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Case Laws
Showing 161 to 180 of 931 Records
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2008 (9) TMI 876 - MADRAS HIGH COURT
Sale of rolling shutters by the assessee - whether taxable as works contract under section 3-B of the ?
Held that:- From the facts, it is clear that the revision petitioners are dealers in rolling shutters and they have manufactured the rolling shutters in their factory and erected the same in the customer's place. The contention of the assessee is also that they have sold tax suffered goods like guide channel, frame, ball bearing etc., to the customers has also not been established. On the other hand, the manufacture of the rolling shutters by the assessees themselves under their trade name has been established by materials. In such circumstances, no irregularity in the order of the appellate Tribunal in coming to the conclusion that the sale of rolling shutters by the assessee is taxable as works contract under section 3-B of the Act.
Now, coming to the imposition of penalty under section 12(5)(iii) of the Act, which was obtaining during the relevant period, if the assessing authority is satisfied that the return filed by the dealer is incorrect and incomplete, he may impose penalty, which penalty shall not been less than 50% and shall not be more than 150% of the difference in tax payable on the turnover disclosed in the return and determined by the assessing authority. Hence, the imposition of tax under section 12(5)(iii) of the Act is legally sustainable. Revision dismissed.
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2008 (9) TMI 875 - GUJARAT HIGH COURT
Refund of duty paid by the petitioner under the order-in-original dated 30-11-1995 denied - Held that:- The narrow meaning assigned to the words “such duty” appeared in Rule 156B(2) is absolutely incorrect and not tenable at law. The petitioner cannot be denied refund on such ground. We accordingly hold and declare that the action of the respondents of denying the refund of duty paid by the petitioner under the order in original dated 30-11-1995 is unreasonable, unconstitutional, inequitable, illegal and void. We, therefore, quash and set aside the order dated 7-11-2005 passed by CESTAT and allow the refund claim of the petitioner.
We, therefore, direct the respondents to refund the amount of ₹ 1,11,93,757/- along with interest at the rate at which interest was charged and claimed from the petitioner on the delayed payment of such duty, to the petitioner, within 30 days from the date of receipt of writ of this Court or from the date of receipt of certified copy of this order, whichever is earlier. It is made clear that the amount so directed to be paid, if not paid, the concerned Officer shall be personally liable to pay the interest so charged for the period exceeding 30 days as indicated above.
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2008 (9) TMI 874 - GUJARAT HIGH COURT
Confiscation of goods - imposition of penalty - Held that:- Since the Tribunal has given the finding of fact and taken the view that confiscation of the goods or imposition of penalty upon the importer was neither justified nor warranted, we are of the view that no question of law, much less, any substantial question of law arises out of the order of the Tribunal. Appeal dismissed.
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2008 (9) TMI 873 - SUPREME COURT
Constitutional validity of the Maharashtra Control of Organised Crime Act, 1999 - Whether the State Legislature did not have the legislative competence to enact such a law and also that the aforesaid law is unreasonable and is violative of the provisions of Article 14 of the Constitution of India? - Held that:- Allow the appeals of the State Government - constitutional validity of Sections 13 to 16 of MCOCA upheld.
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2008 (9) TMI 872 - PUNJAB & HARYANA HIGH COURT
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... ... ..... he appeal of the assessee relying upon the judgment of the hon rsquo ble Supreme Court in Sterling Foods case 1999 237 ITR 579 and a Division Bench judgment of this court in Liberty India v. CIT 2007 293 ITR 520. We have heard learned counsel for the parties and perused the record. Learned counsel for the assessee submitted that the Delhi High Court has taken a different view in CIT v. Eltek SGS P. Ltd. 2008 300 ITR 6, though without referring to the judgment of this court. It was also submitted that SLP was pending against the judgment of this court. The Gujarat High Court had also taken a different view in CIT v. India Gelatine and Chemicals Ltd. 2005 275 ITR 284. Since a Division Bench this court has already decided the issue against the assessee on the basis of the judgment of the hon ble Supreme Court in Sterling Foods quote case 1999 237 ITR 579, we are unable to hold that substantial questions of law sought to be raised arise for consideration. The appeal is dismissed.
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2008 (9) TMI 871 - GUJARAT HIGH COURT
Disallowance of carried forward unabsorbed depreciation and unabsorbed investment allowance - Held that:- When the returns of income for the two years under consideration were filed and the returns taken up for processing under section 143(1)(a) of the Act there was no finality as to the true scope of the provisions of section 115J(2) of the Act so as to warrant disallowance of carried forward unabsorbed depreciation and unabsorbed investment allowance by reducing the figure on the basis of the only the Central Board of Direct Taxes circular.
