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2010 (3) TMI 1244 - SUPREME COURT OF INDIA
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... ... ..... m relief. The petitioner is permitted to carry on the sale of Cigarettes and other Tobacco products in the departure terminal subject to fulfilling the conditions of Section 32 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. The Respondent-Department is directed to release the stock subject to the petitioner fulfilling the above conditions. The special leave petition is disposed of accordingly.
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2010 (3) TMI 1243 - ITAT MUMBAI
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... ... ..... y in filing the appeal late by holding that there are bonafide and reasonable cause. Though the learned counsel has stated that the quantum matter had been admitted by the Hon’ble High Court; therefore, in view of the decision of 3rd Member reported in 91 ITD 237, penalty is not leviable. However, we feel that matter should go back to the file of the Assessing Officer as the Assessing Officer as well as learned CIT(A) has decided the issue ex-parte without affording reasonable opportunity of being heard to the assessee. Accordingly, we set aside the orders of the authorities below and restore the matter back to the file of the Assessing Officer for passing a fresh order after giving reasonable opportunity of being heard to the assessee. We order accordingly. 22. In the result, appeal in ITA No.2500/Mum/09 for Assessment Year 2000-2001 is allowed and the other appeals of the assessee are allowed for statistical purposes. Order pronounced on this day of 24th March, 2010.
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2010 (3) TMI 1242 - ITAT CHANDIGARH
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... ... ..... umerated above and following the ratio laid down by Hon'ble Supreme Court in CIT Vs. Kelvinator of India Ltd (supra), Hon'ble Delhi High Court in Legato Systems (India) (P) Ltd vs DCIT (supra), Hon'ble Bombay High Court in Aventis Pharma Ltd Vs. JCIT (supra, and in the absence of any tangible material coming to the possession of the Assessing Officer, in formation of a reason to belief that income had escaped assessment, the aforesaid exercise of power by the Assessing Officer in reopening the assessment proceedings under section 147 / 148 of the Act in the present case is unjustified. Hence, the order of the Assessing Officer in invoking the jurisdiction u/s 147 of the Act is hereby quashed. 18. The ground No.1 raised by the assessee is thus allowed. In view thereof we do not address the issue on the merits of the disallowance of the expenditure. 19. In the result, appeal of assessee is allowed. Order Pronounced in the Open Court on this 31st day of March, 2010.
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2010 (3) TMI 1241 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ssessee. Likewise, certain other judgements have been relied upon. A copy of the reasons is taken on record as Mark “A”. Having heard the learned counsel, we are of the considered view that no question of law much less a substantive question of law would arise for determination of this Court. The instant case is not a case of concealment or suppression on the part of the assessee- respondent warranting exercise of jurisdiction under Section 147 read with Section 148 of the Act. It is a case of change of opinion which cannot constitute basis for exercise of jurisdiction under Sections 147/ 148 of the Act. It is evident from the notice issued under Section 148 of the Act that the Assessing Officer sought to change his opinion by placing reliance on various judgements of the Hon'ble Madras High Court and Hon'ble Delhi High Court. Therefore, it is a clear case of change of opinion and not of concealment. Accordingly the appeal fails and the same is dismissed.
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2010 (3) TMI 1240 - CESTAT, BANGALORE
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... ... ..... been classified by the Central Excise Officer having jurisdiction over the manufacturer's factory as falling under Heading 84.29, the appellant, who is the consumer of those goods, could not get the classification of the manufacturer changed from 84.29 to 84.27. 6. The finding recorded by the Tribunal is unexceptionable. We agree with the view taken by the Tribunal that the appellant could not get the classification of 'Loadall' changed to Heading 84.27 from 84.29, as declared by the manufacturer. Insofar as the penalty imposed by the authority-in-original is concerned, we are of the view that a case for imposition of penalty is not made out and accordingly the same is set aside and deleted. Rest of the order of the Tribunal restoring the order of the authority-in-original is confirmed." In view of the above, I find that learned Commissioner (Appeals) order is correct and legal and does not suffer from any infirmity. Appeal filed by the revenue is rejected.
