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2010 (12) TMI 1276
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... ... ..... ess will be short circuited if the matter is decided for the first time by us. Accordingly, the matter is restored to the file of the DRP to hear the assessee in the matter and decide it as per law. 5. In so far as addition on merits is concerned, we have already reproduced the operative portion of the order of the DRP u/s 144C of the Act. The order does not disclose the facts of the case, contentions raised by the assessee and the process of decision by which it has been held that TP adjustments have been correctly made. Therefore, it can be said that the order has been passed without application of mind and accordingly it does not meet the requirement of principle of natural justice. Therefore, we think it fit to restore this matter also to the file of the DRP for hearing the assessee again and passing a speaking order as per law. 6. In the result, the appeal is treated as allowed for statistical purposes. This order was pronounced in the open court on 27th December, 2010.
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2010 (12) TMI 1275
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... ... ..... e sanction for prosecution of respondent was given by the sanctioning authority in a mechanical manner and it was not stated as to what material was considered by the sanctioning authority at the time of grant of sanction and how sanctioning authority came to know about the actual facts of the case. The learned ACMM had passed a similar order in another case which was assailed before this Court in Crl. Rev. P. 305 of 2010. This Court vide order dated 25th October, 2010 2011 (263) E.L.T. 513 (Del.) , found that the order passed by the learned ACMM was patently illegal. The judgment of this Court in Directorate of Revenue Intelligence v. Mohd. Anwar squarely covers this revision petition. The order dated 17th May, 2010, passed by the learned ACMM, discharging the accused is set aside for the reasons given by this Court in the aforesaid judgment. 2. The parties are directed to appear before ACMM concerned on 7th January, 2011. The learned ACMM shall proceed with the trial.
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2010 (12) TMI 1274
Imposition of 'late fee' for filing of returns under West Bengal VAT - Constitutional validity of Sub-section (2) of Section 32 of the West Bengal Value Added Tax Act, 2003 - provisions for imposition of late fee for filing of returns - Respondent contended that by introducing 'late fee' in furnishing return under Section 32(2) of the VAT Act beyond the due date, a dealer is practically benefited and/or saved from any penal consequences provided in Section 45(2)(a) or Section 46(2)(a) of the Act - existence of quid pro quo in imposing late fee - Competency of the "State Legislature" to impose fee in any matter in the List-II of the schedule VII - Retrospective effect of present Section 32(2) of the VAT Act.
HELD THAT:- The relevant provisions set out above altogether makes it abundantly clear that under Section 32(2) of the Vat Act, a dealer is under legal obligation to furnish return within the prescribed period. In case of failure to do so, he may or may not opt for filing the return together with the total Net Tax and interest upon payment of "late fee" under the amended provision of Section 32(2) of the Act. Before amendment of the Sub-section (2) by Act-I of 2008. such a dealer could furnish return upon payment penalty and prior to that no such scope was available. The impugned amendment has introduced "late fee" in place of "penalty" which is entirely optional to such a dealer who has failed to furnish return within prescribed period. The dealer is under no compulsion or obligation to furnish return upon payment of 'late fee'. A dealer is still free to choose not to file return after the prescribed period upon payment of 'late fee' and to suffer penal consequences either under Section 45(2) or under Section 46(1) or under Section 46(2) of the Act.
There can not be any room of doubt that the amended Sub-section (2) of Section 32 of the Act affords a benefit rather special beneficial right to the dealer to submit return upon payment of 'late fee' even after the prescribed period - Payment of 'late fee' as introduced by the Act I of 2008 can not be a characterized as Tax as choice is left with the dealer concerned to be attractable by the levy. Needless to mention a fee is payment levied by the state in respect of services performed by it for the benefit of the individuals.
Existence of quid pro quo in imposing late fee - HELD THAT:- In case of levying tax there is no quid pro quo between the Tax payer and the State. But element of quid pro quo is a must in case of imposing Fee. By virtue of impugned amendment, a dealer is entitled to get service indirectly from the authority upon payment of late fee. His irregular filing of return is regularised upon payment of late fee without being suffered from penal consequences which can not be categorised as nothing but special service. Thus, there exists quid pro quo in imposing late fee.
