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Showing 261 to 280 of 769 Records
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2012 (4) TMI 568
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... ... ..... The tax amount involved in the present appeal is ₹ 2,07,085/- and at present the Board has issued instructions fixing monetary limit of ₹ 10 lacs for challenging the orders in the High Court. In view of the Board circular and without entering into the merits of the case, the present appeal is dismissed.
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2012 (4) TMI 567
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... ... ..... he same to be in the capital field because the assessee had valued its property with the intention of selling them. The learned CIT(A) confirmed the addition. The learned AR argued before us stating that these expenditures are revenue in nature and may be allowed. The learned DR supported the orders of the revenue. After hearing both the sides and perusing the records available before us, we are of the view that these expenditures fall in the revenue field and not in capital field as held by the revenue. Expenditure incurred by the assessee for revaluation of the asset do not bring any enduring benefit to the assessee. These expenses are routine in nature and has to be written off as revenue expenditure. Accordingly, we hold this issue in favour of the assessee. o p /o p 19. In the result, the appeal of the Revenue is partly allowed for statistical purposes and the Cross Objection of the assessee is allowed. o p /o p Order pronounced in the open Court on 30-04-2012. o p /o p
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2012 (4) TMI 566
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... ... ..... as on July-August, 2010 yet the detention order was in fact made on 9.9.2011. 13. Although the respondents have relied upon the decision for there are some observations in Sheetal Manoj Gore (supra) suggestive of a different approach which the Courts ought to adopt while considering the issue of delay yet we notice that the observations were fact-dependant. In this case, having noticed all the materials which could have been used by the detaining authority to make an order under Section 3/8 were with it in July-August, W.P. (CRL) 167/2012 Page 8 2010 despite which no order was made, we are of the opinion that the order is untenable on the ground of inordinate delay. 14. In view of the above conclusion, we are of the opinion that the impugned order of detention dated 9.9.2011 under Sections 3 and 8, COFEPOSA cannot be sustained and is hereby quashed. The writ petitioner shall be released forthwith unless required in any other case. The writ petition is allowed in above terms.
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2012 (4) TMI 565
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... ... ..... ere it is claimed that no expenditure is incurred for earning tax-free income. Rule 8D provides the method of computing the disallowance. Sub-rule (i) is not applicable to the facts of the case. Therefore, the AO has applied only sub-rule (2) and that too in so far as its clauses (ii) and (iii) are concerned. He has not taken into account clause (i) which is also not applicable to the facts of the case. The rule does not contemplate apportionment of the expenditure as done by the assessee or the ld. CIT(Appeals). However, it is also a fact that the AO has not recorded reasons as to why computation furnished by the assessee is not correct. In the light of this omission, we uphold the order of the ld. CIT(Appeals) on peculiar facts of this case as she has worked out reasonable amount of disallowance taking into account the ratio of tax-free income and taxable income arising from shares and scrip. 3.3 Thus, ground no. 7 dismissed. 4. In the result, the appeal is partly allowed.
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2012 (4) TMI 564
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... ... ..... a Overseas and Properties Pvt. Ltd. v. Union of India reported in 2003 (158) E.L.T. 135 (Bom.)? 2. By consent, the order of the CESTAT dated 16-1-2004 as also the order-in-original dated 28th June, 1999 and the order of the Commissioner (Appeals) dated 30th June, 2003 are quashed and set aside and the matter is restored to the file of the adjudicating authority for fresh consideration on merits and in accordance with law. 3. The contentions of both the parties are kept open. 4. Parties are at liberty to adduce additional evidence. 5. The appeal is disposed of accordingly with no order as to costs.
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2012 (4) TMI 563
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... ... ..... red the issue in the light of the above legal pronouncement. Specially the pronouncement of the Hon'ble Bombay High Court was not available at that time, hence, the Assessing Officer’s assessment order was devoid of merits as also the law applicable . Now we have got certain guidelines, though can not be said to be exhaustive or complete, but on these lines, the Assessing Officer is expected henceforth to compute the correct disallowance, needless to say after providing an adequate opportunity of hearing to the assessee. Therefore, the matter is restored to be decided afresh, hence, this ground of the assessee may be treated as allowed for statistical purposes. 18. As a result, we summarize the result as under 1. Revenue’s appeals for A.Ys. 2004-05, 2005-06, 2006-07 & 2007-08 are dismissed. 2. Assessee’s appeals for A.Ys. 2005-06 & 2007-08 are treated as allowed only for statistical purposes. 3. Assessee’s CO for A.Y. 2004-05 is dismissed.
