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2012 (2) TMI 588
... ... ... ... ..... in this regard. From the above it can be seen that the petitioner has good prima facie case and several arguable issues. Additionally the petitioner had also pressed financial hardship in service. Considering, the facts and circumstances of the case, the petitioner is allowed to deposit 25 of the penalty within a period of four weeks from today upon which the appeal shall be entertained by the Commissioner on merits. There shall be stay till disposal of such appeal. Before closing we may observe that such intervention by the High Court in exercise of writ juridiction could be made only in exceptional case and not as routine manner. We are prompted to do so only in the facts of the present case. Rest of the prayers of the petitioner are not examined in this petition leaving it open for the Appellate Authority to consider the same in accordance with law. Rule is made absolute accordingly. In view of the order passed in the main application Civil Application stands disposed of.
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2012 (2) TMI 587
... ... ... ... ..... , while the departmental appeal was being heard by the Bench, the learned counsel Shri A.V. Raghuram has objected to the CIT(A) not considering the all the grounds raised before him and pointed out that the decision has been given only in respect of the additional ground. The counsel has not filed cross objections against the order of the CIT(A) but has merely raised n issue that the CIT(A) has omitted to adjudicate on certain grounds, in the course of hearing of the departmental appeal. Applying the principle laid down by CIT Vs Assam Shipping & Travels (198 ITR 1) and Linklaters LLP Vs. ITO International Taxation, Ward 1(1)(2), Mumbai, we are of the opinion that the Tribunal can decide the issue and therefore, we remit the issue back to the file of the CIT(A) to pass order adjudicating on the other grounds raised by the assessee before him. 14. In the result the appeals of the Revenue are allowed for statistical purposes. Order pronounced in the open court on 10.2.2012
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2012 (2) TMI 586
... ... ... ... ..... t the assessee could not do during last several years, it cannot be expected to do now in the remand proceedings before the AO. Even, there was no basis whatsoever provided for remanding the matter to the file of the AO because even before the Tribunal the basic documents mentioned above have not been furnished. Therefore, we do not find it proper even to remand the matter to the file of the AO. Considering the facts and circumstances noted above and in the absence of any reliable and cogent evidence on record, we are not inclined to interfere with the orders of the authorities below in respect of transactions conducted by M/s. Labh Investments of Mumbai. To that extent the orders of the authorities below are maintained and part of this ground of appeal of the assessee is dismissed. 8. No other point is argued or pressed. 9. In the result, the appeal of the assessee is partly allowed on both the above grounds as indicated above. Order pronounced in the open Court 07/02/2012.
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2012 (2) TMI 585
... ... ... ... ..... a government recognized laboratory. Learned advocate for the respondents vehemently opposes the prayer for retesting on the ground that since on both counts the samples have failed the tests, no order may be passed. Having heard the learned advocates for the parties and considering the facts and circumstances of the case, the writ petition is disposed of by directing the Authorized Officer, Food Safety and Standard Authority of India, to draw samples of the articles in question within 48 hours from the date of communication of this order and shall send it to Export Inspection Agency at 14/1B Ezra Street, Kolkata for undertaking an analysis of the samples of the articles and such analysis shall be made within a period of fifteen days thereafter. Since earlier the goods underwent two tests, it is made clear that test made pursuant to this order shall be final. No order as to costs. All parties concerned are to act on a signed photo copy of this order on the usual undertakings.
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2012 (2) TMI 584
... ... ... ... ..... ty and Standards Act, 2006 and the applicable regulations and upon such processing to permit clearance thereof within one month. 3. The petitioner is also entitled to an order of injunction restraining the respondent and each of them, their officers and subordinates from causing any delay or further delay in allowing the petitioner to process the imported consignment under the above Bill of Entry to conform to the standards laid down under the Food Safety and Standards Act, 2006 and the applicable regulations and upon such processing to clear the same on condition that the petitioner would give an undertaking before the respondent that in the event it fails in this Special Civil Application, the petitioner will within seven days of such order deposit before the Revenue authority the amount that would be claimed by the respondent-authority in that behalf. We, accordingly, pass such order. Let the matter come up for final hearing on March 21, 2012. Direct Service is permitted.
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2012 (2) TMI 583
Admission of additional evidence - Held that:- We find that the first appellate authority has indeed relied on certain averments made during the course of hearing, and written submissions filed before him,and the Commissioner of Income-tax based his conclusion on the averments made in this petition, without appreciating that the same have not attained finality, having been not accepted by the judicial authority before which the same have been made. This action of the CIT(A), in this behalf, in our opinion, is bad in law. Further, the assessing officer has no occasion to go through these averments, and offer his comments thereon. In the circumstances, we are of the view that it would be in the interests of justice to set aside the order of the CIT(A) and restore the entire issue to the file of the assessing officer, to re-examine the same and redecide the issue in accordance with law after giving reasonable opportunity of hearing to the assessee.