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2010 (3) TMI 1239 - BOMBAY HIGH COURT
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... ... ..... ased to pass the following order “The petitioner is challenging the Order passed by the High Court where the petitioner was declined interim relief. The petitioner is permitted to carry on the sale of Cigarettes and other Tobacco products in the departure terminal subject to fulfilling the conditions of Section 32 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. The Respondent Department is directed to release the stock subject to the petitioner fulfilling the above conditions. The special leave petition is disposed of accordingly.” Considering that the Hon’ble Supreme Court has held that the Petitioner is permitted to carry on sale of Cigarettes at the departure terminal, in our opinion, the final relief can be granted to the Petitioners in terms of the order of the Hon’ble Supreme Court. Order accordingly. Petition accordingly disposed of.
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2010 (3) TMI 1238 - KARNATAKA HIGH COURT
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... ... ..... ould not be said to be derived from the industrial undertaking as it is a step removed from the business undertaking and therefore not liable for deduction under section 80HHC of the act. 10. We are of the view that on the fact of the present case and taking into consideration the decisions referred to supra, the decision in PANDIAN CHEMICALS LTD. VS. COMMISSIONER OF INCOME TAX, would not be applicable to the present case. In the instant case as already stated for the purpose of its business that is export business, the fixed deposits were given as security in under to avail credit facilities and consequently on facts we are of the considered view that the decision in GOVINDA CHOUDHURY & SONS and CHIINNA NACHIMUTHU CONSTRUCTIONS are applicable and the decision of apex court in PANDIAN CHEMICALS LTD. VS. COMMISSIONER OF INCOME TAX can be distinguished. Accordingly, we answer the substantial questions of law raised in this appeal against the revenue and dismiss the appeal.
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2010 (3) TMI 1237 - MADRAS HIGH COURT
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... ... ..... s, failed to deposit 25% of the purchase money on the date of sale and the full amount of purchase money within 15 days from the date of sale and having not complied with the mandatory provision under Rule 57 read with the conditions of sale have forfeited all claim to the properties. o p /o p 28. In view of our conclusion that there was no sale and the purchasers acquired no rights at all to the properties, there is no need to go into the merits of the contentions as to whether the petitioners are bonafide purchasers and as to whether the claim of the petitioners is barred by the provisions of the Limitation Act. o p /o p 29. The conclusion of the Debts Recovery Appellate Tribunal that the sale in favour of the petitioners cannot be legally protected and liable to be set aside, is sustainable albeit for the reasons stated above. o p /o p 30. The Writ Petition is dismissed. However, there shall be no order as to costs. Connected M.P. Nos. 1 and 2 of 2007 are closed. o p /o p
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2010 (3) TMI 1236 - ITAT AHEMDABAD
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... ... ..... e, expenditure having been incurred for promoting the business and to earn profits. 15. Ground no. 5 in ITA nos. 3003 & 3006/Ahd./2009, ground no. 6 in 3004/Ahd./2009, ground no. 4 in ITA nos. 3005 & 3007/Ahd./2009 and ground nos. 5 & 6 in ITA no.3019/Ahd./2009, being general in nature, do not require any separate adjudication while no additional ground having been raised in terms of residuary ground no. 6 in ITA nos. 3003,3004 & 3006/Ahd./2009 and ground no. 5 in ITA nos. 3005 & 3007/Ahd./2009 , all these grounds are dismissed. 16. In the result, appeals in ITA No.3003,3004 & 3006/Ahd/2009 are allowed for statistical purposes while appeals in ITA nos. 3005 & 3307/Ahd/2009 are partly allowed. The appeal of the Revenue in ITA no. 3019/Ahd./2009 is dismissed. 17. Since appeals by these assessees have been disposed as indicated above, corresponding stay petitions do not survive and become infructuous. Order pronounced on this 26th day of March, 2010.
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2010 (3) TMI 1235 - ITAT AMRITSAR
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... ... ..... herefore, if at all penalty was to be imposed qua that enhanced income, it was the CIT(A), who was to record the satisfaction for initiating the penalty against the assessee. It would be devoid of logic that in a case of enhancement, where the AO is not at all concerned with the enhanced income, the satisfaction required for initiating penalty proceedings concerning such enhanced income be that of the AO. 8. For the above discussion, we hold that the insertion in the Act, of s. 271(1B) by the Finance Act, 2008, with retrospective effect from 1st April, 1989, does not have any effect adverse or detrimental to our order dt. 4th May, 2007 (supra), as tried to be made out by the Department. Accordingly, finding no error in our said order, much less any error apparent from the record, nothing in that order requires to be rectified. The grievance of the Department is wholly unjustified and is rejected as such. 9. In the result, the application filed by the Department is dismissed.
