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Showing 61 to 80 of 655 Records
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2005 (7) TMI 672 - CESTAT MUMBAI
Pre-deposit - repairing activity - failed to pay service tax - Penalty - HELD THAT:- The activity of repairing by the appellants, in our prima facie view is not covered by a service rendered by the Port or any person authorised by the Board to do so, inasmuch as the provisions of section 42(e) cannot be extended and stretched so as to cover the repairing activity. We also find favour in the ld. Advocate’s arguments that sub-section (4) of Section 42 provides for authorisation by the Board for the various services, at the rate specified by a notification in the official gazette. This reflects upon the fact that the various services, which can be authorised by the Board by any person are routine service for which various rates can be fixed.
As far as repairing of the vessel, chipping and painting is concerned, the charges would definitely depend upon the extent of work required to be done. Such consideration, we have been told, depends upon the contract arrived at after negotiations. As such, prima facie, we are of the view that the services of repairing of the vessels are not Port Services and not liable to service tax during the relevant period. We, accordingly, allow the stay petition unconditionally and fix the main appeal itself on 5 August 2005.
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2005 (7) TMI 671 - KARNATAKA HIGH COURT
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... ... ..... s a delay of 210 days in filing the appeal before the Tribunal and even though an application had been filed seeking condonation of the delay, the said application was dismissed holding that the appellant was negligent and had not shown sufficient cause for condoning the delay. All the Departmental orders came to be challenged in the writ petition which too, met with the same fate and was dismissed by the learned single Judge. Hence the present writ appeal. 2. We have heard learned counsel for the appellant and find that there is no error apparent on the face of the record warranting interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution. Even otherwise, no fault can be found with the orders passed by the Departmental Officers, because, the appellant had not produced the end-use certificate evidencing utilisation of the imported goods as undertaken by it. There is, thus, no merit in the writ appeal and the same stands dismissed.
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2005 (7) TMI 670 - SC ORDER
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... ... ..... We see no reason to interfere. The Civil Appeal is dismissed.
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2005 (7) TMI 669 - CESTAT CHENNAI
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... ... ..... horities have imposed penalty exceeding the maximum limit. Their only case is that the delay in payment of Service Tax and in filing the returns was on account of the fact that they were not aware of the penal consequences. In other words, the only reason for the defaults is ignorance of law, which cannot be accepted as a “reasonable cause” within the meaning of this expression used under Section 80 ibid, which reads as under “Penalty not to be imposed in certain cases. - Notwithstanding anything contained in the provisions of section 76, section 77, section 78 or section 79, no penalty shall be imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure.” Appellants are not eligible for the benefit of Section 80. Consequently, the penalties imposed on them under Sections 76 and 77 get sustained. The appeal is dismissed. (Dictated and pronounced in open Court)
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2005 (7) TMI 668 - ITAT LUCKNOW
Denial of application filled for registration u/s 12AA - charitable institution - object of executing housing and improvement schemes - activities of the authority are not charitable in nature within the meaning of section 2(15) of the Act - HELD THAT:- From the perusal of the objects of the Parishad, we find that the objects of the Parishad were to frame and execute the housing and improvement schemes and other projects: to plan and coordinate various housing activities in the State and to ensure expeditious and efficient implementation of housing and improvement schemes in the State. As regards the other Authorities before us. We have perused the UPUPD Act, 1973. Section 4 of the said Act provides that State Government may by notification in the Gazette constitute for the purposes of this Act, an Authority to be called the Development Authority for any development area. The Authorities before us have been constituted by the Government under this section. Section 7 of the said Act has also provided for the objects of these Authorities as mentioned.
Needless to say that as per clause 4 of Land Acquisition Act. the land could be acquired only for public purposes. Section 57 of the said Act also provides that Authorities could make its bye-laws with the approval of the State Government. Section 58 provides that in case of dissolution of the Authority, all the properties, funds and dues which are vested in or realizable by the Authority, shall vest in or to be realizable by the State Government. Various sections of the said Act make it abundantly clear that the activities of the Authorities were aimed at public purposes and not personal one. We, therefore, have no hesitation in holding that the activities of the assessees before us are for enhancement of general public utility and the ld. CIT was not justified in relating registration u/s 12AA of the Act.