Levy of surcharge - Held that:- We find that issue is covered in favour of the Revenue by the decision of the Apex Court in the case of CIT V/s. Suresh N.Gupta (2008 (1) TMI 396 - SUPREME Court ), wherein it has been held that amendment to the proviso to S.113, though came into operation with effect from 1.6.2002, the same being clarificatory in nature, is applicable even in respect of searches conducted prior to 1.6.2002, and as such the assessing officer was justified in levying surcharge. We accordingly, set aside the order of the CIT(A) on this aspect, allowing this ground of the Revenue.
Cancellation of penalty levied by the assessing officer under S.158BFA - Held that:- As we have set aside the order of the CIT(A) and restored the matter to the file of the assessing officer for redeciding the issue and reframing the assessment, this penalty appeal has become infructuous, and on that ground it is liable to be dismissed. We do so, accordingly. We however, hasten to add that while reframing the assessment in accordance with law in pursuance of our directions hereinabove, the assessing officer would be at liberty to initiate fresh proceedings in terms of S.158BFA of the Act, if deemed fit.
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2012 (2) TMI 582
... ... ... ... ..... ntions and perused the relevant material available on record. In similar facts additional evidence was admitted and issue was set aside by the ITAT and restored back to the file of AO for A.Y. 2005-06. We have been informed that the AO has confirmed the addition and the appeal is now pending with the CIT(A). We are inclined to admit the additional evidence as on the same basis ITAT in preceding year has accepted the same and restored it back to the file of AO. The setting aside of the matter to AO will not be of much use as the first appellate authority i.e. CIT(A) is seized with the matter for A.Y. 2005-06. In these circumstances, it will be appropriate to set aside this issue now to the file of CIT(A), to decide the same in accordance with law along with keeping in view his order in assessee’s case for A.Y. 2005-06. We order accordingly. 9. In the result, assessee’s appeal is partly allowed for statistical purposes. Order pronounced in open court on 29-02-2012.
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2012 (2) TMI 581
... ... ... ... ..... ainst bank guarantee in the assessment year in which right to receive the said release of retention money accrued to the assessee unconditionally. The learned Departmental Representative also did not dispute the above contention of learned Authorized Representative at the time of hearing. 10. In view of above facts and decisions, and particularly that similar issue has been considered by the Hon’ble Mumbai High Court in the case of Associated Cables Pvt. Ltd. (supra) which has been followed by the learned CIT (A), we do not find any reason to interfere with the order of Ld.CIT (A). Hence, we uphold his order and reject the ground of appeal taken by the department.” 4 Accordingly, to maintain the rule of consistency, we follow the earlier order of the Tribunal in assessee’s own case and decide the issue in favour of the assessee and against the revenue. 5 In the result, appeals filed by the revenue are dismissed. Order pronounced on the 8th, day of Feb 2012.
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2012 (2) TMI 580
... ... ... ... ..... efore, be held as invalid and without jurisdiction hence be cancelled.” In CO No. 1/Ind/2012, the assessee has raised the following ground - “That on the facts and in the circumstances of the case and in law, as the assessment has been made in the status different than the status shown in the return hence the assessment is bad in law and, therefore, be cancelled.” 10.1 We have considered the rival submissions and perused the material available on file. Since we have affirmed the stand of learned Commissioner of Income Tax (Appeals) on the above issue, therefore, the cross objections filed by the assessee have remained for academic interest only, therefore, the same have become infructuous. Finally, the appeals of the revenue are dismissed and the Cross Objections of the assessee are disposed of being infructuous. This order was pronounced in the open in the presence of learned representatives from both the sides at the conclusion of the hearing on 8.2.2012.
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2012 (2) TMI 579
Registration under Section 12AA and approval under Section 80G - Held that:- By sub-clause(3) incorporated in section 12AA vide which if after granting registration it is found by the ld. CIT that the activities of the Trust are not carried out in furtherance of its charitable objects, he can cancel the registration granted to the Trust. So, when these provisions are read in conjunction, and a harmonious interpretation is given to them, we find that the view taken by the Coordinate Benches in numerous successive cases, some of which we have mentioned herein above, is very logical, and the same we are bound to follow.