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2010 (3) TMI 1234 - ITAT KOLKATA
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... ... ..... ITR 473 (Cal). He, therefore, urged before the bench to confirm the action of the Ld. CIT(A). 13. We have heard both the parties and perused the materials available before us. We find that the Ld. CIT(A) by following the decisions of Hon’ble jurisdictional High Court cited supra, has given relief to the assessee. In this view of the matter and also finding no contrary material brought on record by the Ld. D.R. we do not find any infirmity in the order of the Ld. CIT(A) and the same is hereby upheld. Therefore, this ground of appeal of the revenue is also dismissed.” 8. Facts and circumstances of the issue before us being identical to those for assessment year 2005-06, therefore, respectfully following the aforesaid decision of coordinate Bench, we uphold the order of the C.I.T.(A) on this issue and dismiss grounds No. 3 & 4 of the Revenue’s appeal. 9. In the result, the Revenue’s appeal is dismissed. Order is pronounced in the Court on 31.03.2010.
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2010 (3) TMI 1233 - BOMBAY HIGH COURT
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... ... ..... sed. 4 With the dismissal of these petitions, interim orders, if any, in all these petitions shall automatically came to an end. The respondents/employers shall be liable to quantify the tax liability equivalent to the amount of TDS which was deductible and payable to the income tax department and shall remit the same to the Income Tax Department within three months from the receipt of the copy of this order. In the event of compliance of this direction the none of the employers shall be treated as an assessees in default. 5 We make it clear that it would also be open for the Income Tax Department to take appropriate further steps to proceed with the assessment and/or reassessment, as the case may be, in accordance with law following law laid down by the Apex Court in the judgment of Arunkumar (supra)including the steps to recover their tax dues if any. 6 In the result all these petitions are dismissed. Rule stands discharged in terms of this order with no order as to costs.
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2010 (3) TMI 1232 - SC ORDER
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... ... ..... Kumar, JJ. ORDER Appeal dismissed.
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2010 (3) TMI 1231 - SUPREME COURT
Petition challenging the vires of notification dated August 16, 1994 by which main notification dated February 19, 1991 was amended - building plans sanctioned and constructions made and ongoing constructions pursuant to the Coastal Regulation Zone - Construction made between 50 meters to 100 meters of ‘High Tide Line’ - ‘No Development Zone’ should be marked at 100 meters and the stop work order - Whether a judgment in the case of Indian Council for Enviro-Legal Action is prospective or retrospective effect? - HELD THAT:- From the record, it becomes clear that the petitioners had made an application to the Panchayat to inspect the construction made on Survey No.12/1 and 99/2 which were stretches of lands lying between 50 meters and 100 meters. In view of the contents of the said letter, a Panchayat official had inspected the site on September 25, 1996 and prepared a site inspection report. The said report indicated that the petitioners had completed foundation work up to the plinth level and in some of the areas of the property, the construction work of the building was complete and ready for occupation.
The record shows that the National Coastal Zone Management Authority considered the matter in detail in its meeting held on October 30, 2007. The Authority, after detailed discussions, was of the view that there would be several cases all over the coast wherein there would be some instances indicating that constructions work had been completed or was in progress pursuant to the Notification dated August 16, 1994. Therefore, the Authority concluded that the stand taken by the MOEF vide letters dated January 24, 2007, February 13, 2007 and May 16, 2007 was correct one and was in accordance with the CRZ notification of 1991.
Whether the constructions made or on-going pursuant to the plans sanctioned on the basis of Notification dated August 16, 1994 would be affected or not - A critical study of the judgment in Indian Council For Enviro-Legal Action [1996 (4) TMI 534 - SUPREME COURT] makes it clear that this Court had examined validity of six amendments made by Notification dated August 16, 1994 in the Notification dated February 19, 1991. Two out of the six amendments were found by this Court to be arbitrary and illegal and, therefore, they were struck down. When one part of the Notification was found to be legal and another part of the said Notification to be bad in law, it would not be proper to construe the judgment affecting past transactions.