On careful scrutiny of the scheme and system of assessment of VAT liability of the dealers, it is satisfied that late fee' as introducing by Act-I of 2008 is not at all 'tax' - the learned Tribunal has not at all erred in coming to the conclusion that there is no basis for raising the plea of double jeopardy by the Petitioners.
Competency of the "State Legislature" to impose fee in any matter in the List-II of the schedule VII - HELD THAT:- The imposition of impugned late fee by the State Legislature is well within its competency under Entry No. -66 of List II of VII Schedule.
Retrospective effect of present Section 32(2) of the VAT Act - HELD THAT:- The retrospective effect of present Section 32(2) of the VAT Act, by no way, is prejudicial to the dealers because if they pay the 'late fee' they cannot be treated as defaulters and no penalty would be imposed for want of filing return which is due between 01.4.07 to 31.3.2008.
Thus, the prayer of the Petitioners has no merit and the petition is liable to be dismissed - The learned Tribunal has made no mistake in dismissing the petitions of the Petitioners. The appeal, thus, fails.
Petition disposed off.
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2010 (12) TMI 1273
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... ... ..... t I am afraid that the said submissions cannot be appreciated at this stage. A high revenue stakes are involved in this case and the offence is of a serious nature, where there is a prima facie material to show evasion of customs duty to the tune of ₹ 11.18 crores. Further, though the Petitioner has been given an opportunity to appear before the Investigating Agency, but he has failed to avail such opportunity. He had not responded to the summons issued earlier by the Enforcement Officer. The apprehension raised by the Respondent that the Petitioner may hamper the progress of the investigation cannot be ignored. The claim made by the Respondent that custodial interrogation of the Petitioner is necessary requires consideration as the investigation seems to be at early stage. 21. In view of the reasons stated above, I am not inclined to grant the relief of anticipatory bail to the Petitioner at this stage and accordingly, this Criminal Original Petition stands dismissed.
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2010 (12) TMI 1272
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... ... ..... Tribunal was justified in holding that once full depreciation is claimed, the assessee is barred from availing modvat credit? (b) Whether, on the facts and in the circumstances of the case, the Customs, Excise & Service Tax Appellate Tribunal was justified in holding that the extended period of limitation had rightly been invoked?”
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2010 (12) TMI 1271
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... ... ..... ent. Rather, it is the terms of this very agreement that the department is referring to hold MCL, to be the actual employer of the expatriate personnel.” 9.1 The tribunal further distinguished the case law referred and concluded in para 27 is as under - “27. In view of the above, the grievance of the assessee in this regard is found to be justified and is accepted as such. We hold on the basis of the above discussion, that MCL has wrongly been held to be the agent of the expatriate personnel. Accordingly, all that succeeds such treatment is also quashed.” 9.2 Since the facts of the present cases are identical in assessee’s own case, adhering to the doctrine of staire decises, we uphold the order of the Ld. Commissioner of Income Tax (Appeals) on this issue and decide the issue in favour of the assessee. 10. In the result, all the appeals filed by the revenue stands dismissed. Order pronounced in the open court on 08/12/2010 upon conclusion of hearing.
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2010 (12) TMI 1270
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... ... ..... he date of the receipt of the order passed today along with the application for condonation of delay, the said authority shall condone the delay and dispose of the appeal on merits within a period of six months. It is open to the petitioners to file additional documents before the said authority. As conceded to by Ms. Rashmi Chopra, learned counsel for the respondent that the said authority shall enter into communication with the concerned Commissioner of Income Tax of Uttrakhand and try to get documents, if any, with regard to the amount that was realized from the petitioners. We hope and trust that the appellate authority shall conduct a proper inquiry and make an effort to mitigate grievances of the petitioners as they have put forth with substantial force that the amount was recovered by way of attachment by the Tehsildar, Dehradun at the instance of the Income Tax Officer. With the aforesaid directions, the writ petition stands disposed of without any order as to costs.