Accordingly, we cannot sustain the order of ld. DIT(E) in refusing to grant registration and consequent refusal to grant approval u/s 80G of the Act. No fruitful purpose will be served by restoring the issue to the file of ld. DIT(E). Consequently, we set aside the finding of the DIT(E) and direct him to grant registration u/s 12AA and also to grant approval u/s 80G to the assessee-Trust. Appeal filed by the assessee stands allowed
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2012 (2) TMI 578
... ... ... ... ..... equired to be adjusted before determining the gross total income and as the gross total income was 'Nil' the assessee was not entitled to claim deduction under Chapter VI-A which includes Section 80-I also.” 6. In view of the law laid down by the Apex Court as aforesaid, there is no error in the order passed by the Tribunal. As such, no case for interference is made out. Accordingly, the substantial question of law as framed is answered against revenue and in favour of the assessee. ….” Since the issue in the instant case is directly covered by the judgment of the Hon’ble jurisdictional High Court cited supra, we are of the view that the order of the first appellate authority directing the AO to set off loss from windmill business against other heads of income of the assessee is justified and no interference is called for. 7. In the result, the appeal filed by the revenue is dismissed. Order pronounced in the open court on 2nd February, 2012.
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2012 (2) TMI 577
... ... ... ... ..... ut did not appear before the adjudicating authority. The adjudicating authority has not exercised his powers in accordance with law to call the witnesses. Therefore, we hold that the impugned proceedings are in violation of the directions given by this Tribunal vide order dated 01/02/2001. 7. In the interest of justice, we are of the opinion that the matter should go back to the adjudicating authority to follow the directions given by this Tribunal on 1st February, 2001 to adjudicate the case and to pass an order in compliance with the direction given by this Tribunal vide order dated 01/02/2001 within 90 days of the receipt of this order with a direction to the appellant that the appellant shall appear before the adjudicating authority as and when called for. 8. The impugned order is set aside in view of the above directions and remand the matter back to the adjudicating authority as directed above. The appeal is disposed of accordingly. (Operative part pronounced in Court)
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2012 (2) TMI 575
... ... ... ... ..... was extended to the assessee on the basis of a certificate issued by the project implementing authority, which is the State Government and, therefore, no fault can be found with the assessee in claiming the benefit of the exemption notification. If the certificate issued by the project implementing authority, namely, the State Government is later on found to be erroneous, the assessee cannot be penalized especially when there is no allegation that the certificate has been obtained fraudulently. Moreover, it is not in dispute that even if the assessee is held liable to pay duty, the assessee was liable to claim refund of the said duty as per the then existing import and export policy. In these circumstances, the present case being a case of revenue neutral, no fault can be found with the decision of the CESTAT in deleting duty, penalty and interest imposed upon the assessee. Accordingly, we see no merit in the appeal and the same is hereby dismissed with no order as to costs.
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2012 (2) TMI 574
... ... ... ... ..... taining the cost of construction on estimate basis was highly unjustified. The ld. CIT(A), therefore, rightly decided the issue in favour of the assessee for quashing the reference itself. Further, the assessee has been granted deduction u/s. 80IB(10), which would clearly indicate that the reference to the DVO was highly unjustified. We, therefore, confirm the finding of the ld. CIT(A) in holding that the reference to the DVO is unjustified in the matter in dispute. The issue is also covered by the decision of Hon’ble Supreme Court in the case of Sargam Cinema (supra) in favour of the assessee. Once the reference to the DVO is held to be unjustified, the resultant addition would stand deleted. We, therefore, do not find any justification to interfere in the finding of the ld. CIT(A). The departmental appeal has no merit and is, therefore, dismissed. 8. In the result, the departmental appeal is dismissed and the cross-objection of the assessee is dismissed as withdrawn.
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2012 (2) TMI 573
... ... ... ... ..... as is held in adjudication order for that period, at the appropriate rate followed by interest payable at the rate prevailing during the relevant period. There shall be no penalty for that period also. 6. So far as the show cause notice dated 29/12/05 is concerned, learned Counsel says that this notice comprises the period from 1/4/05 to 30/09/05. For this period, the appellant shall deposit the service tax liability with interest following the Apex Court decision. However, the penalty may be waived. For the reasons aforesaid, we also direct that service tax for the undisputed category of service provided in the adjudication shall be realized from the appellant for the period covered by the show cause notice dated 29/12/2005 followed by interest at appropriate rate. There shall also be waiver of penalties in this case. In the result, both appeals are allowed granting relief to the extent indicated against each appeal as stated above. (Dictated and pronounced in open court.)
