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Showing 81 to 100 of 685 Records
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2006 (2) TMI 646 - ITAT DELHI
Exemption u/s 10B - profits derived from 100 per cent Export Oriented Undertaking ("EOU") - activity of software development and processing of data - HELD THAT:- The business structure and continuity of the business activity has to be seen and not the continuity of the same ownership of the undertaking. Thus, there is a difference between the ownership of the undertaking and the business activity of the undertaking and if the latter remains unaffected or unchanged by subsequent change in the ownership then it cannot be said that the business of the undertaking has been reconstructed.
Thus, the undertaking acquired by the assessee-company remained the same and the observation of the Assessing Officer that undertaking acquired by the company is nothing but reconstruction of business already in existence cannot be accepted.
So far as the conversion of firm into company is concerned, again it cannot be said that there was any transfer. On incorporation of company, consequences as per the provisions of Companies Act and other statutory provisions follow ensue. Thus, there is merely statutory vesting.
In the case of the assessee, neither the period of five years nor the block period of eight years expired when the amendment replacing the word ‘ten’ for ‘five’ was introduced by Income-tax (Second Amendment) Act, 1998 with effect from 1-4-1999. Since the assessee was entitled to exemption in the year in which amendment became effective and operative, the assessee will be entitled to the extended period of exemption because the period of five years had not exhausted up to assessment year 1999-2000. Since the right of the assessee was continuing in the year of amendment and was not lost on the date when the amendment came into existence, the view taken by the learned CIT(A) cannot be upheld.
So far as the objections of the learned CIT(A) regarding conduct of the assessee-firm in not claiming the exemption in earlier year is concerned, the approach of the learned CIT(A) raising this objection, cannot be legally justified because if the assessee is entitled to any benefit under any statutory provision then the past conduct cannot be relevant particularly when reference to such conduct is not made in the Act. The eligibility of the assessee has to be seen in the year in which the claim is preferred and if in earlier years the assessee waived his right then he cannot be stopped in claiming the benefit in the subsequent years.
The learned CIT(A) has also observed that the assessee did not file declaration exercising option prior to the due date for filing of return but filed it along with the return and, therefore, the assessee is disqualified from claiming exemption on this ground also. We do not find any force in such objection because this objection is merely of super-technical nature. Thus, we are unable to concur with the finding of learned CIT(A) and set aside the same. Consequently, we allow the ground of appeal taken by the assessee and direct that the assessee shall be entitled to claim exemption u/s 10B in the assessment year under consideration.
Thus, we allow the claim of assessee for exemption u/s 10B of the Income-tax Act. Grounds stand allowed accordingly.
In the result, Appeal is allowed.
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2006 (2) TMI 645 - CESTAT MUMBAI
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... ... ..... ding 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.” I also find that the appellant has paid the tax amount in full and also the interest amount which is about 40 of the tax amount. As such, any pecuniary advantage gained by the appellant is neutralized by payment of interest. Moreover, the appellant’s case squarely falls under the provision of Section 80 of the Finance Act, 1994. The appellant being a small tax payer, the revised penalty imposed by the Commissioner is unduly harsh on him. Accordingly, I set aside the impugned order and restore the penalty amount under Section 76 of the Finance Act, 1994 to the originally determined amount of ₹ 4,000/- by the adjudicating authority. The appeal is allowed in the above terms. (Dictated in Court)
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2006 (2) TMI 644 - MADRAS HIGH COURT
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... ... ..... premises of the assessee and examined certain documents. Hence, we find no justification in rejecting the assessee’s claim for deduction under section 80-IA merely relying on the observation of the Central excise authorities. Further, it was a factual finding by the authorities below that the machinery installed in the premises and the raw materials utilised by the assessee, suggest that there was a production of article or thing for the purpose of using the same in the telecommunication industry. When the factual finding itself is that the assessee manufactured telephone cables joining kits, the assessee is entitled for the benefit available under section 80-IA of the Act. 7. In view of the foregoing conclusions, we find no error in the order of the Income-tax Appellate Tribunal and hence no substantial question of law arises for consideration of this court. Hence, the above tax cases are dismissed. No costs. Consequently, the connected TCMP No. 26 of 2006 is closed.
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2006 (2) TMI 643 - BOMBAY HIGH COURT
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... ... ..... e reasons set out therein this application is granted. Hence following order - (a) Applicant is enlarged on bail in the sum of ₹ 40,000/- with one/two sureties in the like amount. (b) Applicant shall attend NCB Zonal Office, New Delhi on every Monday till investigation in this case is over; (c) Applicant shall not leave India without prior permission of the Special Court. (d) Applicant shall deposit his Passport with the I.O. immediately after his release. (e) Applicant shall make himself available to Mumbai office of NCB for the purpose of investigation. After the order was pronounced, learned Counsel appearing for applicant submitted that since the applicant is resident of Mumbai, the direction that he should report to NCB, New Delhi be modified and it be directed that on his release on bail, applicant shall report to NCB, Mumbai. Accordingly, the direction in clause (b) is deleted. Applicant shall report to NCB, Mumbai on every Monday till the investigation is over.
