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Showing 301 to 320 of 1010 Records
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2011 (7) TMI 1101 - ITAT MUMBAI
Capital gains on account of transfer of leasehold rights in a plot of land - Assessee's contention was section 50C would apply only to “a capital asset, being land or building or both” and that it did not apply to any leasehold rights - AO, held that the word “land” included freehold as well as leasehold land and since the assessee held leasehold rights, they were also covered by the section - Such decision was based on Section 27(iiib) - CIT(A) held that section 50C cannot be invoked because what the assessee transferred was only the leasehold rights in the land and the building and not the land or building per se
HELD THAT:- We are unable to find fault with the decision of the CIT(A) that section 50C cannot be invoked to a transfer of leasehold rights. The section applies only to capital assets being land or building or both. It does not in terms include leasehold rights in the land or building within its scope.
AO's decision was based on Section 27(iiib), this provision has been expressly limited in its application to sections 22 to 26, which deal with the computation of the income under the head “Income from house property”. It has not been made applicable to the computation of capital gains.
Also, the rights mentioned in the provision are rights over the building and any rights over the land have not been included in the section. In any case, since the section 27(iiib) has not been extended to the computation of capital gains u/s 45 and is limited to the computation of the income under the head “Income from house property”, the conclusion of the CIT(A) that section 50C cannot be invoked where leasehold rights in land or building are transferred, seems to us, to be correct. We accordingly affirm the decision of the CIT(A) - Decision in favour of Assessee.
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2011 (7) TMI 1100 - SUPREME COURT
Nature of the consignments concerned with their dates and the number of bottles packed with beverages brought within the municipal limits with their weight;
Proof regarding the fact that these bottles were not sold within the municipal limits to wholesalers, retailers or to any other person.
Number of bottles covered by the consignments concerned which were subsequently taken out as empty bottles beyond the municipal limits for recycling and weight of such empty bottles.
Whether the bottles which are actually found to have been taken out of the municipal limits were the very same bottles containing beverages brought within the municipal limits by way of relevant consignments?
Whether the value of such bottles and amount of octroi duty on their weight was passed on to the consumers or not?
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2011 (7) TMI 1099 - GOVERNMENT OF INDIA
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... ... ..... o be settled for that month only. The argument advanced by applicant that gain and loss may be worked out for the entire period of 6 months has no legal backing and therefore cannot be accepted. Government notes that Commissioner (Appeals) has rightly relied upon provisions of para 69 of Petroleum Products Manual dealing with loss of condonation in refineries which stipulates that loss/gain is to be worked out on a monthly basis and same is to be adjusted on monthly basis. The gain in any month cannot be allowed to be set off against loss in subsequent month. The guidelines are quite clear and there is no reasons for not following them. The contention of applicant are not supported by any laid down guideline or instruction and therefore cannot be accepted. 9. In view of above circumstances, Government finds no infirmity in the impugned orders-in-appeal and therefore upholds the same. 10. Revision applications are rejected being devoid of merit. 11. So ordered.
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2011 (7) TMI 1098 - GOVERNMENT OF INDIA
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... ... ..... vided copies of export invoices before the appellate authority as a proof of duty payment. They had also submitted a correlation statement indicating Excise Invoice No. in respect of each ARE-1. Commissioner (Appeals) has examined all the documents and found that the ARE-1 does not contain the reference of duty paying documents/Invoices. The Export Invoice No. are given on the ARE-I but said export invoices do not have any cross-reference of Central Excise Invoices on which duty was paid. In the absence of such references, it is not possible to correlate the export goods with the said duty paying document. The correlation chart is of no help as there is no any cross-reference of duty paying documents in the ARE-1/Export Invoice. As such the duty paid character of exported goods is not proved. In view of above. Government finds no infirmity in the impugned Order-in-Appeal and uphold the same. 8. Revision Application is rejected being devoid of merit. 9. So, ordered.