In the result, it is apparent that the respondent authorities could not have undertaken the exercise of disallowance of carried forward unabsorbed depreciation and unabsorbed investment allowance of earlier years by way of prima facie adjustment for the two years in question. Once that exercise was not permissible the consequential orders made under section 154 of the Act and section 264 of the Act cannot be sustained.
Accordingly, intimations under section 143(1)(a) of the Act both dated July 8, 1992 (exhibits A and B), orders under section 154 of the Act dated September 22, 1992 (exhibits D and E), and order under section 264 of the Act dated December 31, 1992 (exhibit I), are hereby quashed and set aside.
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2008 (9) TMI 870 - PATNA HIGH COURT
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... ... ..... e High Court has been inserted by the Finance (No. 2) Act, 1998, with effect from October 1, 1998. In the circular dated March 27, 2000, the tax effect exceeding revised monetary limits has been provided for filing the appeal under section 260A and reference under section 256(2) of the Income-tax Act before the High Court. In the background of the aforesaid, it cannot be said that the monetary limits fixed for reference shall not apply in the case of appeal. It is worth mentioning that the instruction of the Central Board of Direct Taxes dated October 28, 1992, shall be deemed to have issued under section 268A(1) of the Income-tax Act, 1961, in view of section 268A(5) of the Act. Thus, the instruction dated October 28, 1992, fixing monetary limit for filing appeal has statutory flavour and in the background thereof we are of the opinion that these appeals are incompetent. In the result, we dismiss these appeals on the aforesaid ground alone, but without any order as to costs.
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2008 (9) TMI 869 - ITAT MUMBAI
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... ... ..... n of Rs. 10 lakhs as revenue receipt and hence the same treatment should be given by treating it as a revenue expenditure in the hands of the assessee. We are unable to accede to this proposition as it is only the right person who has to be taxed. The hon ble Supreme Court in the case of ITO v. Ch. Atchaiah 1996 218 ITR 239 has held that the Assessing Officer must tax the right person and the right person alone. (page 243 of 218 ITR) Merely because a wrong person is taxed with respect to a particular income, the Assessing Officer is not precluded from taxing the right person with respect to that income. Under such circumstances, we are of the considered opinion that the assessee is not entitled to claim deduction for the said sum of Rs. 10 lakhs by treating it as revenue expenditure. However it is open to PHPL for taking remedial action as per law, if it considers expedient. In the result, the appeal filed by the Revenue is allowed. The order pronounced on September 30, 2008.
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2008 (9) TMI 868 - ITAT INDORE
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... ... ..... ntum addition has become final in the case of the assessee individual, but it is not a fit case of imposition of penalty because there was no conscious or deliberate concealment of income or filing inaccurate particulars of income by the assessee. All the facts were within the knowledge of the Revenue Department since beginning as well as the day original return was filed by the assessee for the assessment year in question. The present penalty proceedings arise out of the reassessment proceedings subsequently under section 148 of the Act and not out of the original assessment proceedings under section 143(3) of the Act. Considering the above discussion, we are of the view that it is not a case of concealment of particulars of income. In this view of the matter, we set aside the orders of the authorities below and cancel the penalty under section 271(1)(c) of the Act. As a result, the appeal of the assessee is allowed. The order pronounced in open court on 19th September 2008.
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2008 (9) TMI 867 - ITAT AHMEDABAD
Valuation of closing stock - Rejection of books of accounts - Addition of Enhancement of Net profit @ 3 percent of the total turnover - Polished diamonds - sales of superior quality of diamond and cost of inferior diamond having lower value than the average manufacturing cost of the year - assessee is engaged in the manufacturing as well as trading and export of diamonds - HELD THAT:- In the instant case, it is observed that the trading result shown by the assessee compares favourably with the past accepted position in the case of the assessee itself. Therefore, merely rejecting the book result on the ground that quality-wise details of diamonds has not been maintained will not empower the AO to add any income to the income shown by the assessee. We also observe that no material could be brought on record by the Revenue to show that the value of closing stock of diamonds shown by the assessee was incorrect or the method of valuation consistently adopted and followed by the assessee was incorrect. Further, it is observed that none of the lower authorities have found that the various expenses claimed by the assessee in its profit and loss account were not supported by vouchers or not verifiable or were not genuine. In the above circumstances, the ld CIT (A) was not justified in rejecting various expenses disclosed by the assessee’s day-to-day maintained books of account.
