of CCE v. Crane Betel Nut Powder Works (supra). The Revenue was directed to get comments with regard to applicability of the judgments. 3. The learned DR reiterates the department’s submission, although he submits that the judgment of Supreme Court has applicability to the facts of the case. 4. We find that the issue is no longer res integra and the judgment rendered by the Tribunal is in consonance with the Supreme Court judgment rendered in the case of CCE & C, Guntur v. Crane Betel Nut Powder Works (supra). As the issue is fully covered in assessee’s favour, the stay applications and appeals are allowed with consequential relief, if any. (Pronounced and dictated in open Court)
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2008 (8) TMI 941 - CESTAT BANGALORE
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... ... ..... ion, we notice that the appellant had produced all the relevant invoices showing the particulars of product name, volume, rate, brand, packing, quantity, etc. All the details have been shown in the printed invoices issued by HPCL, IOCL and others. Therefore, these details are required to be verified by the Original Authority. We find that the appellants have not done deliberately any action requiring for imposition of penalty. We set aside the penalty imposed in the present case and remand the case for re-adjudication with regard to the verification of documents which have been produced in original before the Tribunal. The appellant are entitled to seek return of the original documents produced before the concerned original authority. The Original Authority shall verify all the details and decide the case de novo within a period of four months by following the principles of natural justice. Thus, the appeal is allowed by way of remand. (Pronounced and dictated in open Court)
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2008 (8) TMI 940 - CESTAT KOLKATA
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... ... ..... (ii) Shree Venkatesh Steel Ltd. v. Commr. of C.E., Raigad - 2006 (199) E.L.T. 721 ( Tri.-Mumbai). He further states that in the case of the appellants, it has been clearly recorded in the stay order passed by the Tribunal that only 168 M.T. of stainless steel were cleared as against 2503 M.T. of non-alloy steel and hence predominantly the appellant produced goods covered under the Compounded Levy Scheme. 3. Heard the ld. DR. He reiterates the reasons recorded in the impugned order. 4. Following the cited decisions of the Tribunal which are squarely applicable to the case of the appellants, since they predominantly manufactured goods notified under the Compounded Levy Scheme, the duty paid by them in respect of the stainless steel under the compounded levy scheme is in order and the impugned order demanding duty under the normal scheme, is not sustainable. As such, the impugned order is set aside and the appeal is allowed. (Dictated and pronounced in the open Court)
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2008 (8) TMI 939 - RAJASTHAN HIGH COURT
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... ... ..... h N. Gupta, reported in 297 ITR 322 (SC), and read that judgement in extenso. In our view, the bare reading of the judgement of Hon'ble the Supreme Court in Suresh N. Gupta's case, by itself made it clear, that it was by that judgement, that Hon'ble Supreme Court proceeded to set at rest the controversy, as to whether the amendment in Section 113, made w.e.f. From 01.06.2002 is retrospective or prospective, and held it to be clarificatory and retrospective. That is the judgement rendered in the Year 2008. Even without anything else, even this judgement does make it clear, that at least, on the date, when the Tribunal passed the impugned order, the question about retrospective applicability of the amendment, made in Section 113, was very much a debatable question. In that view of the matter, the question, as framed, is required to be, and is, answered against the revenue. The appeal thus has no force, and is dismissed. The parties are left to bear their own costs.
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2008 (8) TMI 938 - KERALA HIGH COURT
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... ... ..... ng of the Tribunal for the reason that the Tribunal had merely followed the dicta laid down by this Court. 4. Now it is brought to our notice by the learned counsel appearing for the Department that the view expressed by this Court is not sustained by the apex Court in the decision rendered in the case of IPCA Laboratory Ltd. v. Deputy Commissioner of Income Tax (2004) 266 ITR 521 . In our opinion, if for any reason the Department is of the opinion that the reasoning and conclusion reached by the Tribunal is contrary to the law laid down by the apex Court in the case of IPCA Laboratory's case, the Revenue has to make an appropriate application before the Tribunal, either for review or rectification of its order. 5. In that view of the matter, we decline to entertain this appeal. Accordingly, the appeal is disposed of. However, we grant liberty to the Revenue to make an appropriate application/review petition before the Tribunal for appropriate orders.Ordered accordingly.
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2008 (8) TMI 937 - GUJARAT HIGH COURT
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... ... ..... e Tribunal had come to the conclusion that it cannot be said that there was a failure on the part of the assessee and/or there was no disclosure which could be the basis of reopening of the assessment after four years. 7. Even in the assessment order passed by the AO under s. 143(3) it is observed that after discussion and examination of the details filed, the income of the assessee is computed. 8. In the above view of the matter and in view of the categorical finding given by the Tribunal and even CIT(A) has observed in the order that the details are on record, we are of the view that all necessary materials for the purpose of assessment were on record and the AO has duly considered at the time of framing regular assessment and since the notice of reopening was issued after the period of four years from the end of the assessment year, no question of law, much less any substantial question of law arises out of the order by the Tribunal. 9. We, therefore, dismiss this appeal.