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2006 (2) TMI 642 - CESTAT NEW DELHI
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... ... ..... on of polyester fibre." 7. It has been contended by the authorized representative of the Department that no final products could be distinguished as "main products" or "by-products" as no such distinction has been envisaged under the provisions of Rule 9(3) of CENVAT Credit Rules. 8. We have perused the records and heard both sides. We find that the Central Board of Excise and Customs vide their instructions issued on 31.08.2001 has already accommodated such a distinction of such final products as in the appellant's case. Further, relying upon the ratio adopted by this Tribunal in the case of Rama Industries Ltd., supra, we do not find anything strange in allowing the credit for those inputs consumed in the manufacture of the by-products in question, which are the "fall-outs" in the manufacture of the main duty-paying product, namely, 'refined edible oil'. In the result, the impugned order is set aside and the appeal is allowed.
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2006 (2) TMI 641 - MADRAS HIGH COURT
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... ... ..... ption to the General Rule is only in cases where the writ applied for is Writ of Habeas Corpus or Quo warranto or filed in public interest. Even assuming the members of the appellant's association is affected by an act of the second respondent, but for the purpose of enforcing the rights of the members, writ petition at the instance of the association is not maintainable. Ordinarily, the personal or individual right of the petitioner himself be enforced under Article 226 of the constitution of India. Merely because the first respondent/Reserve Bank of India has been arrayed as a party, the Court does not get jurisdiction to hear the writ petition since the main writ petition is against the second respondent, which is a private bank. 11. In view of the above discussion, we confirm the findings of the learned single Judge that the appellant herein has no locus standi to file the writ petition. Accordingly, the Writ Appeal is dismissed. No costs. Connected WAMPs are closed.
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2006 (2) TMI 640 - SUPREME COURT
Scope and ambit of Rule 11 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974 (in short the 'Ceiling Rules')
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2006 (2) TMI 639 - SUPREME COURT
Whether appellants detention under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas Immoral Traffic Offenders and Slum Grabbers and Video Pirates Act, 1982 valid?
Whether order of detention was justified, even though the appellant was in custody on the date of issuance of the order of detention?
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2006 (2) TMI 638 - SUPREME COURT
Whether appellant is not entitled to benefits flowing from Resolution No.9 dated 31.1.1986 of the respondent?
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2006 (2) TMI 637 - HIGH COURT OF ALLAHABAD
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... ... ..... ll pending consideration. Further, it appears that he has also filed an application for expeditious disposal of the appeal before the Tribunal and the said application is pending and now 3rd of March, 2006 is the date fixed for disposal of the application. It is expected that Tribunal shall pass an appropriate order on the said application. 3. Learned counsel for the petitioner has submitted that in the present case penalty notice under section 274 read with section 271 of the Income-tax Act was issued for the first time by the Commissioner, Income-tax (Appeals) and no penalty proceeding was issued by the Assessing Officer while framing the assessment. Looking to the facts and circumstances of the case we direct that, in the mean time, till the disposal of the appeal before the Tribunal, penalty proceedings may be finalized but the penalty order may not be served on the petitioner. 4. With the aforesaid direction writ petition is disposed of finally. 5. No order as to costs.
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2006 (2) TMI 636 - SUPREME COURT
Whether rightly held by the High Court, that the Appellant was not entitled to any relief in view of his conduct as he suppressed material facts?
Whether the Appellant had been coerced to apply for voluntary retirement?
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2006 (2) TMI 635 - SUPREME COURT
Whether in terms of the Central Civil Services (Conduct) Rules, 1964 the penalty imposed on the respondent was permissible in law?
Whether the penalty imposed by the President upon taking into consideration the report filed by the Enquiry Officer, was under clauses (iii) and (iii)(a) or clause (v) of Rule 11 of the CCS Rules?
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2006 (2) TMI 634 - SUPREME COURT
Whether Act 10 of 1998 seeking to amend provisions of Section 16 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 shall not apply to the writ petitioners and they would continue to have the "infancy protection" for the period of 3 years starting from the date of establishment of the industry?