Tenor of the judgment indicates that this Court intended to give prospective effect to the judgment dated April 18, 1996 rendered in the case of Indian Council for Enviro-Legal Action (supra). It is to be noted that this Court in its judgment dated April 18, 1996 had not specifically directed demolition of existing structures. It is also pertinent to note that this Court had not stated as to what will be the fate of ongoing constructions which were coming up or on-going as per sanctions during the period when the said amending Notification dated August 16, 1994 was valid and in force. On perusal of the judgment in entirety, it is abundantly clear that the judgment is in form of directions to the Central Government and other authorities formed within the purview of Environment Act, 1986 and those directions are to be followed in future.
While interpreting the judgment, it is important to take into consideration the view expressed over the matter in controversy by various Governmental Authorities formed under the purview of Environment Act, 1986 to implement the provisions of Environment Act, 1986 although such view or opinion is not binding on the Court. By communication dated January 24, 2007, February 13, 2007 and May 16, 2007 issued by Additional Director of Ministry of Environment and Forests and decision of National Coastal Zone Management Authority dated October 30, 2007, it is brought on record that all the authorities unanimously opined that judgment of this Court dated April 18, 1996 will operate prospectively and further clarified that any developmental activity which has been initiated between August 16, 1994 and April 18, 1996 after obtaining all requisite clearances from the concerned agencies including the Town and Country Planning should be construed as on-going projects and are not hit by the judgment of this Court dated April 18, 1996.
Taking into consideration all the factors, this Court refuses to interpret the 1996 judgment in a manner which would give it a retrospective effect. It is clear from the tenor of judgment and from other background circumstances, more importantly in view of decisions of NCZMA which is a statutory body that Three Judge Bench decision in 1996 case intended to give it prospective effect.
As observed earlier, the whole matter was reconsidered by the NCZMA pursuant to the order passed by the Division Bench of the Bombay High Court. It is well to remember that the said order was never challenged by the respondents before higher forum and by their conduct, the respondents had permitted the said order to attain finality.
The contention raised on behalf of the respondents that the construction already completed would not be affected in any manner by decision of this Court in Indian Council for Enviro-Legal Action (supra) but incomplete construction cannot be permitted to be completed is devoid of merits. Two amendments made in the year 1994 were declared to be illegal vide judgment dated April 18, 1996. Till then, its operation was neither stayed by this Court nor by the Government.
Therefore, a citizen was entitled to act as per the said notification. This Court finds that the rights of the parties were crystallized by the amending notification till part of the same was declared to be illegal by this Court. Therefore, notwithstanding the fact that part of the amending notification was declared illegal by this Court, all orders passed under the said notification and actions taken pursuant to the said notification would not be affected in any manner whatsoever.
The plea that the petitioner would get benefit of interpretation placed by statutory bodies and others would not get any benefit and, therefore, the petition should be dismissed has no substance. A bare glance at the minutes of the 16th meeting of the NCZMA held on October 30, 2007 makes it more than clear that it was concluded by the authority that the stand taken by the Ministry vide letters dated January 24, 2007, February 13, 2007 and May 16, 2007 was correct and was in accordance with Coastal Regulation Zone Notification of 1991. What is relevant to notice is that the said authority has in terms held that the clarification given by the MOEF is applicable to all such cases in the coastal areas of the country. Therefore, the plea that only petitioners have been favoured by the authority and, therefore, the petition should be dismissed cannot be accepted.
We are of the opinion that a good case has been made out by the petitioners for issuance of a declaration that the judgment dated April 18, 1996 rendered in the case of Indian Council for Enviro-Legal Action (supra) will not affect the on-going constructions or completed constructions pursuant to the plans sanctioned under the amending Notification of 1994 till two clauses of the same were set aside by this Court.
Therefore, the petition partly succeeds. It is declared that the judgment dated April 18, 1996 in Indian Council for Enviro-Legal Action vs. Union of India [1996 (4) TMI 534 - SUPREME COURT], declaring part of the amending Notification dated August 16, 1994 to be illegal, will not affect the completed or the on-going constructions being undertaken pursuant to the said Notification The rule is made absolute to the extent indicated hereinabove. There shall be no order as to costs.