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2011 (7) TMI 1097 - GOVERNMENT OF INDIA
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... ... ..... emsp;Government observes that department is considering the place of removal on factory gate ignoring the terms and conditions of sale agreement. Commissioner (Appeals) has held that in case of export, the place of removal is not the factory gate but the place where delivery of consignment is given to buyer. He has further directed the department to determine the place of removal and then decide the assessable value in terms of Section 4. The respondent is contended that in their case the sale has taken place of port of export where delivery of goods was given to buyer as the sale contract was on FOB basis. Government, keeping in view the discussion made in the foregoing para, finds the impugned Order-in-Appeal as legal and proper and therefore upholds the same. The original authority may decide the matter afresh after affording reasonable opportunity of hearing to the respondent. 12. The revision applications are rejected being devoid of any merit. 13. So ordered.
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2011 (7) TMI 1096 - GOVERNMENT OF INDIA
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... ... ..... e Excise authorities/Customs authorities had no occasion to carry out the necessary verification. The switching from one scheme to other without following the prescribed procedure would lead to fraud and administrative inconvenience. Hon’ble Supreme Court has held in the case of Mangalore Chemicals & Fertilizers Ltd. v DCCE - 1991 (55) E.L.T. 437 (S.C.), that “Distinction to be made between procedural condition of technical nature and substantive condition - Non observation of the former is condonable while that of the latter not condonable as it is likely to facilitate commission of fraud and introduce administrative inconveniences”. 9. In view of above Government holds that the rebate claim under Rule 18 of Central Excise Rules, 2002 is not admissible in this case. Government finds no infirmity in the impugned Order-in-Appeal and therefore upholds the same. 10. The revision application is rejected being devoid of merit. 11. So, ordered.
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2011 (7) TMI 1095 - ITAT DELHI
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... ... ..... a India Ltd. The ld. DR was questioned whether the facts of the two case are in pari-materia or not, and it was submitted that the facts are the same. It was also fairly conceded that the decision in the case of Living Media India Ltd. reached up to Hon’ble Supreme Court and the decision of the Tribunal was upheld. 4. We have considered the facts of the case and submissions made before us. Admittedly, the facts of this case are in pari-materia with the facts of Living Media India Ltd. In that case, the assessee has not been found liable for deduction of tax at source. Respectfully following the decision in that case, it is held that the assessee is also not liable to deduct tax at source from payments made to the advertising agents. Since there is no default committed by the assessee in respect of deduction of tax at source, it is also not liable to pay any interest. 5. In the result, the appeal is dismissed. The order was pronounced in the open court on 15 July, 2011.
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2011 (7) TMI 1094 - GOVERNMENT OF INDIA
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... ... ..... iples laid down in abovesaid case laws, Government is of the considered opinion that total denial of claimed rebate in respect of exported goods would not be appropriate in the interest of justice. Government, therefore is inclined to allow the claimed rebates if otherwise admissible as per law, subject to the condition that rebate claim is sanctioned as per input/output ratios approved now on the basis of relevant data/records, and same is also well within prescribed SION Norms notified in relevant EXIM Policy and the Central Excise invoices are duly verified by the jurisdictional Central Excise Range Superintendent. 14. In view of above discussions and findings, Government modified the impugned order-in-appeal to above extent and remand back the case matter to the original authority to consider and sanction the claimed rebates as per the observations given in the preceding para. 15. Revision application is thus disposed off in terms of above. 16. So ordered.
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2011 (7) TMI 1093 - GOVERNMENT OF INDIA
Rebate - duty paying documents - Scrutiny of documents submitted by respondent revealed that all the said documents pertain to M/s. Ginni Filament Ltd., Unit-II, Mathura. Thus the manufacturer (Ginni Knit Processing, Mathura) did not submit any evidence in support of payment of duty on invoices issued by them - The original authority held that rebate claimant was not a manufacturer and the manufacturer had not paid the duty thus, the rebate of duty cannot be claimed by M/s. Ginni Filament Ltd., Unit-II, Mathura, in terms of Section 11B of CEA, 1944.
