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Case Laws
Showing 381 to 400 of 769 Records
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2012 (4) TMI 447
Commissioner (Appeals) dismissed his Appeal dismissed on ground of limitation – Assessee contested that no show-cause notice and order-in-original received – Held that:- The department issued show-cause notice to the appellant on 25.10.1990 and order-in-original dated 15.10.1991 through registered post, the same was returned un-served with remarks “unclaimed” - it is an admitted fact that the appellant is residing on the address mentioned in the show-cause notice/order-in-original – against assessee.
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2012 (4) TMI 446
Confiscation of lieu of redemption fine - Alloy or non alloy steel - definition of alloy steel - testing of samples - held that:- What is surprising in this case is that the concerned Scientist from NML has indicated an error margin which is as high as 200%. - It is a pity that the Board has directed the field officials to apply the borrowed definition of alloy steel from the Import Schedule of the Customs Tariff for the purpose of applying export duty in its letter dt. 3.6.2008, but has not made arrangements for proper testing of boron content as is glaringly observed in this case. A test method giving results which are uncertain to the extent of 200% is of no value for the purpose of tariff determination.
The test results obtained by the customs authorities in this case indicate that 42 samples satisfied the tariff breakpoint of 0.0008%. Other 31 samples would also cross the tariff breakpoint when the positive error margin of 0.0006% indicated by NML Scientist is applied. We also note that some of these 31 had crossed the tariff breakpoint earlier in the testing done by NML the first time. Under the circumstances, it cannot be held that the appellants have misdeclared the impugned goods in regard to the declared boron content.
The arguments made on behalf of the department suggesting that the appellants should show that they had plant and machinery to produce boron steel and that they have not shown any proof that they have manufactured any standard grades of alloy steel etc. cannot be pressed against the appellants when the department has failed to discharge its initial burden to prove the alleged misdeclartion on the basis of chemical test undertaken at the NML.
No reason to uphold the confiscation of the impugned goods, imposition of redemption fine and imposition of penalties on the appellant-company and the appellant-Managing Director.
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2012 (4) TMI 445
Application filed by the Official Liquidator alleging that the Directors of the respondent company have not filed the Statement of Affairs – Held that:-It is evident that possession was taken over on 24-7-2000 of the premise and a theft had occurred in the premises on 17-10-2000 and the respondents had thereafter made efforts to approach the office of the Official Liquidator to secure the details from the records - such permission was granted on 16.02.2004 and on the examination of the available records, the Statement of Affairs was filed on 10.01.2005 - all this would indicate that the action of the respondents was not deliberate and they had reasonable cause for the delay in filing the statement of affairs – against Official Liquidator.
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2012 (4) TMI 444
Refund of duty on finalization of Provisional assessment - Unjust enrichment - held that:- the present case is rather old and there are several rounds of litigation. The petitioner had succeeded before the tribunal, who had passed a detailed order dated 27th March, 2002. The respondents thereafter did not adjudicate and passed the consequential orders till 2007. This is in spite of the fact that the petitioner had filed an application on 18th February, 2003 before the respondents to process their claim for refund. There is no explanation for delay of five years. The order dated 20th July, 2007, in fact, makes reference to another refund claim application dated 24th February, 2004.
Respondents directed to refund the duty amount along with interest as per rules.
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2012 (4) TMI 443
Demand of Service Tax on ‘works contract service’ – applicants are engaged in the activity of laying of commissioning of sewage pipeline and other civil works for Nashik Municipal Corporation - Held that: - The activity undertaken by the applicant is not for commerce and industry, therefore service tax cannot be demanded - activity undertaken by the applicant is for Nashik Municipal Corporation and as held by this Tribunal in the case of Nagarjuna Construction Co.( 2011 -TMI - 203241 - CESTAT, BANGALORE) that activities, which are concerned with welfare activity for the citizens of this country has been excluded from the liability of Service tax – in favour of assessee.