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2012 (4) TMI 562
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... ... ..... eed not go into the said dispute, as the learned Counsel representing the respondent/writ petitioner submits, in the appeal pending before the Customs Excise and Service Tax Appellate Tribunal all these issues will be gone into and he has no objection in setting aside the interim order of the learned Single Judge. 2. Accordingly, order dated 19-3-2012 in W.P(C). No. 6079 of 2012 of the learned Single Judge is set aside. The parties are directed to approach the Customs Excise and Service Tax Appellate Tribunal, where the appeal is pending and the Tribunal shall dispose of the same within three months from the date of receipt of a copy of this judgment. 3. The Writ Appeal is allowed as indicated above.
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2012 (4) TMI 561
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... ... ..... .” 20. The Hon’ble Supreme Court in Grindlays Bank v. Central Government Industrial Tribunal - 1980 (Supp.) SCC 420 observed that inherent power of review are only available for a procedural review and not for a substantive review. Whenever any procedural defect is committed while passing an order, this Tribunal, even where statute does not provide clearly, can use the power of review, hence, the procedural review is available. 21. On perusal of the records, it is not in dispute the impugned order, which has sought to be reviewed by the Counsel for the petitioner, is not maintainable in view of the facts and circumstances mentioned above and there is no provision for enabling this Tribunal under FER Act, 1973 to review its own order, which has been passed on merits. As a result, the petition is not maintainable neither in facts or in law. In the above circumstances, the prayer for review the order, dated 21-2-2011 is rejected by dismissing the petition.
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2012 (4) TMI 560
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... ... ..... High Court in the case of Shree Rama Multi Tech Ltd. v. Union of India reported in 2011 (267) E.L.T. 153 (Guj.) has held that even if the procedure prescribed in this regard in Rule 57CCC is not followed, the assessee cannot be deprived of its benefit. We are of prima facie view that this judgment of Hon’ble Gujarat High Court is also applicable to the facts of this case. 9. In view of the above discussion, we are of the view that the appellant have prima facie case in their favour and the requirement of pre-deposit of the amount demanded from them along with interest and penalty would cause undue hardship and the amount of ₹ 4,51,574/- already paid by the appellant is sufficient for hearing of this appeal. In view of this, the requirement of pre-deposit of balance amount of demand, interest and penalty is waived for hearing of the appeal and recovery thereof is stayed till the disposal of the appeal. (Operative portion of the order pronounced in the Court)
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2012 (4) TMI 559
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... ... ..... literate villager could not have taken an excuse that they did not know the legal provision relating to limitation to file such application. It is much more so when it being a company paying excise duty on regular basis is guided by legal experts on regular basis. Secondly; when the appellant is guided by experts in the subject (excise), it is not possible to hold that they would not know the provisions which govern limitation because such provisions are frequently applied by the lawyers in Tribunal for filing applications and thirdly in the absence of any details mentioned in the application, it was rightly held that the alleged cause pleaded was not a bona fide cause. 10. In the light of foregoing discussion, we are completely in agreement with the view taken by the Tribunal and hence dismiss the appeal as being devoid of merit. 11. However, the appellant would always be at liberty to file an appeal against the main order in accordance with law. 12. No cost.
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2012 (4) TMI 558
Clandestine removal - Gutkhas - Revenue entertained a view that the assessee has overstated the consumption of supari as main raw material for the manufacture of Gutkha to the tune of 8.70% and 2.33% respectively - Held that: - demand cannot be sustained without any tangible evidence, based only on inferences involving unwarranted assumptions - appeal allowed.
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2012 (4) TMI 557
Clandestine removal - penalties for non-accountal of finished goods in RG-1 register and for non-accountal of billets in RG-1 register - The allegations of clandestine removal are primarily based upon the documents recovered from the residential premises of Shri Bansal showing purchase of furnace oil and small quantity of aluminum scrap. In addition, the Revenue has also relied upon the documents recovered from the transporter’s premises showing booking of various trucks in the name of M/s. Aum.
Whether in the peculiar facts of the case, there was sufficient cogent, unimpeachable, relevant and credible material evidence so as to establish the case against the appellant company applying the test of preponderance of probability?
Held that: - In the entire records of proceedings, there is no evidence to indicate that there was clandestine manufacturing. There is no independent tangible evidence on record of any clandestine purchases or receipt of the raw materials required for the manufacturing of the alleged quantity of finished goods for its clandestine removal from the factory. In the entire notice and the order there is no satisfactory and reliable independent evidence as regards the unaccounted manufacture and or receipt of the huge quantities of raw materials. There is also no cogent evidence about any freight payment for any such movement.