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2010 (12) TMI 1269
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... ... ..... having made lump sum payment of rentals he is allowed reduction in the annual rentals payable by him for a specified period. It is thus, clear that the initial payment made by the subscriber is not a deposit. It is a payment of rentals which entitles him to specified reduction in the annual rentals payable by him for a specified period. The amount of reduction and the period is governed by Rule 434 Section IV of the Indian Telegraph Rules quoted above. It lays down that if the initial payment is ₹ 5,000/- then the reduction of rentals is for 20 years at the rate of ₹ 40/- on rentals payable bi-monthly. In our opinion, therefore the petitioner is right in contending that for the purpose of charging service tax, ₹ 340/- is the amount of bi-monthly rentals and not ₹ 380/-. 9. In the result, therefore, Petition succeeds and is allowed. Rule made absolute in terms of prayer clauses (a) (Exhibit C) and prayer clauses (b) and (d). No order as to costs.
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2010 (12) TMI 1268
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... ... ..... ference that income of the assessee has escaped assessment and it has come to the notice of Assessing Officer by virtue of the information given by the DIT. He has just noticed what investigation wing has informed him. There is no reference to any specific information, which suggest that assessee has made a bogus claim or it has received any accommodation entries. The facts of the present assessee are far better than the case of Sarthak Securities. Respectfully following the judgment of Hon'ble Delhi High Court, we are of the view that Assessing Officer is not justified in reopening the assessment. Therefore, we accept the first fold of grievance raised by the assessee and quash the reassessment order. 6. In view of our above discussion, we do not deem it necessary to go into the question whether addition of ₹ 4,01,000/- is sustainable or not. 7. In the result, the appeal of the assessee is allowed. Order pronounced in open court on this 30th day of December, 2010.
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2010 (12) TMI 1267
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... ... ..... appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent order dated March 15, 2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible. 14. By way of foot-note, we may observe that the investigating agency might have had legitimate grievance about the order dated November 27, 2007 refusing to grant sanction, and if that were so and no fresh materials were necessary, it ought to have challenged the order of the sanctioning authority but that was not done. The power of the sanctioning authority being not of continuing character could have been exercised only once on the same materials. 15. There is no merit in this appeal and it is dismissed.
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2010 (12) TMI 1266
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... ... ..... bsent when the petition was admitted. The company is absent even today. There is no affidavit in reply. There is nothing that persuades me to take a different view of the matter today. Mr.Daver states that Rule 28 has been complied with. 4. In the circumstances and for the reasons set out in the order dated 1.10.2010, the company petition is made absolute in terms of prayers (a) and (b). The petitioner shall be entitled to the costs fixed at ₹ 10,000/- to be recovered in the winding up proceedings.
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2010 (12) TMI 1265
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... ... ..... rasaran,ASG., Ms. Arti Gupta,Adv., Mr. Arjun Krishnan, Adv., Ms. Sweety Manchanda, Adv., Ms. Anita Sahani,Adv., Mr. B.V. Balaram Das, Adv. O R D E R Heard learned counsel for the Department. Delay condoned. The special leave petitions are dismissed.
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2010 (12) TMI 1264
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... ... ..... ade by the Bench. The case was heard and time given for filing of written submissions. To our mind nothing new is submitted in the written submissions. No case laws are cited. The propositions laid down by co-ordinate benches could not be properly distinguished. No request for constitution of Special Bench u/s 255(3) has been made. After reading the written submissions, we do not feel it necessary to fix the case of oral arguments once again. The written submissions are devoid of merit and are dismissed as such. 22. As we quash the levy of penalty on the ground of jurisdiction, it is not necessary for us to adjudicate the issue on merits wherein the assessee has relied on a number of case laws for the proposition that the levy of penalty u/s 158BFA is not mandatory but discretionary and for the proposition that no penalty can be levied when the issue is debatable. 23. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 3rd Dec. , 2010.
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2010 (12) TMI 1263
Disallowance of expenditure incurred towards Employees Stock Option Scheme - The assessee claimed expenditure on allotment of equity shares for the AY 2003- 04. and allotment of shares under the employment scheme for the AY 2004-05, claimed under the head ‘Staff Welfare Expenses’ and u/s 37(1). AO disallowed the expenditure. On account of the same lapse penalty was levied in the AY 2004-05 and the same was confirmed by the CIT(A).
Against the quantum addition confirmed by the CIT(A), the assessee is in appeal before us. The penalty levied by the AO was deleted by the CIT(A). Against this the revenue is in appeal before us.