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2012 (2) TMI 572
... ... ... ... ..... ions, perused the material available on record and the decisions relied on by the Ld. Authorised Representative of the assessee cited supra. We find that on the issue of disallowance u/s. 14A, this Bench of the Tribunal has been taking a consistent view that this disallowance should be restricted to 1 of dividend income. Following the same, in this appeal also we hold that the disallowance u/s 14A for earning exempt dividend income should be restricted to 1 of dividend income. The Assessing Officer is accordingly directed to do so and work out the quantum of disallowance. This ground of appeal of the assessee is allowed as directed above.” In view of the above, we find restrict the disallowance u/s. 14A of the Act to 1 of total exempt income and direct the Assessing Officer to work out the quantum of disallowance accordingly. This ground of appeal of revenue is partly allowed. 5. In the result, appeal of the revenue is partly allowed. 6. Order pronounced in open court.
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2012 (2) TMI 571
... ... ... ... ..... . 65 We have heard the ld DR as well as the ld Sr counsel for the assessee and considered the relevant material on record. As regards the issue of excise duty and sales tax not to be included in the total turnover is concerned, the same is settled by the decision of the Hon’ble Supreme Court in the case of Lakshmi Machine Works reported in 290 ITR 664. Accordingly, excise duty and sales tax cannot be included in the total turnover for the purpose of computation of deduction u/s 80HHC. 66 As regards the miscellaneous income is concerned, the issue is now settled by the decision of the Hon’ble Supreme Court in the case of Commissioner of Income-tax v. K. Ravindranathan Nair reported in 295 ITR 228. Accordingly, the Assessing Officer is directed to re-compute the deduction in light of the decision of the Hon’ble Supreme Court (supra). 67 In the results, appeals filed by both revenue and assessee are partly allowed. Order pronounced on the 8th, day of Feb 2012.
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2012 (2) TMI 570
... ... ... ... ..... tion, allow the assessee an opportunity and necessary conclusion may be drawn. It was submitted that the Assessing Officer has not completed the verification nor reconciled the amount. Therefore, the grievance. We therefore, direct the Assessing Officer to complete the verification expeditiously and delete the addition after giving due opportunity to the assessee. He is directed to implement the orders of the CIT (A) on this issue. Ground is considered allowed for statistical purposes. 10. Ground No. 7 & 8 pertains to the issue of levy of interest under section 234B and 234D. Even though the issue of levy of interest is consequential in nature, the Assessing Officer is directed to examine the issue after giving an opportunity to the assessee before levying any interest under section 234B & 234D, if applicable while giving effect to this order. With these directions, these grounds are considered as allowed. 11. In the result, assessee’s appeal is partly allowed.
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2012 (2) TMI 569
... ... ... ... ..... ereby direct the. Assessing Officer to include the amount of ₹ 42,55,267/- as interest from debtor of CNFC division in the calculation of deduction u/s. 80IB of the 1. T Act” On perusal of both the orders and keeping in view of the fact that the facts for this impugned order are similar to that of the assessment years 2000-01, 2001-02 & 2003- 04, we find no infirmity in the order of the ld. CIT(A) who has followed the order of this Tribunal.” 5.1. Keeping in view of the fact that the ld. Assessing Officer has categorically mentioned in 3rd para of the assessment order that the interest income derived from debtors on late payment, we find no infirmity in the orders of ld. CIT(A) in directing AO to include an amount of ₹ 44,43,359/- for computation of deduction u/s 80IB of the Act. Therefore we confirm the same and dismiss the appeal of the revenue. 6. In the result the appeal of the Revenue is dismissed. Order pronounced in the court on 10.02.2012.
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2012 (2) TMI 568
Whether the Government has the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the Constitution?
Whether the recommendations made by the Telecom Regulatory Authority of India (TRAI) on 28.8.2007 for grant of Unified Access Service Licence (for short `UAS Licence') with 2G spectrum in 800, 900 and 1800 MHz at the price fixed in 2001, which were approved by the Department of Telecommunications (DoT), were contrary to the decision taken by the Council of Ministers on 31.10.2003?
Whether the exercise undertaken by the DoT from September 2007 to March 2008 for grant of UAS Licences to the private respondents in terms of the recommendations made by TRAI is vitiated due to arbitrariness and malafides and is contrary to public interest?
Whether the policy of first-come-first-served followed by the DoT for grant of licences is ultra vires the provisions of Article 14 of the Constitution and whether the said principle was arbitrarily changed by the Minister of Communications and Information Technology (hereinafter referred to as `the Minister of C & IT’), without consulting TRAI, with a view to favour some of the applicants?
Whether the licences granted to ineligible applicants and those who failed to fulfil the terms and conditions of the licence are liable to be quashed?
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