The demand confirmed against M/s. Aum Aluminum P. Ltd. on the charges of clandestine removal is set aside along with setting aside the penalty of equivalent amount imposed upon them u/s 11AC of the Act. Penalties imposed upon Shri G.G. Bansal, Shri V.N. Agarwal and M/s. Vinviv Holding & Trading Co. P. Ltd. are also set aside.
The confiscation of the section seized from factory of M/s. Aum Aluminum P. Ltd. for their non-accountable is upheld, however, redemption fine is reduced from ₹ 8 lakhs to ₹ 75,000/- and penalties imposed on M/s. Aum Aluminum P. Ltd. on this account is reduced from ₹ 1 lakh to ₹ 50,000/-
Appeal disposed off - decided partly in favor of appellants.
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2012 (4) TMI 556
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... ... ..... entially, a question of fact and once such finding had been recorded concurrently by two appellate authorities in assessee’s favour then such findings would be binding on the High Court, while hearing appeal under Section 35G ibid. Indeed, this Court cannot in this appeal again examine de novo this fact-finding issue, which does not involve any question of law much less substantial question of law. 7. Learned counsel for the appellant (Revenue) then contended that this Court should interpret Rule 57(T)(3) and frame a substantial question of law as its interpretation. We do not agree. In the first case, this issue does not arise for consideration and hence, it is not necessary to interpret Rule 57(T)(3) and secondly as and when such occasion arises, this Court would examine the issue urged by the learned counsel for the appellant in appropriate case. 8. In view of foregoing discussion, which is more than sufficient, the appeal fails and is dismissed in limine.
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2012 (4) TMI 555
Liability of excise duty - excess transportation charges - Department was of the view that since the appellant has charged excess transportation charges from his customer, in view of Rule 5 of Valuation Rules, 2000, appellant is liable to pay excise duty on excess transportation charges - Held that: - the transaction value of goods supplied in this case is to be calculated on the basis of Section 4(1)(a) i.e. the sale price of goods charged at the factory gate. Admittedly, on that price the excise duty have been paid. Merely because the appellant has made profit on transportation from the place of removal to the place of delivery, it cannot be said that the aforesaid profit has any co-relation with the goods cleared to factory gate as such he cannot be asked to pay excise duty on the freight.
Similar issue decided in the case of Baroda Electric Meters Ltd. v. C.C.E. [1997 (7) TMI 126 - SUPREME COURT OF INDIA] where it was held that the “equalized freight charged from everyone freight actually paid less than the amount collected by way of equalized freight, differential amount not includible in the assessable value since the duty of excise is on manufacture and not on profit made by a dealer on transportation”.
Appeal allowed - decided in favor of appellant.
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2012 (4) TMI 554
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... ... ..... roposed to be passed, the AETO will have to afford adequate and reasonable opportunity of being heard to the petitioner. He should also examine the facts and the sponsorship agreements before passing orders, keeping in view our observations in paragraph 16 above. 23. In these writ petitions, interim directions were issued for deposit of tax as condition for issue of NOC for holding the events. The events were permitted to be held as the petitioners deposited the tax as directed by this court. In the assessment orders to be passed under section 15 of the Act, pursuant to the disposal of the writ petitions, the AETO may raise demands including interest, subject to appropriate/suitable adjustments for tax already deposited, and subject to the petitioner being given reasonable opportunity of being heard. 24. In the result W.P.(C) Nos. 1145/2010 and 1169/2010 are allowed to the extent indicated above and all other writ petitions are dismissed. There shall be no order as to costs.
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2012 (4) TMI 553
Validity of Notification (annexure P/1) dated April 12, 2007 exempting crude edible oil from payment of entry tax extended for the period between 1st of October, 1997 to 31st of March, 2004 challenged
Held that:- The exemption which was granted vide earlier notifications was available to the petitioner up to 31st of March, 2007, but vide notification dated 12th April, 2007 it was restricted up to 31st of March, 2004, meaning thereby, for a period near about three years, the petitioner has been held liable for payment of entry tax for which, there was no power with the State Government to withdraw such exemption with retrospective effect.
Petition is allowed. Notification (annexure P/1) in so far as it relates to the petitioner only restricting the exemption of notification (annexure P/5) till 31st of March, 2004 is not sustainable under the law and is hereby quashed. The petitioner who was extended the benefit of exemption from payment of entry tax till 31st of March, 2007 vide notification (annexure P/5) shall be entitled to get the aforesaid exemption.
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2012 (4) TMI 552
Whether the order of best judgment assessment of the assessing authority as upheld by the appellate authority and the Tribunal was liable to be interfered with under article 226 of the Constitution, having regard to the facts and circumstances of the present case?