HELD THAT:- The decision of Delhi Bench of ITAT in the case of Ranbaxy Laboratories Ltd. [2009 (6) TMI 126 - ITAT DELHI-I] cited by the DR is directly applicable in the present case and the same squarely covers the issue under consideration against the assessee and in favour of the Revenue.
In the case of Ranbaxy Laboratories Ltd. (supra) shares were allotted by the assessee company to its employees under ESOP at price less than the market price and the resultant difference was claimed as expenditure relying, inter alia, on SEBI guidelines. The Tribunal, however, confirmed the disallowance made by the authorities below on account of the said expenditure after examining all the relevant aspects and after giving elaborate reasons as can be seen from the relevant portion of its order which is extracted from the held portion:
''The receipt of share premium is not taxable and hence any short receipt of such premium will only be a notional loss and not actual loss for which no liability is incurred. SEBI guidelines are relevant for the purpose of accounting but are not conclusive for the purpose of allowing the same as expenditure. Therefore, such notional losses are not allowable under the Act. Therefore, such pay any liability under the claim. Therefore, such notional loss cannot be held to be allowable under the scheme of the Act. It is now settled law that entry or absence thereof in books of account is not conclusive either for treating the amount as income or allowability or otherwise of the expenditure. Thus, only on the basis of entry in the books of account the claim of expenditure is not allowable. ''
Respectfully following the decision of the coordinate Bench of this Tribunal in the case of Ranbaxy Laboratories Ltd. (supra) we uphold the impugned order of the CIT(A) confirming the disallowance made by the AO on account of ESOP expenses claimed by the assessee and dismiss the ground taken by the assessee.
In the result, the assessees appeals in ITA Nos.1099/H/2006 & 1114/H/2008 are dismissed.
levy of penalty u/s 271(1)(c) - HELD THAT:- In our opinion, the penalty proceedings stood on different footings. The disallowance of claim of expenditure by the assessee in respect of ESOPS cannot be construed as furnishing of inaccurate particulars of income or concealing of income. The claim of the assessee is based on judicial precedents in the case of SSI Limited cited [2004 (12) TMI 680 - ITAT CHENNAI] wherein it was held that;
'' ESOP was a benefit conferred on the employee and a benefit, which could not be taken back by the company. So far as the company is concerned, once the option is given and exercised by the employee, the liability in this behalf is ascertained. The fact is recognized even by SEBI and the entire ESOP scheme are governed by the Guidelines issue by the SEBI. It is not the case of contingent liability depending upon various factors on which the assessee had no control. ''
In view of this, there is a basis for claiming of deduction by the assessee and it cannot be said that the assessee furnished inaccurate particulars of income or concealed the income. As such, levy of penalty is not justified. Accordingly, we do not find any infirmity in the order of the CIT(A) in deletion of penalty and the same is confirmed.
In the result, all the appeals filed by the assessee as well as revenue are dismissed.
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2010 (12) TMI 1262
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... ... ..... .O. for computing the disallowance in accordance with Rule 8D. 14. Having heard both the parties, we find that the Hon’ble Bombay High Court in the case of Godrej and Boyce Mfg. Co. Ltd. v. DCIT (34 DTR 1)(Bom.) has reversed the findings of the Special Bench of the Tribunal in holding that Rule 8D is retrospective. Therefore, Rule 8D was not applicable for the assessment year 2005-06 and, therefore, the directions of the CIT(A) are not sustainable. The assessee’s plea that it had not incurred any expenditure for earning the dividend income has not been considered by the learned CIT(A) and, therefore, as agreed by both the parties, we restore this issue to the file of the A.O. for deciding the same denovo after considering the assessee’s submissions. 15. In the result, the revenue’s appeal is dismissed while the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open court on this 3rd day of December, 2010.
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2010 (12) TMI 1261
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... ... ..... any show cause notice to the assessee. The AO alleged that all the advertisements have been made either by the Raymonds Company or on behalf of Raymonds Company, which is not totally true and not based on facts. In fact, there is no material on record to support the above contention of the AO. We also find that while making the addition, the AO has not given any opportunity of being heard to the assessee. However, the assessee has filed copy of account of Advertisement Expenses alongwith Bills and vouchers before the Commissioner. Thus, considering the entire facts and circumstances of the present case, we are of the view that the ld.CIT(A) was fully justified in deleting the addition. In this view of the matter, we do not see any merit in the ground raised by the Revenue and consequently we dismiss the same. 20. Grounds No.5 and 6 are general in nature and need no adjudication. 21. In the result, the appeal is dismissed. The order pronounced in the open Court on 30.12.2010.