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2008 (8) TMI 936 - KERALA HIGH COURT
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... ... ..... n execution proceedings to respondents 4 to 8 is void. Consequently subsequent sale to the petitioners are also void. Exts.P11 and P12 are accordingly upheld and W.P. is dismissed. However, I give freedom to the petitioners to settle liability of the defaulter under the amnesty scheme and if petitioners settle liability, they can hold the property. If petitioners do not settle liability under the amnesty scheme, then there will be direction to the Tahsildar to sell properties and if any excess is recovered over arrears of sales tax, the same should be given to the petitioners. If petitioners make application for amnesty benefit along with copy of this judgment, recovery will be withheld until time for payment is over and will be continued only if liability is not settled. I make it clear that even though petitioners are not liable as defaulters, amnesty benefit should be granted to them for settlement of liability of the defaulter by virtue of the directions contained above.
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2008 (8) TMI 935 - CESTAT, BANGALORE
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... ... ..... g the impugned order. 4. We have carefully considered the submissions and have perused the documents evidencing the appeal having sent by post on 04.06.2005 by Certificate of Posting and again the papers were submitted in person on 28.06.2005. The Commissioner (Appeals) has taken the date on which his office has received the papers from the Office of the Commissioner of Central Excise and Customs, Port Area, Vizag. He was required to have taken the date of filing before the Commissioner of Central Excise and Customs, Port Area i.e. 28.06.2005. If this date is taken, the appeal is deemed to have been filed within time. As the matter has not been decided on merits, therefore, the impugned order is set aside and appeal remanded to the Commissioner (Appeals) to decide the case on merits. The stay application and appeal are thus allowed by remand to the Commissioner (Appeals) to decide the case by following the Principles of Natural Justice. Pronounced and dictated in open Court.
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2008 (8) TMI 934 - SUPREME COURT
Amount of compensation deposited in terms of Section 357 of the Code - Whether in a suit for recovery of money on a cheque issued by the defendant but dishonoured, the amount received by the plaintiff-creditor in a criminal proceeding should be adjusted? - HELD THAT:- We have noticed that whereas the judgment of conviction and sentence was passed on 15.12.2005, the suit was decreed by the civil court on 23.01.2006. Deposit of a sum of ₹ 2,00,000/- by the appellants in favour of the respondent herein, was directed by the Criminal Court. Such an order should have been taken into consideration by the Trial Court. An appeal from a decree, furthermore, is a continuation of suit. The limitation of power on a civil court should also be borne in mind by the appellate court.
Evidently, a duty has been cast upon the civil courts to take into account the sum paid or recovered as compensation in terms of Section 357 of the Code. It is futile to urge that on the date on which the civil court passed the decree the appellants were not convicted. As noticed hereinbefore, the appeal is a continuation of the suit and in that view of the matter as the appellants had in total deposited a sum of ₹ 4,00,000/-, i.e., ₹ 2,10,000/- in the criminal proceeding and ₹ 1,90,000/- in the civil proceedings, out of which a sum of ₹ 3,09,000/- has been withdrawn by the respondent, the High Court was obligated to take the same into consideration. In other words, having regard to the provisions of Sub-section (5) of Section 357 of the Code, a duty was cast upon the High Court to take into account the fact that a sum of ₹ 2,00,000/- had already been paid by the appellants to the respondent. Concededly, both the proceedings were maintainable. Law recognizes the same. The Parliament must have the situation of this nature in mind while enacting Clause (b) of Sub-section (1) of Section 357 of the Code and Sub-section (5) thereof.
We, therefore, are of the opinion that the impugned judgment should be modified and is directed to be modified accordingly. The matter is remitted to the learned Trial Judge. The learned Trial Judge is directed to take into consideration the amount of compensation deposited by the appellants in the criminal case and for the said purpose, the learned Trial Judge should draw up a fresh decree while correcting the decree in terms of the order of this Court. The learned Trial Judge shall, while preparing a fresh decree, take into consideration the various dates on which the diverse amounts had been deposited by the appellants and calculate the interest payable thereupon.
The appeal is allowed to the aforementioned extent.
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2008 (8) TMI 933 - ITAT MUMBAI
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... ... ..... section 145A and above Judgment of the Delhi High court we noted that when the adjustments are made in the valuation of inventories, this will affect both the opening as well as closing stock. Whatever adjustment is made in the valuation of closing stock, the same will be reflected in the opening stock also irrespective of any consequences on the computation of income for tax purposes. We further noticed that Section 145A starts with the non-obstante clause "Notwithstanding anything to the contrary contained in section 145". Therefore, to give effect to section 145A, the opening stock as on 1.4.98 will have to be increased by any tax, duty, cess or fee actually paid or incurred with reference to such stock if the same has not been added for the purpose of valuation in the accounts. The AO is directed to give the effect of section 145A as per above discussion. 8. In the result, the appeal of the assessee is allowed for statistical purposes. Pronounced on 11.08.2008.