Held that: - there is apparently a grave error of law on the part of the party which can not be brushed aside as a technical or procedural lapse - Government observes that this is case of clerical/computer printing mistake which Department has ignored. In fact, all the particulars i.e. Central Excise Registration No., address, Cenvat debit entry No. etc. on the said invoices are of M/s. Ginni Filament Ltd., Unit-II and only the name of unit is misprinted. Department has not considered these vital facts and acted in a mechanical manner especially when they have admitted that there is no unit in the name of M/s. Ginni Knit Processing. Government observes that there are catena of Court’s judgments that export benefits should not be denied on the ground of procedural lapses, when substantial condition of any scheme/benefit is complied. In the instant case, the substantial condition of payment of duty and export of goods is complied and hence rebate claim can not be rejected on such technical procedural lapses - revision rejected - decided in favor of assessee.
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2011 (7) TMI 1092 - CESTAT MUMBAI
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... ... ..... he value of painted bottles, but if the painting on plain glass bottles is done after their clearance from the factory, no duty would be chargeable. The ratio of this judgment is that the goods must be assessed to duty in the form in which the same are cleared from the factory. Applying the ratio of this judgment to the present case, tinting of the base point at the dealer’s premises on the instruction of the buyers to obtain the paint of the required shade by mixing various colourants to the base paint and consequent change in value of the paint is of no relevance to the assessment of duty on the base points at the time of their clearance from the factory, as it is not the Department’s case that the process of tinting amounts to manufacture. 19. In view of the above discussions, I fully agree with my learned brother’s conclusion that the impugned order is not sustainable. The same is set aside. The appeal is allowed. (Pronounced in court on 26-7-2011)
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2011 (7) TMI 1091 - ITAT DELHI
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... ... ..... sessee is required to be admitted and assessee has to be provided with a reasonable opportunity of hearing and placing all the material on record of the AO. To grant such opportunity, we restore this appeal to the file of AO with a direction to allow the assessee a reasonable opportunity of hearing and also to place all the material on record to represent the case of the assessee. After placing all these materials on record and after giving reasonable opportunity of hearing, the AO will frame the assessment denovo as per provisions of law. We direct accordingly. 14. As we are restoring this appeal to the file of AO for denovo assessment as per directions given hereinabove, we do not express any opinion on the merits as the same has to be re-adjudicate in the light of aforementioned directions given to the AO. 15. In the result, for statistical purposes, the appeal filed by the assessee is allowed in the manner aforesaid. Order pronounced in the Open Court on 29th July, 2011.
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2011 (7) TMI 1090 - GUJARAT HIGH COURT
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... ... ..... CENVAT credit facilities. Such a conclusion, though prima facie, must be based on evidence which needs to be disclosed to the petitioners. This was not done. In our view prejudice was writ large on the face of the record. Before concluding, we may observe that in a given case, if the documents are too bulky, or otherwise too cumbersome to supply, instead of supplying copy to the petitioners, permitting inspection thereof, may also be sufficient compliance of the requirement of natural justice. In the present case, however, this was also not done. In the result, the impugned orders are quashed. Restrictions imposed are setaside. This is without prejudice to the rights of the respondents to proceed further in accordance with law, after supplying necessary materials. If the respondents wish to proceed further from the stage of issuance of show cause notice, they would supply necessary documents to the petitioners within four weeks from the date of receipt of copy of this order.
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2011 (7) TMI 1089 - KARNATAKA HIGH COURT
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... ... ..... ds for the purposes of assessment is required to be increased or decreased, (f) The question of whether any goods are excisable goods or not, (g) Whether a process is a manufacturing process or not, so as to attract levy of excise duty, (h) Whether particular goods fall within which heading, sub-heading or tariff item or the description of goods as mentioned in column No. 3 of the Central Excise Tariff Act, 1985. 43. From the aforesaid discussion, it is clear that an order passed by the Appellate Tribunal relating to the determination of any question having relation to the rate of duty of excise or to the value of goods for the purpose of assessment lies to the Supreme Court under Section 35L(b) of the Act and not to the High Court under Section 35G.” 4. In view of the above said principle laid down by this court and following the reasons assigned therein, we hold that the appeal is not maintainable u/s 35G and the appellant to work out his remedy u/s 35L(b).
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2011 (7) TMI 1088 - SC ORDER
Duty demand - classification of the items namely cheetos wheels and lehar kurkure - items classifiable under Heading 2108 of the CETA as namkeen and claimed exemption under Notification 5/99 from payment of duty. But the Revenue did not accept that classification and issued show cause notice to the appellants alleging that these items were classifiable under sub-heading 1904.10 of the CETA attracting duty @ 16% ad valorem.
