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Showing 61 to 80 of 582 Records
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2006 (9) TMI 563 - CESTAT, BANGALORE
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... ... ..... 4-2006 STT 438 (Delhi - CESTAT). The learned Counsel submits that the decision rendered in the case of Daelim Industrial Co. Ltd. (supra) has been affirmed by the Apex Court as reported in 2004 (170) ELT A181. He prays for allowing the appeal in terms of the above cited judgments. 3. The learned JCDR submits that matter can be listed for out of turn hearing meanwhile he will call for report from the Commissioner with regard to the facts of the present case and vis-a-vis the citations relied upon by the learned Counsel for the appellant. 4. On a careful consideration, prima facie the judgments cited are in assessee's favour. The appeal is required to be allowed, as the issue is decided in their favour. Therefore, the stay application is allowed unconditionally granting full waiver of pre-deposit and staying its recovery till the disposal of the appeal. The prayer of JCDR for listing the appeal out of turn is accepted and appeal to come up for hearing on 9th October, 2006.
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2006 (9) TMI 562 - CESTAT BANGALORE
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... ... ..... ore, the fact of the appellant receiving the proprietary item namely biscuits cutters, moulders, etc. were definitely within the knowledge of the Department even during the year 1996. In that case, we cannot say that the appellants failed to inform the Department regarding the receipt of the proprietary items. The lower authorities have not examined the agreement between the appellant and BIL. Hence, It is not correct to say that the appellants deliberately withheld or suppressed information with an intent to evade payment of duty. It is also on record that RT 12 Returns were regularly filed and the assessment had been completed and provisional assessments were finalized. In such circumstances, the Show Cause Notice dated 22.12.2000 appears to be hopelessly time barred. Therefore we do not find any merit in the impugned order. Hence, the appeal is allowed with consequential relief. Operative portion of the order has been pronounced in the open Court on completion of hearing.
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2006 (9) TMI 561 - DELHI HIGH COURT
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... ... ..... e clear that assessee does not give any loan or advance to its customers and has not earned any interest on any such alleged loan or advance. The vehicles are directly purchased by the assessee in its own name from the manufacturer and the customer is not a party to that transaction. It is only thereafter that the assessee, under an agreement hires out the vehicle to the customer for a charge under a hire-purchase agreement. The finding of the Commissioner of Income-tax (Appeals) as well as the Tribunal is that the transaction is really in the nature of hire-purchase agreement and is not in the nature of a financing agreement particularly since the vehicle is not owned by the customers and the assessee is entitled to repossess the vehicle in default of payment. 7. We do not find any mistake in the view taken both by the CIT(A) as well as by the Tribunal. Therefore, we are of the opinion that no substantial question of law arises in this case for our consideration. Dismissed.
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2006 (9) TMI 560 - GUJARAT HIGH COURT
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... ... ..... to the extent sustained by us, amounting to ₹ 18.61 lacs (5.90 12.71), while computing income under the head “profit & gains of business and profession” for the Assessment Year 1992-93, bearing the year of sale of building.” o p /o p There is no dispute on the facts that business of the assessee is construction of buildings and then selling them. Even assuming that some expenditure or investment has not been shown in the books of account and some extra expenditure has been incurred during construction of the buildings, that will be added in the cost of the buildings. If any addition is made on account of unexplained investment in the construction, the expenditure to that extent has to be allowed as deduction of expenditure on the construction. Therefore, net result will remain the same. o p /o p We, therefore, see no infirmity in the order of the Tribunal. No interference is called for. The appeal stands dismissed at the admission stage. o p /o p
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2006 (9) TMI 559 - CESTAT NEW DELHI
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... ... ..... pellants at this stage, submits that the financial position of the appellant is very weak and they may not be required to deposit any amount. The only statement on the aspect of financial position in the application is that they are facing financial hardship. The appellants have been operating several cabs and it is not possible to accept the plea of financial hardship on such a bald assertion. 7. Having regard to the facts and circumstances of the case, we therefore, direct that there will be interim stay of the penalty amounts payable under the impugned orders on the condition that the respective appellant deposits within eight weeks the entire amount of service tax payable under the impugned order passed against such appellant, failing which the appeal of the defaulting appellant shall stand dismissed. Post the matters for compliance on 15 November, 2006. All these applications are disposed of accordingly. (Order dictated and pronounced in the open Court on 6-9-2006)
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2006 (9) TMI 558 - CESTAT MUMBAI