Merely because the profit disclosed by the other businessmen in terms of the turnover of its business differs from the rate of profit disclosed by the assessee in terms of its turnover will not, by itself, empower the ld CIT (A) to add any amount to the income of the assessee.
We are confident that the Revenue authorities must have come across the case of other assessees whereby securing similar or more turnover the assessee suffers a loss in the business or secured lesser profit than the assessee. In the instant case, as no specific defect in the various expenses claimed by the assessee in the profit and loss account could be pointed out by the Revenue, the ld CIT (A) was not justified in arbitrarily applying the rate of net profit of 3 percent in making addition. As the addition on account of valuation of closing stock and addition of enhancement of net profit are found to be not based on cogent and relevant material and are based merely on the surmises and conjectures, the same are found unsustainable on the facts of the instant case. We, therefore, delete the additions.
In view of our decision in respect of grounds taken with the memo of appeal, the entire addition made by the lower authorities stands deleted.
In the result, the assessee's appeal stands allowed.
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2008 (9) TMI 866 - PATNA HIGH COURT
Whether the balance sheet of a factory prepared by a professional, qualified Chartered Accountant, a legally recognized certificate holder with the Institute of Chartered Accountants in terms of the Company Act on the basis of facts and figures so provided by the respondent can be ignored on irrelevant and arbitrary grounds?
Held that:- The balance sheet prepared by the Chartered Accountant can be ignored on relevant and good grounds. The grounds assigned by the Commissioner as also the Tribunal are good and valid grounds. We are of the opinion that the balance sheet prepared by the qualified Chartered Accountant is not conclusive proof in regard to the production.
Accordingly, we answer the reference against the department and in favour of the assessee and it is held that the balance sheet prepared by the Chartered Accountant was not ignored on irrelevant or arbitrary grounds.
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2008 (9) TMI 865 - ITAT CHENNAI
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... ... ..... da Siel Power Products Ltd. v. CIT 2007 295 ITR 466 had reiterated that ldquo rule of precedent rdquo is an important aspect of legal certainty in the rule of law. ldquo Doctrine of precedent rdquo has further been reiterated by the hon rsquo ble apex court in a recent decision in the case of Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. 2008 305 ITR 227 in Civil Appeal No. 1171 of 2004. In this decision, vide order dated September 15, 2008, the hon ble apex court had held that even a decision of the apex court or the jurisdictional High Court rendered subsequent to the Tribunal s decision can render the said Tribunal decision liable to rectification of mistake apparent from record. In view of the aforesaid discussion and precedent, we are inclined to dismiss this appeal by the Revenue on account of tax effect, when on similar facts the hon ble jurisdictional High Court has dismissed the Revenue s case on tax effect. In the result, this appeal by the Revenue is dismissed.
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2008 (9) TMI 864 - SUPREME COURT
Whether a dispute raised by an insured, after giving a full and final discharge voucher to the insurer, can be referred to arbitration?
Held that:- Appeal dismissed. High Court examined the issue and found that prima facie there was no accord and satisfaction or discharge of the contract. It held that the appellant is still entitled to raise this issue before an arbitrator and the arbitrator has to decide it. On the facts and circumstances and the settled position of law referred we are also prima facie of the view that there is no accord and satisfaction in this case and the dispute is arbitrable. But it is still open to the appellant to lead evidence before the arbitrator, to establish that there is a valid and binding discharge of the contract by way of accord and satisfaction.
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2008 (9) TMI 863 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-II
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... ... ..... e Tax law. The above are facts and thus do not require any discussion. The appellant further questions that though the SCN was silent for a proposal of imposing penalty for non-registration, the adjudicating authority has imposed penalty of Rs. 1,000/- under Section 77 for not obtaining registration required under Section 69 of the Act. The contention of the appellant is correct inasmuch as the SCN does not contain the proposal for imposing penalty for non-registration which also shows that the lower authority has traversed beyond the allegations contained in the SCN which is not permitted in the law. 5. In view of the above discussions and facts, no case has been made out against the appellant and accordingly, penalties imposed under various sections and interest confirmed also do not survive. 6. Accordingly, I allow the appeal with consequential relief to the appellant by setting aside the impugned order passed by the Assistant Commissioner, Central Excise, Satara Division.