Held that:- As already held in the present case, the reasons given by the assessing authority were not irrelevant and consistently the authorities upheld the addition to the turnover. Such addition could not be weighed in golden scales, if the same is broadly justified. Some amount of guesswork is inevitable. In exercise of writ jurisdiction, this court does not sit in appeal over the decision of the statutory authorities and does not interfere unless the same are arbitrary or irrational.
Sales Tax Officer had material before him to find out, how much turnover had escaped assessment during a period of 19 days. On the basis of that material he estimated the escaped turnover for the entire year. Hence it cannot be said that there was no basis for the estimate made by the Sales Tax Officer. It may be that his estimate was an over-estimate or an under-estimate, but it cannot be said that the estimate was without any basis. In making that estimate, there was an element of guess-work which was inevitable in the circumstances of the case. If the Sales Tax Officer was compelled to adopt a rule of thumb which in a sense is an arbitrary rule, the assessee was entirely responsible for that situation. Thus view taken by the learned single judge quashing the order of assessment as upheld by the first appellate authority and the Tribunal cannot be upheld. Appeal allowed
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2012 (4) TMI 551
Tax on the sale of bottles - tax at 12.5 per cent along with interest on the balance output tax due and payable from the date of its non-payment till the date of quantification of the taxes payable by the assessee-company - Held that:- This is not a fit case for exercising writ jurisdiction permitting the petitioner to bypass the statutory remedy of appeal. The facts involved in the present case have to be reappreciated and the process of reasoning adopted by the assessing officer has to be subjected to further scrutiny by the appellate authority before applying the provisions of law contained under section 4(2) of the Act and the decision rendered in the case of Premier Breweries v. State of Kerala [1997 (12) TMI 569 - SUPREME COURT OF INDIA] .
Therefore, without venturing into any such exercise to opine one way or the other with regard to the applicability of the ratio laid down in the case of Premier Breweries v. State of Kerala [Supra] to the facts of the present case, this writ petition deserves to be dismissed keeping the contentions of the petitioner open to be urged before the appellate authority. W.P. dismissed.
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2012 (4) TMI 550
Activity of rendering telecommunication service - whether the Tribunal was legally justified in holding that the applicant's activity of rendering telecommunication service constitutes a 'commerce' within the meaning of the term in the definition of 'business' in the said section 2(5A) and that therefore the said activity constitutes 'business' for the purpose of the Bombay Act?
Whether the Tribunal was legally justified in holding that the appellant is a 'dealer' carrying on business of buying or selling of goods and that therefore his sales of scrap material, etc., effected during the said periods are liable to tax under the Bombay Act?
Held that:- The decision of the Tribunal to the extent it holds that the main activity of the assessee, viz., providing telecommunication services constitutes business activity, being an issue not raised by any of the parties and not decided by the authorities below, the Sales Tax Tribunal was not justified in travelling beyond the scope of the appeal and decide an issue which was not the subject-matter of the appeal. Accordingly, while keeping the issue open, we hold that in the facts of the present case, the Tribunal was not justified in holding that the main activity of providing telecommunication services constitutes "business" under the Bombay Sales Tax Act. The first question is answered accordingly.
In the present case, the specific case of the assessee was that selling the scrap materials was not the business of the assessee, that the Telegraph Act, 1885 under which the telecommunication services were rendered by the assessee specifically bars the assessee from carrying on any business activity and that the assessee has not collected tax on sale of scrap materials during the period in question. It is only at the insistence of the sales tax authorities the assessee has applied for and obtained registration with effect from January 31, 1985. Therefore, in the absence of any material to the contrary, the contention of the assessee that during the period in question tax has not been collected and paid on sale of scrap materials on the ground that such sales were not effected with a motive to make gain or profit could not be rejected and consequently the benefit of section 30(4) of the Maharashtra Act IX of 1989 could not be denied to the assessee. In the result, the second question is answered in the negative, i.e., in favour of the assessee and against the Revenue.
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2012 (4) TMI 549
Seizure order - rejection of representation by the transporter of the goods under section 48(7) of the Act by the Joint Commissioner (SIB/Enforcement) - Held that:- Seizure of the goods in the case at hand on the ground that the dealers are nonexisting is bad in law.
Admittedly, in the present case the goods were seized immediately on their entry in the State of U.P. without allowing the time for its exit to expire. In such situation, it is wrong to presume that the goods have been retained in U.P. for the purposes of sale. Apart from the above, as the goods were duly accompanied by the requisite documents, no presumption arises under law that they were likely to be sold within the State of U.P. Appeal allowed. The authorities were not justified in passing the order of seizure and the higher authorities committed jurisdictional error in rejecting the representation and appeal of the revisionist.
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