From the perusal of various documents on record, there is no dispute that the activities of the assessees before us were genuine and object of the assessees was in consonance with its creation. Even on these two grounds, the ld. CIT was not justified in refusing registration u/s 12A of the Act. The ld. CIT could not take shelter of any other outer source for refusing registration u/s 12A of the Act.
In the present appeals. CIT has not brought any material nor recorded any finding to hold that activities of assessees were not genuine. In our opinion, it is not easy, in case of statutory body, like, market board or market committee controlled by Governments to hold, that activities of such bodies are not genuine. We are, therefore, unable to agree that these cases were not fit cases for recording satisfaction as required u/s 12AA of the by Income-tax Act. About object of the institutions, we have already held that those are genuine and are of charitable nature.
Some other objections have been raised by the Revenue in the impugned orders and during the course of arguments before us like the committees and boards being managed by public servants, collection of fines by committees, no voluntary contribution by outsiders etc. We do not find any substance in these objections. At the stage of registration, the learned Commissioner has only to record his satisfaction about the genuineness of activities of the institution and its charitable purposes. The above conditions are not shown to be not satisfied in these cases. We, therefore, do not see any hurdle in their claim relating to Registration u/s 12AA.
Thus, we are of the view that the assessees are entitled to registration under section 12AA of the Act. We therefore, direct, the ld. CIT to register all the authorities in appeal before us u/s 12AA of the Act.
In the result, all the appeals directed by the assessees are allowed.
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2005 (7) TMI 667 - ITAT BANGALORE
Exemption u/s 10A - eligibility of "Eagle Software" - HELD THAT:- In the cross-objection, the assessee desires that the amount received from sale of "Eagle Software" be charged under the head 'Capital gains' and not as revenue receipts. CIT(A) while holding that the amount is eligible for exemption u/s 10A, held as under:
'' We find that "Eagle Software" was designed and developed by the assessee during the course of its business in development of software. Thus, it cannot be said that assessee acquires certain capital asset. Design and development of software are part of a business activity of assessee company and hence, any amount realized on sale of such product is to be treated as trading receipt only. From the records, we find that the assessee has furnished all necessary details to show that the sale was affected through the eligible STP unit. The sale of STP unit started after 1st Sept., 1994. Thus, profit from sale of such software is eligible for deduction under s. 10A of the Act. The profit arises not at the time of manufacture but at the time when it is ultimately sold. Since the product was sold through the STP unit, the same is eligible for deduction as profit of eligible STP unit as provided u/s. 10A of the Act. We accordingly do not find any reason to arrive at a view other than that arrived by learned CIT(A).''
In the result, the appeal of assessee is partly allowed. The appeal of Revenue and the cross-objection by assessee are dismissed.
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2005 (7) TMI 666 - BOMBAY HIGH COURT
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... ... ..... ed false QFormat true Name Book Title / w LsdException Locked false Priority 37 Name Bibliography / w LsdException Locked false Priority 39 QFormat true Name TOC Heading / /w LatentStyles /xml endif -- -- if gte mso 10 endif -- R. S. RADHAKRISHNAN & J.H. BHATIA, JJ. Dr. P. Daniel with Mr. G. Hariharan for the Appellant JUDGEMENT 1. Heard the learned counsel for the Appellant. The substantial question of law sought to be raised, reads as under - "Whether on the facts and in the circumstances of the case the Tribunal was justified in law in deleting the penalty levied u/s. 271(1)(c) because the finally assessed income is loss?" 2. The learned counsel for the Appellant Dr. Daniel fairly states that the above question has already been answered by the Supreme Court in Commissioner of Income Tax Vs. Prithipal Singh and Co. 249 ITR 670. In view thereof, the question is answered against the Revenue and in favour of the Respondent. Appeal stands disposed of accordingly.