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2008 (9) TMI 862 - CESTAT NEW DELHI
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... ... ..... resent case, the Appellant availed Credit on the basis of the invoices issued by BSNL, which was not disputed at suppliers end. So, the contention of the ld. DR that they have availed Credit on the port and space charges, which is contrary to Board Circular is not sustainable. It is revealed from the order of the Commissioner (Appeals) that there is a factual dispute as to whether the BSNL has paid the tax to the Government. It is contended by the Appellant before the Commissioner (Appeals) that the Appellants are not aware as the BSNL has not paid the tax so collected by the Government. In any event, both the authorities below have not given any findings on this issue. In view of that, the impugned orders are set aside and the matter is remanded back to the Adjudicating Authority. However, Revenue is at liberty to proceed in the matter, if it is found that BSNL has not paid the tax so collected in accordance with law. (Order dictated and pronounced in open court on 3-9-2008)
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2008 (9) TMI 861 - COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX (APPEALS), LUCKNOW
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... ... ..... f such consumables are not indicated in each bill/invoices issued by the appellant revenue can not prohibit the appellant to take the benefit of Notification No. 12/2003-S.T., dated 20-6-2003. In the light of the above findings I drop demand of service tax of Rs. 11,35,904.00 on the appellant for the period 16-7-2001 to 10-9-2004 under erstwhile Section 73(1)(a) of the Finance Act, 1994 and from 11-9-04 to 31-3-05 under proviso to erstwhile sec. 73(1) of the Finance Act, 1994 which shall be paid along with interest under Section 75 of the Act of Rs. 11,35,904/- under erstwhile Section.73(1)(a). Since demand is held to be unsustainable, there is no question of any penalty under Section 76 and 78 of the Act. However, the adjudicating authority has rightly imposed penalty of Rs. 1000/- under Section 77 as the appellant was not submitting the S.T. 3 returns timely. The Order-in-Original is modified as per para 8 of this order and remaining part of the Order-in-Original is upheld.
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2008 (9) TMI 860 - GUJARAT HIGH COURT
Deemed Credit earned by the respondent in terms of Notification No. 6/02-C.E. (N.T.), dated 1-3-2002 - whether had not lapsed despite the said notification having been withdrawn vide Notification No. 8/03-C.E. (N.T.) dated 1-3-2003 as decided by Tribunal?
Held that:- Even with regard to the proviso to Rule 3 support can be derived from the observations made by the Hon’ble Supreme Court in the case of Eicher Motors Ltd. v. Union of India [1999 (1) TMI 34 - SUPREME COURT OF INDIA] the scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier scheme was applied under which the assessees had availed of the credit facility for payment of taxes. Any manner or mode of application of the said rule would result in affecting the rights of the assessees. The Hon’ble Supreme Court further observed that Section 37 of the Act does not enable the authorities concerned to make a rule which cannot be said to be applied to the goods manufactured prior to 16-3-1995 on which duty had been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods. The Court further observed that when on the strength of the rules available certain acts have been done by the parties concerned, incidents following thereto must take place in accordance with the scheme under which the duty had been paid on the manufacture products and if such a situation is sought to be altered, necessarily it follows that right, which had accrued to a party such as availability of a scheme, is affected and, in particular it loses sight of the fact that the provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. No substantial question of law arises out of the order of the Tribunal. Both these appeals are accordingly dismissed.
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2008 (9) TMI 859 - CESTAT NEW DELHI
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... ... ..... hat the GTAs concerned might have availed credit on inputs and capital goods. The said charges are denied vehemently by the appellant. They have also produced evidence in the form of endorsements in the bills and in the form of declarations from concerned GTAs. 5.2 We find that no verification has been made by the Department to test the veracity of the claim by the appellant. The Commissioner was not right in brushing aside the certificate without causing any verification. In the interest of justice, we feel that this should have been undertaken before alleging and confirming such a huge demand. 6. To enable the above, we set aside the impugned order of the Commissioner and remand the matter to the original authority for conducting necessary verification and also considering the applicability of the clarification dated 21-8-2008 by the Board. The appeal is allowed by way of remand. The stay petition is also disposed of. (Dictated and pronounced in the open Court on 5-9-2008)
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2008 (9) TMI 858 - CESTAT BANGALORE
Stay/Dispensation of pre-deposit - Gas arising as a technological necessity during manufacture of HR coils
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2008 (9) TMI 857 - CESTAT KOLKATA
Stay/Dispensation of pre-deposit - National Calamity Contingent Duty (NCCD) - Chassis for Multi-axle Tipper and Concrete Mixer Trucks - Appellants claimed classification of goods under sub-heading 8706.42 of Central Excise Tariff, whereas, Department contended the same classifiable under sub-heading 8706.49 ibid, and as such, subject to levy of NCCD @ 1% under Section 136 of Finance Act, 2001
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