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2012 (4) TMI 442
Valuation of property - ITAT considered AO was not justified in making the addition of Rs 75 lakhs being the difference between the apparent consideration and the real value of the assets of Company formed by HUF – Held that:- Agreement dated 30.11.2002 executed between Khandelwals and Shri Sunil Bedi all the requisite clearances were obtained by the seller - vide second MoU M/s Fashion Flair International Private Limited agreed to pay Rs.6.35 crore to M/s Span Properties Private Limited for purchase of its entire shareholding subject to obtaining necessary approval for construction of a commercial building on the land in question, and that there was no material produced by the assessee to indicate that the market value of the land had gone down between December, 2000 and November, 2002 - Since the entire share holding of Khandelwas in Span Properties Private Limited was transferred to Shri Sunil Bedi, he, on account of his ownership of the entire share holding of Span Properties Private Limited, also acquired ownership of the land in question. Hence, it would be difficult for us to accept that the value of the entire share holdings of Khandelwas in Span Properties Private Limited could have been less than Rs 6.35 crore minus the liabilities of the company - AO was justified in making the addition being the difference between the apparent consideration and real value of the assets – against assessee.
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2012 (4) TMI 441
Notice to re-open the assessment as income chargeable to tax has escaped assessment - Writ petition by assessee on validity of the re-opening of the assessment – Held that:- the material gathered by the Investigation Wing provides required nexus by the reference to the names of at least three companies in which Mukesh Gupta was a Director, through which, inter alia, he was admittedly carrying on the business of providing accommodation entries for commission. These companies had subscribed for the shares issued by the assessee - assessee is linked to the business of Mukesh Gupta which leads to conclusion that income chargeable to tax had escaped assessment because of the failure of the petitioner company to furnish fully and truly all material particulars necessary for its assessment – against assessee.
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2012 (4) TMI 440
Addition to income on account of non-deduction of TDS in terms of section 40(a)(ia) – Held that:- The tenor and purport of the terms of the agreement were that it was not a case where the licensee was doing any work for the assessee even within the wider meaning of the term “any work” as defined in Section 194C - assessee running a study centre through various licensees or franchisees and the agreement is not for making any payment to the licensee for any work done for the assessee and that it was a case of sharing of fees for carrying out respective obligations under a contract – in favour of assessee.
Claim of interest paid to the Noida Authority on account of purchase of land -allowable as revenue expenditure u/s 36(1)(iii) of the Act – Held that:- In order to claim allowance in respect of interest, there should be borrowing of capital and that unpaid purchase price of an asset does not amount to borrowing of capital, though a debt may be created - the interest was paid to Noida Authority not in respect of any capital borrowed from that Authority, but on the price of the plot remaining unpaid as per the provisions of the lease deed - there being no “capital borrowed”, the interest is not allowable as a deduction u/s 37(1) – against assessee.
ITAT deleted addition made by the AO on account of disallowance of bonus paid to the Directors in terms of Section 36(1)(ii) – Held that:- It was observed in the Bombay High Court case Metplast Pvt. Ltd vs DCIT (2011 (12) TMI 320 - Delhi High Court ) that so long as the bonus or commission is paid to the directors for services rendered and as part of their terms of employment it has to be allowed and sec.36(1)(ii) does not apply – in favour of assessee.
Claim of Non-compete fee payable as revenue expenditure solely on the basis of agreement period and the mode of payment – Held that:- The period for which the assessee sought to eliminate competition was only 12 months which was too short a period to be considered as conferring an enduring benefit to the assessee and the non-compete fee was to be paid to the two persons in equal installments over a period of time – in favour of assessee.
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2012 (4) TMI 439
Proceedings against CIT - alleged lapses/irregularities in eight cases - extension of favor to assessee - Charge-memo, the dissenting note recorded by the Disciplinary Authority and the final order imposing the punishment of compulsory retirement - SCN seeking an explanation regarding alleged lapses/irregularities in eight cases completed by him were pertaining to the period of his service - Held that:- The disciplinary authority had not considered the representation of the Respondent No.1 against the disagreement note - the petitioners is unable to point out any single factor or reason which would show that the dissenting note was tentative nor has been able to show why the representation of the Respondent No.1 was not considered by the Disciplinary Authority before imposing the disproportionate punishment of compulsory retirement in the facts and circumstances - On the seven articles of charges framed against Respondent No.1, the Enquiry Officer came to the conclusion that Articles I, II, IV, and VII not proved while Articles III, V and VI partly proved but the Disciplinary Authority ultimately concluded that the "IO's finding has not been found acceptable and the charge has been viewed as 'proved' or 'fully proved' except for Article VI which was held to be substantially proved while only part (a) of the charge was held to be "not proved" – the charges did not contain any allegations that while passing the various orders or conducting the proceedings the Respondent No.1 had malafide intentions or had passed the order on extraneous considerations - decided in favour of respondent with cost of Rs. 30,000.