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2005 (7) TMI 665 - SUPREME COURT
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... ... ..... ecision of this Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others (supra). The High Court has also erred in awarding compensation in Civil Appeal No............. of 2005 SLP(C) No.9788 of 1998 . The subsequent suit or writ petition would not be maintainable in view of the dismissal of the suit. The writ petition was filed after a lapse of 10 years. No reasons have been given for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In such a case, awarding of compensation in exercise of its jurisdiction under Article 226 cannot be justified. As the High Court had exercised its power under Article 226 of the Constitution without properly appreciating the nature of its jurisdiction, the impugned judgments deserve to be set aside. However, in view of the long lapse of time the appellants will not recover the amounts already paid to the respondents. The civil appeals are disposed of accordingly. No costs.
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2005 (7) TMI 664 - CESTAT NEW DELHI
Wrongly declared the value of the goods - liability of confiscation of the imported waste oil - barrels of 44 gallons each - advance licences - evasion of duty - DEEC Scheme for duty free imports - time-barred demand - Penalty - violation of instructions of the RBI Manual - Notification No. 204/92 - misstatement and suppression of facts in the invoices - HELD THAT-: After taking into account of exports, we find that still the appellants were not able to fulfil the export obligation for each of the advance licences. The figures of short fall worked out in annexure T3 to T7 to show cause notice were accepted by the appellants during hearing of appeals. Therefore, Shri J.M. Sharma counsel for the appellants stated that they are liable to pay duty of ₹ 4,40,539/- for import of the waste oil at Jaipur for which the export obligation was not fulfilled on adopting unit of British gallon. He also accepted that on adoption of British gallon, the appellants were not able to fulfil the export obligation for imports at Mumbai and they are liable to pay duty of ₹ 3,95,761/-. Thus, the appellants are liable to pay customs duty of ₹ 4,40,539/- at Jaipur and ₹ 3,95,761/- at Mumbai, in respect of imports made against advance licences no. 2277827 dated 5-11-92 and 1535022 to 1535025 all dated 26-2-93.
There was a clear misstatement and suppression of facts in the invoices. They had given false declaration of quantity in para (e) of declaration submitted along with the shipping bills for use of waste oil in manufacture of refined lube oil exported. They have made false declaration in shipping bill before the customs that entire quantity of raw material has been utilized for meeting export obligation under the relevant licences. This attempt on the part of the appellant is with intention to defraud the Revenue by misstating the facts and by suppressing the real facts from the department. Therefore, we are convinced that extended period for demanding duty was applicable. We find that none of the demand is beyond the period of 5 years and this position was conceded by Shri J.M. Sharma, the learned counsel for appellants.
liability of confiscation of the imported waste oil - The Commissioner of Customs, Mumbai has given finding that he is not confiscating the oil imported through Mumbai Port, as it is not available for confiscation, we are not interfering with this findings as it is not challenged before us. We find that the Commissioner of Customs, Jaipur has given finding that the imported goods (waste oil) valued at ₹ 11,23,891/- are liable for confiscation under Sections 111(o) and 113(d) of the Customs Act corresponding to show cause notice dated 23-7-98 and he ordered these goods to be redeemed on the redemption fine of ₹ 3,00,000/-. We find that that the appellants have not been able to export the refined lubricating oil manufactured out of imported waste oil corresponding to the quantity of 12490 gallon in respect of licence no. 1535024 (Annexure T-6 of show cause notice) and 40957 gallon in respect of licence no. 1535025 (annexure T-7 of show cause notice), the value of these two quantities which were imported but corresponding export was not made works out to (Rs. 1,35,915/- plus ₹ 4,45,553/-) ₹ 5,83,468/-. Therefore, the redemption fine imposed by the Commissioner, Jaipur amounting to ₹ 3,00,000/- is reduced to ₹ 1,50,000/-.