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2006 (2) TMI 633 - CESTAT NEW DELHI
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... ... ..... ldquo;It is not in dispute that no service tax was leviable during the period in question. Therefore, whatever payment was made did not relate to service tax at all. It was merely an erroneous collection by DOT and payment by the appellants. Therefore, provisions relating to refund of service tax, including those relating to unjust enrichment, cannot have any application to the return of the amount in question.” The learned Commissioner (Appeals) has also correctly relied upon the Hexacom (I) Ltd (supra) case and come to conclusion that the respondents are eligible for refund. The case laws relied upon by the learned DR, discuss about the refund claim of the amount of paid as duty and do not address to the issue of amount not payable as Tax. Hence they are not relevant for the issue in this case. 6. Under the circumstances, I do not see any reason to interfere with the order-in-appeal dated 24-5-2004. The departments appeal is dismissed. (Pronounced in open Court)
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2006 (2) TMI 632 - GUJARAT HIGH COURT
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... ... ..... rder-in-Appeal itself is required to be set aside on the ground of breach of principles of natural justice, and the matter is required to be restored to file of the Commissioner (Appeals) for deciding the same afresh after affording the petitioners an adequate opportunity of hearing. 12. In the circumstances, the impugned Order-in-Appeal No. YPP/229/SRT/2003, dated 13th February, 2003 is hereby quashed and set aside. Appeal F.No. V-2 (54) 169/SRT-I/DIV-II/2002 is restored to the file of the Commissioner (Appeals). The Commissioner (Appeals) shall give an opportunity of hearing to the petitioners and pass a fresh order thereon. 13. In the aforesaid facts and circumstances, the impugned order Nos. M/238/WZB/2005/C-III, S/351/WZB/2005/C-III, A/523/WZB/2005/C-III, dated 27-4-2005 of the Tribunal will not survive. Hence, the same is also quashed and set aside. 14. In the result, the petition is allowed. Rule is made absolute, accordingly, with no order as to costs.
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2006 (2) TMI 631 - SUPREME COURT
Whether the scheme of subsidies (known as the "Retention Price Scheme") granted by the Respondent-Union of India (hereinafter "the Government") to fertilizer manufacturers, could be retrospectively modified to the detriment of these manufacturers?
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2006 (2) TMI 630 - SUPREME COURT
Whether the direction of the learned Single Judge, as confirmed by the Division Bench, to consider the cases of respondents under the Circular dated 1.9.1988 cannot be sustained?
Whether the petitioners in the writ petition were entitled to the relief of regularization/absorption and without fixing any time frame for deciding the matter?
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2006 (2) TMI 629 - BOMBAY OF HIGH COURT
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... ... ..... dmittedly, the same has now been complied with. 3. The Regional Director has stated in his affidavit that the scheme is not prejudicial to the interest of the Creditors and the Shareholders. 4. In the circumstances, the Petition is made absolute in terms of prayer clause (a). 5. Costs of the Regional Director is fixed at ₹ 2,500/-. 6. Filing and issuance of drawn up order is dispensed with. 7. All concerned to act on an ordinary copy of this order duly authenticated by the Company Registrar.
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2006 (2) TMI 628 - CESTAT NEW DELHI
Penalty - Service tax escaped assessment - coal handling services come under the purview of service tax? - HELD THAT:- It is not in dispute that the appellants have discharged their service tax liability and the interest leviable thereon before the issuance of show cause notice. Appellants have ascertained the service tax liability on their own and paid it off which is admitted by the department in Order-in-Original.
Further, the provisions also state that even the service tax is ascertained by the Central Excise officers and if it is paid of by the assessee in that case also the appellants should not be served upon any notice under sub-section (1). Considering both the situations, the appellants case is covered under the provisions of sub-section (2A) of Section 73 for non-issuance of show cause notice to the appellants. When the provisions themselves do not contemplate issuance of show cause notice when tax liability is discharged to my mind, the issuance of show cause notice in this case by the department is beyond the provisions of the Act.
In view of the above Order-in-Appeal deserves to be set aside. I set aside the Order-in-Appeal and allow the appeal of the appellants with consequential relief, if any. Appeal allowed.
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2006 (2) TMI 627 - CESTAT MUMBAI
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... ... ..... 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." I also find that the appellant has paid the tax amount in full and also the interest amount which is about 30% of the tax amount. As such, any pecuniary advantage gained by the appellant is neutralised by payment of interest. The appellant’s case squarely falls under the provision of section 80 of the Finance Act, 1994. The appellant being a small taxpayer, the revised penalty imposed by the Commissioner is unduly harsh on him. Accordingly, I set aside the impugned order and restore the penalty amount under section 76 of the Finance Act, 1994 to the originally determined amount of ₹ 4,000 by the adjudicating authority. The appeal is allowed in the above terms.
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