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... ... ..... ts and the Ld. DR for the revenue, I find that the appellants have undisputedly paid the amount in question along with interest amount. They have also got themselves registered with the authorities. Tribunal in the case of CCE, Bhopal v. Bharat Security Services & Worker’s Contractor vide its order No. A/1087-1092/2005-IV (PB) 2006 (3) S.T.R. 703 (Tribunal) 2005 (188) E.L.T. 454 (T) has held that where Service tax provider has registered himself and paid Service Tax along with interest prior to 30-10-2004, he is not liable to any penalty under the Extra Ordinary Tax Payer Friendly Scheme. Inasmuch as the appellants have admittedly paid the tax made and have themselves got registered prior to 31-10-2004, I find no justification for enhancement of penalty imposed upon them. Accordingly, the impugned order is set aside, Order-in-Original is restored and appeal allowed with consequential relief to the appellants. Stay petition also gets disposed of. (Dictated in Court)
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2006 (9) TMI 557 - SUPREME COURT
Seeking direction to the Board to absorb the services of the employees of the Society in equivalent posts with continuity of service and also pay their arrears of salaries, allowances and other dues - Co-operative society under liquidation - absorb the services of the employees of the Society - legitimate expectation - HELD THAT:- The Board had never agreed nor decided to take services of any of the employees of the Society. In fact, it is not even the case of the appellants that the Board had at any point of time held out any promise or assurance to absorb their services. When the licence of the Society was revoked, the State Government appointed a Committee to examine the question whether the Board can take over the services of the employees of the Society. The Committee no doubt recommended that the services of eligible and qualified employees should be taken over. But thereafter the State Government considered the recommendation and rejected the same, apparently due to the precarious condition of the Board which itself was in dire financial straits, and was contemplating retrenchment of its own employees.
At all events, any decision by the State Government either to recommend or direct the absorption of the Society's employees was not binding on the Board, as it was a matter where it could independently take a decision. It is also not in dispute that for more than two decades or more, before 1995, the Board had not taken over the employees of any private licencee. There was no occasion for consideration of such a course. Hence, it cannot be said that there was any regularity or predictability or certainty in action which can lead to a legitimate expectation.
We may in this behalf refer to the decision of this Court in Bhola Nath Mukherjee v. Government of West Bengal [1996 (11) TMI 488 - SUPREME COURT] relating to transfer of a licensee's undertaking to a State Electricity Board, as a consequence of revocation of the licence. In that case the Board initially allowed the employees of the erstwhile licensee to continue in its service but subsequently introduced terms which rendered them fresh appointees from the date of take over of the undertaking. The question that arose for consideration was whether the employees were entitled to compensation u/s 25FF of the Act; and whether the liability for payment of such compensation u/s 25FF of the Act was on the transferor or the Board. This Court held that employees had no right to claim any retrenchment compensation from the Board, nor did they have any right to claim to be in continuous employment on the same terms and conditions, after the purchase of the undertaking by the Board. The said decision clearly recognises that the Board has no obligation towards the employees of the previous owner of the undertaking.
We therefore find no reason to interfere with the order of the High Court. The appeal is dismissed.
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2006 (9) TMI 556 - SUPREME COURT
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... ... ..... 43 of 2000 filed by respondent is clearly impermissible. Therefore, the disposal of the Civil Petition 943 of 2000 filed by respondent is clearly impermissible. What was challenged in Writ Petition 16246 of 2004 to which this appeal relates related to the powers of disposal of cases by the Lok Adalat. In view of findings recorded that matter could not have been disposed of by the Lok Adalat, High Court ought to have directed restoration of writ petition filed by respondent i.e. Civil Writ Petition No. 943 of 2000 for disposal in accordance with law. The inevitable result is that appeal has to be allowed. The impugned judgment is set aside. It cannot be lost sight of that the matter is pending for long. Let Civil Writ Petition 943 of 2000 be restored to its original position. The High Court is requested to dispose of the writ petition within a period of three months from the date of receipt of this order. The appeal is allowed in the aforesaid terms with no order as to costs.
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2006 (9) TMI 555 - GUJARAT HIGH COURT
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... ... ..... ssee to believe that it was entitled the deduction u/s.80HH of the Act. Anyhow, in the totality of the facts and circumstances of the case, we are of the opinion that the CIT(Appeals) was justified in cancelling the penalty in question. Consequently, the common order of the CIT(Appeals) is confirmed.” The CIT(A) as well as the Tribunal both found that there was a bonafide mistake on the part of the assessee, therefore, the assessee wrongly claimed deduction under Section 80HH. Even otherwise, it cannot be said that the assessee has claimed deduction concealing the material facts and has deliberately furnished wrong particulars of income. When all the material particulars were disclosed by the assessee before the Assessment Officer, he could have rejected the claim of the assessee, but it cannot be said that the assessee has concealed any material facts for the claim. No interference is called in the order of the Tribunal. The appeals stand dismissed at admission stage.