We find that charge of violation of condition no. (v) of Notification No. 204/92 dated 19-5-92 is established against M/s. Vibhuti Exports, as discussed above. We also find that they have imported waste oil and had not exported the goods to the full extent as discussed above and thus made the imported goods liable for confiscation as they have not met the export obligation. Therefore, M/s. Vibhuti Exports are liable for penalty under Section 112(a) of the Customs Act.
For non-recovery of the value of the goods exported during the extended period allowed by the DGFT, any action for violation law relating to non-recovery of Foreign Exchange or for violation of instructions of the RBI Manual, the competent authorities under the respective law has to take action. The customs authority has no role in deciding this issue. Therefore, on this account, no penalty can be imposed. Penalty imposed under Section 114 of the Customs Act by Commissioner of Customs, Jaipur is set aside as no final order passed by any competent authority regarding the violation of the Foreign Exchange or RBI Manual was referred to by the Commissioner which would have rendered the goods liable for confiscation for violating of condition (vii) of Notification 204/92.
Regarding penalty of ₹ 6,00,000/- imposed by the Commissioner of Customs, Jaipur, we find that it is imposed for the evasion of duty on imported waste oil used in exported goods during the extended period allowed by the licensing authority for meeting the export obligation. These goods have been taken as used in export production. Therefore, the imported waste oil used in refined lube oil exported during the extended period has to be considered as duly used for fulfilment of export obligation. Such exports are also entered in the DEEC Book. Therefore, this penalty can not sustain.
In view of above, we modify the order of the Commissioner of Customs, Jaipur and orders of the Commissioner of Customs, Mumbai in the following manner :- (1) Order of the Commissioner of Customs, Jaipur (C/681 and 682/02) :-
(i) The demand of ₹ 16,40,941/- is reduced to ₹ 4,40,539/-.
(ii) Penalty of ₹ 12,00,000/- imposed on M/s. Vibhuti Exports under Section 114 of the Customs Act, is set aside.
(iii) Redemption fine is reduced from ₹ 3,00,000/- to ₹ 1,50,000/-.
(iv) Penalty of ₹ 8,00,000/- imposed on Shri Gulab Chand Jagetia is reduced to ₹ 2,00,000/-.
Rest of the order is upheld - Order passed by the Commissioner of Customs, Mumbai is set aside.
All the eight appeals are disposed of in the above manner.
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2005 (7) TMI 663 - DELHI HIGH COURT
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... ... ..... of section 10A of the Act. In case the exemption under section 10A cannot be allowed for the reasons of not satisfying the requisites, the claim of deduction under section 80HHE shall be allowed after providing opportunity to meet the requisites." 2. The above direction is, in our view, just and proper hence does not call for any interference especially when the question (whether the assessee) satisfies the pre-requisites stipulated for the purpose of getting benefit under section 10A is a matter left to be determined by the assessing officer. So also the entitlement of the assessee to seek deduction under section 80HHE having been left to be determined by the assessing officer, subject to assessees satisfying the pre-requisites stipulated for the grant of such a benefit under the said provision. No question of law much less a substantial question of law arises for our consideration in this appeal to warrant its admission. The appeal is accordingly dismissed in limine.
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2005 (7) TMI 662 - SC ORDER
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... ... ..... JJ. ORDER Appeal dismissed.
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2005 (7) TMI 661 - DELHI HIGH COURT
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... ... ..... laimed by the assessee. The Tribunal has, in our view, rightly held that since the expenditure was meant for updating and relationalizing the data processing system of the assessee-company, the same could not be anything but revenue in nature. No substantial question of law arises for consideration. Dismissed.
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2005 (7) TMI 660 - SUPREME COURT
Whether Section 498A of Indian Penal Code, 1860 (in short `the IPC') is unconstitutional and ultra vires in the alternative to formulate guidelines so that innocent persons are victimized by unscrupulous persons making false accusations?