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2010 (3) TMI 1230 - DELHI HIGH COURT
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... ... ..... the statement recorded by the Investigating Officer during investigation. 6. Suffice would it be to state that where the view taken by the learned trial Judge on the evidence led is a probable view, merely because another view is possible on the same evidence, would not justify the Appellate Court to re- appreciate the evidence to take the other view. 7. Of course, it is in the domain of the Appellate Court to, while re-appreciating the evidence, see whether material evidence and circumstances have been ignored or whether inconsequential circumstances have been given prominence more due than what was required. Lastly, if it is found that the conclusion drawn is so illogical that no person would draw the same, the Appellate Court can re-look into the matter. 8. Finding none of the aforesaid being attracted, we hold that no case is made out to grant leave to appeal against the impugned decision, which we note is a well considered decision. 9. This leave petition is dismissed.
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2010 (3) TMI 1229 - ITAT DELHI
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... ... ..... hese evidences. According to the Assessing Officer, summons under sec. 131 of the Incometax Act, 1961 was sent to Shri Sher Singh, director of the company M/s. Ankur Distributors (P) Ltd. on the given address through speed post which has been received back unserved with the remark of postal authority “ no such firm at such address”. In our opinion, the share application money was received in 2000. The summons were issued at the fag end of 2008. If it has been received unserved then Assessing Officer ought to have taken other modes of investigation. Learned CIT(Appeals) has considered all these aspects and thereafter deleted the addition. Taking into consideration our findings on the preliminary objection of the assessee vis-à-vis the detailed order of the Learned CIT(Appeals) on merit, we do not find any merit in this appeal. It is dismissed. 8. In the result, the appeal filed by the revenue is dismissed. Decision pronounced in the open court on 18.03.2010
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2010 (3) TMI 1228 - ITAT AHMEDABAD
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... ... ..... d flimsy grounds. If for some good reasons exemption was denied; it would have been a different matter. The reliance on the decision in the case of Gujrat Maritime Board(supra) by the ld. DR is totally misplaced, since the said decision was rendered on different facts and the question of retrospective registration was not even raised before the Hon'ble High Court. Considering that the reasons given by the assessee trust in the present case are similar to reasons given in the case M/s Amardip Charitable Trust (supra), respectfully following the said decision , we direct the Commissioner to grant registration retrospectively in terms of provisions of sec. 12AA of the Act. Thus, ground no. 1 & 2 of the appeal are allowed as indicated above. ITA No.3815/Ahd/2007 6. No additional ground having been raised in terms of residuary ground no. 3, accordingly, this ground is dismissed. 7. In the result, appeal is allowed . Order pronounced in the open court today on 26-03-2010 .
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2010 (3) TMI 1227 - ITAT KOLKATA
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... ... ..... was its commercial asset, for earning income as the same was not required at the relevant time for its business use. The C.I.T.(A) allowed the claim of the assessee. The A.O. added the sum of ₹ 49,144/- being the liabilities no longer required written back. The C.I.T.(A) found that the earlier business liabilities, which were created by debiting business expenses did not exist and hence the assessee wrote back the liabilities and credited the same in the P/L Account as business income. He, therefore, directed the A.O. to treat the same assessee's business income. Considering the facts of the case and our findings given in respect of business loss of ₹ 22,31,246/-, we find no reason to interfere with the order of the Ld. C.I.T.(A) on these issues. We, therefore, uphold his findings in this regard and reject the grounds of the Revenue. 7. In the result, the Revenue's appeal is partly allowed as indicated above. Order is pronounced in the Court on 19.03.2010
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2010 (3) TMI 1226 - CESTAT CHENNAI
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... ... ..... decision taken by the lower appellate authority to allow refund equal to deemed credit of 20 against the full payment made by the appellants appears to be reasonable. Hence, we are of the view that the same does not require any interference. Consequently, we reject the appeal filed by the Department. The cross-objection also stands disposed of. (Dictated and pronounced in open court)
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2010 (3) TMI 1225 - KARNATAKA HIGH COURT
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... ... ..... me, neither the appellants nor the counsel for the appellants have removed the office objections. Two months have lapsed after the order dated 22-01-2010 and till now the office objections have not been removed nor the appellants represented before the court today. Therefore, there is no other option but to dismiss the appeal. Hence the appeal is dismissed for non-prosecution as the appellants are not diligent in prosecuting the case. Order accordingly.
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