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2012 (4) TMI 438
Long term capital gains on Sale of two mutual fund - the expression “not less than” - AO treated the two gains as short term capital gains as the instruments had not been held for a period of more than 12 months immediately preceding the date of transfer – Held that:- To qualify as a short term capital asset, the capital asset should be held by the assessee for 12 or 36 months, but the moment the said time limit is crossed the assessee continues to be the holder/owner of the said asset, the same is to be treated as a long term capital asset - the date on which the asset is acquired is not to be excluded because the holding starts from the said date.
There is nothing in the said Section to show and hold that the time period would not include fraction of a day. The expression “not more than” clearly in this case would refer and include the date on which the asset is first held or acquired. Thus, an asset acquired on the 1st of January would complete 12 months at the end of the said year, i.e., on 31st of December and if it is sold next year and if the proviso to Section 2(42A) applies, it would be treated as a long term capital gains. - in favour of assessee.
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2012 (4) TMI 437
No MRP declared on Import of Energy Efficient Lighting Fixtures - differential duty as per MRP declared by main customer of applicant on the final product which is sold in the open market - goods confiscated – Held that:- On the condition that the applicant shall execute a bond of full value of the goods and a bank guarantee of 25% of the differential duty release the goods on compliance of the above conditions within 7 days.
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2012 (4) TMI 436
Instant application filed by the Official Liquidator under Section 537 to declare the sale held during the petition period as null and void - out of the sale proceeds of Rs. 2,55,000/- a sum of Rs. 1,70,000/- is stated to have been paid by respondent Nos. 1 and 2 to the 4th respondent, who was a secured creditor of the Company-in-liquidation and the balance sum of Rs. 85,000/- has been paid to one of the employees who was working as a Manager prior to the closure of the company – Held that:- Keeping in view and considering the fact that respondent Nos. 1 and 2 have paid amounts from their personal account even subsequent to the date of winding up order and the said amount is much more than the amount for which a direction has been sought for the direction as against respondent Nos. 1 and 2 to refund the same would not arise - the entire amount of Rs. 1,70,000/- in any event cannot be appropriated by the respondent. No. 4 alone to the detriment of any other claims of the secured creditors or employees which would have to be considered on a pari passu basis - a direction is issued to the fourth respondent to bear the advertisement expenses (not exceeding Rs. 10,000/-) for the Official Liquidator to invite claims from any persons who may have claims against the Company-in-liquidation.
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2012 (4) TMI 435
Entitlement to assessee to reduce interest paid on bank overdrafts from the interest received on FDRs and exclude profit from the sale of EDP receipts under the duty remission scheme while calculating deductions u/s 80HHC – Revenue appeal - Held that:- Ninety per cent of not the gross rent or gross interest but only the net interest or net rent, which has been included in the profits of business of the assessee as computed under the head “Profits and Gains of Business or Profession”, is to be deducted under clause (1) of Explanation (baa) to Section 80-HHC for determining the profits of the business” as per clause (1) of Explanation (baa) to Section 80-HHC – in favour of assessee.
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2012 (4) TMI 434
Whether penalty can be imposed on the assessee where additions are made under the normal provisions of the Act but actually the taxable income of the assessee is assessed under Section 115JB and there is no addition for book profits – Held that:- Though there was concealment but that had its repercussions only when the assessment was done under the normal procedure - it is the deemed income assessed under section 115JB of the Act which has become the basis of assessment as it was higher of the two and tax is paid on the income assessed u/s 115JB - the concealment did not lead to tax evasion at all - Penalty not to be imposed – in favour of assessee.
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2012 (4) TMI 433
No response to notices in lieu of Procedure for Early Redemption of Bonds - transfer of unpaid dividend account of a company to the fund established IEPF under Section 205C – Writ Petition – Held that:- Section 205 C is a salutary and virtuous provision enacted to ensure that a company does not unjustifiably and unduly enrich themselves, as the depositors have failed to stake claim and have not been paid for a period of seven years from the date the amount became due – no reason to hold that the said provisions are unconstitutional or they violate Article 14 of the Constitution - serious lapses on the part of the petitioner as no intimation of change of address ,hence could not be communicated about the premature redemption and no bother to read the terms and conditions of allotment including the early redemption clause - when a matter either on question of fact or on a question of law decided between two parties in one proceeding and the decision is final either because no appeal was taken to a higher Court or because the appeal was dismissed, neither party will be allowed in a future proceedings between the same parties to canvas the matter again.