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2010 (12) TMI 1260
Refund claim - Notification No. 41/07-ST dated 06.10.2007 - Duty drawback - held that: - since the goods in question have been exported without availing drawback of service tax under the Customs, Central Excise Duties and Service Tax drawback Rules, 1995, therefore recovery of refund claim of service tax paid on specified services on the ground that goods have been exported under claim of drawback is not tenable.
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2010 (12) TMI 1259
Refund of the pre-deposit amount before CESTAT - rejection on the ground that the claim was belated, under Section 11B of the Central Excise Act, 1944 - contention of the petitioner herein is that being in the nature of pre-deposit, Section 11B of the Act could not be invoked and the return of deposit should be made in terms of Section 35F of the Act.
HELD THAT:- In terms of the circular dated 8-12-2004 and in the light of the decision of the Apex Court in U.O.I. VERSUS SUVIDHE LTD. [1996 (8) TMI 521 - SC ORDER] confirming the view of the Bombay High Court in SUVIDHE LTD. VERSUS UNION OF INDIA [1996 (2) TMI 136 - BOMBAY HIGH COURT], the pre-deposit to maintain the appeal is not to be equated to the payment of duty to invite the provisions of Section 11B of the Act. Learned counsel for the petitioner submits that the order now passed invoking Section 11B of the Act is unsustainable.
Going by the admitted fact that the pre-deposit was made in terms of Section 35F of the Act, the question of invoking Section 11B of the Act to reject the claim of the petitioner as time-barred, does not arise. As pointed out in the circular dated 2-1-2002, when the claim can be made even by a simple letter along with attested xerox copy of the order in appeal, the question of the Department further adjudicating the matter invoking Section 11A of the Act, hence, does not arise. The Circulars of the Board are binding on the respondents who have the responsibility of respecting the same. More so, in the context of the decision of the Apex Court, the question of re-agitating the issue now does not arise. In the circumstances, accepting the case of the petitioner, the writ petitions are allowed.
The respondents are directed to refund the amount within a period of eight weeks from the date of order along with interest at 6% per annum from the date of receipt of the order till the date of payment - Petition allowed.
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2010 (12) TMI 1257
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... ... ..... e has not objected for the acceptance of the additional evidences. 8. After hearing the rival submissions and on careful perusal of the materials available on record, we admit additional evidences filed by the Ld. Counsel for the Assessee. It is observed that though M/s. Simplex Concrete Piles (I) Ltd. has mentioned that the payments have been received by cheque, no cheque number has been mentioned and further the dates, appearing in the letter, are also haphazardly mentioned. Therefore, this requires fresh verification. Hence, in the interest of justice, we set aside the orders of the revenue authorities on this issue and remit back the same to the file of the AO to re-decide the issue, after considering the additional evidences filed by the assessee and after giving reasonable opportunity of being heard to the assessee. We order accordingly. 9. In the result, the appeal of the Assessee is allowed for statistical purposes. Order is Pronounced in the Open Court on 01.12.2010
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2010 (12) TMI 1256
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... ... ..... t on what basis the said entry was said to be accommodation entry. Further, the assessee is also under an obligation to show that the entry taken by it was genuine and assessee can place all the material to substantiate its statement regarding genuineness of the entry. Keeping in view all these facts, we are of the opinion that matter should be restored back to the file of the AO with the limited purpose to examine the genuineness of the cash credit entry received by the assessee from the third party. The AO will readjudicate this issue after providing the assessee reasonable opportunity of hearing and after providing the opportunity to cross-examine the evidence in the possession of the department on the basis of which it was said that the said entry was accommodation entry. We direct accordingly. 13. For statistical purposes, the appeal filed by the assessee is partly allowed in the manner indicated hereinabove. Decision pronounced in the open Court on 31st December, 2010.
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