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2005 (7) TMI 659 - SUPREME COURT
When the existence of an agency relationship would help to decide an individual problem, and the facts permits a court to conclude that such a relationship existed at a material time, then whether or not any express or implied consent to the creation of an agency may have been given by one party to another, the court is entitled to conclude that such relationship was in existence at the time, and for the purpose in question
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2005 (7) TMI 658 - DELHI HIGH COURT
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... ... ..... ion, so far as directions required to be issued by the Special Court relating to the disposal of attached property, are concerned." 44. Learned counsel appearing for the Provident Fund Authorities submitted that in view of the aforesaid decision when a special statute has provided special period of limitation as also a specified period, as extended period, it must receive a liberal an broader construction and not a rigid and a narrow one. It was submitted at the cost of repetition that the legislation being for the benefit of a working class to avoid delay at the instance of employer, the Legislature has permitted restriction in tie for preferring an appeal by prescribing separate period of limitation, which includes condensation of delay. In our opinion, it requires no interference. 45. The petition preferred by the employer is dismissed, the petition filed by the Assistant Regional Provident Fund Commissioner is allowed and the order passed by the Tribunal is quashed.
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2005 (7) TMI 657 - CESTAT BANGALORE
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... ... ..... s have given no reason and finding for imposing penalties under these sections. The explanation for delayed payment ought to have been considered and appellant should have been exonerated by warning or levied with a nominal penalty. 2. Learned SDR submits that ignorance of law is no excuse and appellants ought to have complied with the provisions of Finance Act in paying the service tax. He submits that penalty is leviable. 3. On a careful consideration, we notice that there is no reason given by both the authorities for imposing such a heavy penalty. The reason and explanation given by the appellants has also not been considered. This is the first time the appellant has committed the offence, as the appellant was new to the field. Therefore, the nominal penalty in this case would meet the ends of justice. The appellants should deposit penalty of ₹ 1,000 each under sections 76, 77 and 78. The impugned order is modified to that extent and appeal disposed of accordingly.
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2005 (7) TMI 656 - SC ORDER
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... ... ..... thdrawal of the present petition. The Special Leave Petition is accordingly dismissed as withdrawn.
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2005 (7) TMI 655 - DELHI HIGH COURT
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... ... ..... asers have any grievance against the calculation of the said duties, it would be open for them to agitate this in appropriate proceedings. I will also note, in this connection, the contention of Mr. Sinha, learned counsel appearing for the auction purchaser, that in so far as the machinery, sold to M/s. Balaji Steels which was lying at 58D is concerned, no customs duty is leviable as it was not imported one. It would be open for the auction purchaser to raise this issue with the Development Commissioner and it is expected that the Development Commissioner shall examine this issue and pass appropriate orders. These applications are disposed of. Since both the auction purchasers are present in the Court and submit that they shall appear before the Development Commissioner on 2nd August 2005 at 12 Noon for this purpose. Mr. Duggal has agreed to the same and states that he shall convey the order to the Development Commissioner. Copy of the order be supplied to the parties dasti.
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2005 (7) TMI 654 - SUPREME COURT
Whether certain provisions of the Illegal Migrants (Determination by Tribunals) Act, (Act No.39 of 1983) 1983 are ultra vires the Constitution of India, null and void and consequent declaration that the Foreigners Act, 1946 and the Rules made thereunder shall apply to the State of Assam?
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2005 (7) TMI 653 - KERALA HIGH COURT
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... ... ..... e suit. State which has got a statutory first charge under Section 26B of the K.G.S.T. Act would prevail over the rights created in favour of the Bank by an unexecuted decree. We therefore hold that the decree obtained by the Bank will not have any precedence over the first charge created in favour of the State under Section 26B of the K.G.S.T. Act. 9. Counsel appearing for the Bank submitted that Section 26B has employed a nonobstante clause, which does not exclude a decree or order of the court and therefore decree obtained by the bank is still enforceable dehors Section 26B of the K.G.S.T. Act. Since State is not a party to any decree the contention has no force. Even otherwise in our view by virtue of operation of law State will have prior charge over the properties in question. Above being the legal position we find no infirmity in the proceedings initiated by the Tahsildar for recovery of the tax due to the State. Appeal lacks merits and the same would stand dismissed.
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