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2012 (4) TMI 432
Clandestine removal - computation of quantity – assessee contested that the quantity computed by the Tribunal is based upon surmises and conjectures and there is no concrete evidence or material to hold that 768.03 Mt. or resin CP172SG was clandestinely sold – Held that:- Statement of Director present at the time of search admitted to clandestine removal and sale of resin CP172SG and also stated that he had partly used and consumed the resin in the manufacture of Filler Cords and PVC Tapes - the aforesaid quantum of 768.03 Mt., has been calculated by the Tribunal on the basis of the quantity purchased, less the consumption for production of PVC compound as recorded in the records/books. The Tribunal has given benefit of doubt to the Appellant and other appellants on use of resin CP172SG in the manufacture of PVC Tapes to the extent of 230 Mt - under Rule 15(1) of CCR, 2004, any input or capital goods, in respect of which cenvat credit has been taken wrongly, are liable for confiscation, so the illicitly diverted CP1725Sg resin was liable for confiscation – appellant with other parties who had dealt with the illicitly diverted resin knowingly are liable for confiscation and penalty under Rule 26 of CER, 2002 - upheld imposition of penalty - against assessee.
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2012 (4) TMI 431
Waiver and stay in respect of service tax and education and also equal amount of penalty - impugned demand is on construction of dams, roads, tunnels and bridges etc. done by the appellant in connection with execution of composite contracts - Held that:- An EPC contract was executed by the appellant under a single composite contract and the construction of dam, roads, tunnels etc. was vivisectable - the definition of “commercial or industrial construction service” permitted the appellant to exclude the cost of construction of dams, roads, tunnels etc.from the gross amount covered by the EPC contract for the purpose of payment of service tax – in favour of assessee.
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2012 (4) TMI 430
Valuation of taxable services - Section 67 - Recovery of amount through Debit notes - unloading, loading and transportation of goods to the plant - No Cenvat credit of tax paid on services of unloading, loading and transportation to bring the goods to their plant - Held that:- The contract by the appellant with their customers is for doing crushing and grading of iron ore and also for doing activities like unloading, loading and transportation necessary for this purpose - transportation activity was done by others and paid by the Appellant along with service tax payable for transportation of goods - that the amounts billed by them form part of the value of taxable service rendered and should have paid tax on the full value under the head applicable for crushing and grading - the services of the sub-contractors were provided to the appellants and the appellants were eligible to take Cenvat credit of tax paid on it subject to the condition that the appellants pay tax on the full value of service including the amount accounted as reimbursement for transportation – decided against the assessee.
Classification of service rendered by the transport contractors whether it is Transportation of Goods or Cargo Handling Service – Held that:- When there is composite service the service should be classified as per provisions in section 65A of Finance Act, 1994 - it cannot be considered that transportation is for the purpose of loading and unloading but loading and unloading is for transportation. Any person dealing with the situation perceives the services as one for transportation and not for loading and unloading- against Revenue.
Revenue detected short payment of tax for incidental charges received by them for the years 2005-06 and 2006-07 (Rs. 317324) - Held that:- There is a statement by the Appellants in Appeal Memorandum about a payment of Rs. 10,08,225 on 02-06-06 on this count - the matter appears to be arising out of wrong reconciliation - remit the matter to the adjudicating authority to quantify dues if any on this account and pass an order which brings out the issue clearly.
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2012 (4) TMI 429
Eligibility to the appellant for service tax credit paid on Mobile Telephone services on the basis of invoices issued by Head Office as service tax distributor – Held that:- Since the credit was taken on the basis of invoices issued by Head Office, the details of Mobile Phone/phones in respect of which service tax was paid and in whose name the mobile phone is not have been shown or seen by the authorities- as assessee has no objection to produce the documents the matter is remanded to the original adjudicating authority for verification of documents relating to utilization of mobile phone and payment of service tax of such services.
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2012 (4) TMI 428
Application filed under Section 543(1) by Official Liquidator alleging misfeasance on the part of the Directors of the Company-in-liquidation – Held that:- If the question relating to hypothecation of properties belonging to the company in liquidation is to be considered in an appropriate proceedings and if it is not handed over, the same would not make the respondents liable for misfeasance since it is not shown that the respondents have appropriated the said properties to themselves so as to cause loss to the company in liquidation - no specific evidence to indicate the involvement of the respondents prejudicial to the company in liquidation with no other act attributed to them to arrive at a different conclusion -application rejected.
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