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2011 (7) TMI 1087 - ALLAHABAD HIGH COURT
Maintainability of writ - submittion of form F in respect of the transactions, which were claimed by it to be by way of job-work, and on which the goods were not transferred - assessing authority has accepted all those transactions on which form F was produced and has recorded findings that in respect of the job-work of ₹ 1,26,23,771 neither form F has been produced nor other evidence has been produced on which the job-work may be verified - Held that:- From the assessment order, we find that the assessing authority has taken into account the judgment of this court and has not accepted only those transactions where the documents, or other evidence with regard to the job-work was not verified - There is no jurisdictional error in the order to interfere in the matter in the writ petition under article 226 of the Constitution of India. Without expressing any opinion on the merits of the matter, we relegate the petitioner to avail of the statutory remedy of appeal against the assessment order - Decided against assessee.
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2011 (7) TMI 1086 - KARNATAKA HIGH COURT
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... ... ..... e. Appeal is of the year 2007. Appeal is dismissed for non-prosecution.
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2011 (7) TMI 1085 - CESTAT KOLKATA
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... ... ..... should have been heard by the adjudicating authority before coming to a conclusion. In our considered opinion there is violation of natural justice while passing the impugned order. In view of the foregoing, in our considered opinion, the appellant should be put to some conditions, so that he appears before adjudicating authority to cooperate in the adjudication proceedings. Hence we direct the appellant to pre-deposit an amount of ₹ 15,00,000/- (Rupees Fifteen Lakhs only) within a period of 8 (eight) weeks from today and report compliance on 26-9-2011 to the adjudicating authority. The Appellants are also directed to file reply to the show cause notice within 4 (four) weeks from today i.e. on 29-8-2011. The adjudicating authority will take up the matter for de novo consideration on compliance of pre-deposit being reported to him by the assessee. In view of the above, Stay Petition and Appeal are disposed of by way of remand. (Pronounced and dictated in the open Court)
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2011 (7) TMI 1084 - CHHATTISGARH HIGH COURT
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... ... ..... .L.T. 781 (Tribunal) Bhillai Conductors (P) Ltd. v. Commissioner . While dismissing the CER, the Hon’ble High Court passed the following order “1. The matter is called for hearing twice. None appears nor is any representation made on behalf of the applicant. The applicant may not be interested in pursuing the matter. 2. In view of the above, the matter is dismissed for want of prosecution.”
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2011 (7) TMI 1083 - SUPREME COURT
Whether Rule 44-I inserted in the Prevention of Food Adulteration Rules 1955 by the said Amendment Rules, Prevention of Food Adulteration (Eighth Amendment) Rules, 2005 [vide Notification No.GSR 670(E) dated 17.11.2005 of the Ministry of Health and Family Welfare, Government of India] is unconstitutional and invalid?
Whether Rule 44-I is inconsistent with the Act and beyond the rule making power of the Central Government?
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2011 (7) TMI 1082 - ALLAHABAD HIGH COURT
Whether the applicant shall not be entitled to the benefit of section 4A of the U. P. Trade Tax Act, 1948 qua the investment of ₹ 16,74,368 made towards purchase of dyes and moulds, as also in respect of expenditure made towards purchase of hydraulic oil to the tune of ₹ 61,468?
Held that:- Merely because there has been mention of the words dyes and moulds in the details furnished by the revisionist towards capital fixed investment, it cannot be said that the same were not an essential part of plant and machinery.
The issue as to whether the investment made towards dyes and moulds by the revisionist in the facts of the case would answer the description of investment towards plant and machinery as was provided for under the unamended Act has to be gone into with reference to the material fact relevant for deciding the same. Accordingly, the order of the Tribunal dated October 11, 2001 is hereby set aside. The second appeal No. 152 of 2000 is restored to its original number. Let the Tribunal re-examine the matter in the light of the observations made hereinabove, preferably within three months from the date a certified copy of this order is filed before it.Trade tax revision is allowed.
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