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2008 (8) TMI 932 - ITAT DELHI
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... ... ..... ccount of doubtful debts and on account of diminution in value of investment. On both these counts, the provision made by the assessee cannot be said to be a provision made for meeting any liability and hence the judgment of the Tribunal rendered in the case of Eicher Ltd. is squarely applicable in the present case. This Tribunal decision has been duly confirmed by the Hon'ble Delhi High Court and hence respectfully following this judgment, we hold that the provision made for doubtful debt and also provision for diminution in value of investment cannot be added to the book profit under section 115JA of the Act because these provisions are not for meeting any liability. Both these issues are decided in favour of the assessee. There is no other ground left. 32. In the result, the appeal of the assessee for assessment year 1997-98 is partly allowed whereas the remaining appeals of the assessee stand allowed as indicated above. 33. Pronounced in the open court on 08.08.2008.
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2008 (8) TMI 931 - DELHI HIGH COURT
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... ... ..... service, no one is present on behalf respondent No.3. Mr. Gaurav Duggal, who is present in Court, is requested to accept notice and to appear in the matter. o p /o p 6. No prejudice would be caused to respondents No.1 and 2, if the representation of the petitioner, which ought to have been considered by respondent no.3, is considered. Consequently, the prayer of the petitioner is allowed. Taking into consideration that the goods stand seized, respondent No.3 will give a notice to the petitioner at the address mentioned in this writ petition within two weeks from today, and grant a personal hearing to the petitioner and dispose of the representation of the petitioner by a speaking order, within eight weeks, thereafter. o p /o p 7. Needless to say that in case the petitioner is aggrieved by the order so passed by the respondents, he would be at liberty to take such steps as may be available in law raising grounds taken in the writ petition as well. o p /o p 8. DASTI. o p /o p
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2008 (8) TMI 930 - KARNATAKA HIGH COURT
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... ... ..... ointed out earlier in Section 150 of the Act, no where it contends that such an order or direction can be enforced against any other individual, company firm or HUF. According to us, assessment, re-assessment or re-computation can be made as a consequential effect pursuant to direction issued by such authorities only against the persons who are parties to the earlier Appeal, Revision or Reference and it cannot be imported to a third person. Considering that the present assessee and the earlier assessee are different, we are of the opinion that the Tribunal as well as the Commissioner of Income Tax Appeals, was justified in holding that the notice issued under Section 148 of the Income Tax Act, was clearly barred by limitation and that Section 150 of the Income Tax Act, would not save the limitation to pass an order of assessment against the present assessee. In the result, the question of law framed by us is answered against the revenue. Accordingly, the appeal is dismissed.
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2008 (8) TMI 929 - ITAT BANGALORE
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... ... ..... e set off. For computing deduction u/s 10A, we are concerned only with the profit derived from export of computer software. As already observed 'unabsorbed business losses of Other units cannot be set off and therefore unabsorbed depreciation which is to be set off after the unabsorbed business loss as per sec. 72(2) also cannot be set off for ascertaining the deduction u/s 10A. 15. In the instant case, there is no unabsorbed depreciation or unabsorbed business loss in respect of software services division and therefore profits and gains of the software services division will be exempt u/s 10A without setting off the loss of other division or the setting off of carry forward losses of other division. 6. Facts being similar, so following same reasoning, we hold that deduction should be allowed from profit and gains of eligible undertaking uninfluenced by the results of other unit. The AO is directed accordingly. 7. As a result, the appeal filed by the assessee is allowed.
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2008 (8) TMI 928 - RAJASTHAN HIGH COURT
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... ... ..... s given in CIT vs. Kothari Impex (supra) the question No. 1 is answered in favour of the Revenue, and against the assessee. So far as question No. 2 is concerned, it is also covered, but against the Revenue, and in favour of the assessee, by judgment of this Court dt. 13th May, 2008, in bunch of appeals, led by IT Appeal No. 30 of 2005, CIT vs. Ravindra Platinum (P) Ltd. reported at (2008) 8 DTR (Raj) 51- Ed. . For the reasons as given in the judgment in Ravindra Platinum’s case (supra), the question No. 2 is answered against the Revenue and in favour of the assessee. Result of the aforesaid discussion, the appeal is partly allowed, the order of the CIT(A), and Tribunal allowing deduction under s. 80-IA is set aside, and it is held, that the assessee was rightly disallowed the deduction under s. 80-IA by the AO, and has rightly been allowed deduction under s. 43B by the Tribunal. The AO to do the remaining needful. The parties shall bear their own costs of this appeal.
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