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2006 (9) TMI 554 - SUPREME COURT
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... ... ..... Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter. We agree with the appellant. Having regard to the fact that the term of the contract has run out while dismissing the writ petition, we direct that in case any dispute arises in future concerning the said contract, and a court is called upon to adjudicate the matter, it shall while recording its findings and decision act on the basis of evidence adduced before it, uninfluenced by any observation made by the High Court in the impugned judgment. The interim order stands dissolved. We observe that any claim relating to the period during which the interim order was in force, may also be decided by a court of competent jurisdiction in accordance with law, if required to do so, in any dispute in future between the parties relating to the subject matter of this petition. This appeal is accordingly allowed. No order as to the costs.
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2006 (9) TMI 553 - SUPREME COURT
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... ... ..... was not eligible to hold the post. Furthermore, we do not have sufficient materials to hold as to on what basis, the Archaeological Survey of India opined differently in the cases of persons named in Ground 'G' of the writ petition of the First Respondent. We may, however, notice that the same has been explained. Mr. Viswanathan submitted that no explanation has been offered in respect of Dr. Ramesh. We refrain ourselves from going into the said question, simply on the proposition that Article 14 of the Constitution of India carries with it a positive concept and the equality clause contained therein cannot be said to have any application in a case of illegality. For the views we have taken, we are of the opinion that it is not necessary for us to advert to the other contentions raised by the learned counsel. For the reasons aforementioned, the impugned judgment of the High Court cannot be sustained, which is set aside accordingly. The appeals are allowed. No costs.
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2006 (9) TMI 552 - SUPREME COURT
Challenged the Order of High Court in exercising its power of judicial review and setting aside the election - election of the Appellant as President of Anand Municipality - two candidates having got equal number of votes in their favour - In view of equality of votes, following the procedure laid down in Section 32 (4) of the Gujarat Municipalities Act, 1963 - drew lots - Respondent No. 1, declared as the elected President of the said Municipality - two councillors detained with the sole intention of preventing them from attending the meeting convened for election of President and Vice-President of the Municipality - Court directed that the votes of the said councillors be treated as having been cast in favour of the first Respondent and has consequently declared him as having been elected as President of Anand Municipality - HELD THAT:- The principle of "Wednesbury unreasonableness" or irrationality, classified by Lord Diplock as one of the grounds' for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Greene Ltd. Vs. Wednesbury Corpn.
It is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society.
Thus, we are of the view that on facts in hand the High Court was fully justified in exercising its power of judicial review and set aside the election of the appellant.
Whether the detention of the two councillors was such a trivial factor in the subject election, which could be overlooked by the Presiding Officer? - It is manifestly clear from the material on record that he was made aware of the said development. In the light of some of the circumstances, viz., (i) after arresting councillors Anilbhai Patel and Meenaben Gohil at around 12.30 P.M., just half an hour before the scheduled time for elections, the police officers did not produce them before the Magistrate immediately, but took them around Anand town in the police van and produced them before the Magistrate only at about 5.00 P.M., by which time the elections were already held and the results were also declared; (ii) no circumstance brought on record by the police to show that it would have been inexpedient to wait till the elections were over before effecting arrest of Anilbhai Patel and Meenaben Gohil. Both the councillors are residents of Anand and their co-accused in the respective offences were released by the police officers themselves after arresting them on 5.11.2005; and (iii) there was no circumstance to show that the two councillors would have escaped and avoided arrest if they were allowed to go inside the meeting hall for voting at 1.00 P.M. and if they were not arrested till the meeting for electing President and Vice-President was over. We have no hesitation in holding that the detention of the two councillors, a few minutes before the election meeting was a relevant factor which ought to have been taken into account by the Presiding Officer to decide whether to continue with the election or to postpone it and call the meeting on some other day in terms of Rule
Failure to do so not only offends against procedural propriety, it makes his decision to go ahead with the election meeting perverse and irrational, a facet of unreasonableness, warranting interference under Article 226 of the Constitution. Thus, we are of the opinion that the High Court has not committed any error of law and/or jurisdiction in setting aside the election of the appellant as President of the Anand Municipality.
Since we feel that the principle Res ipsa Loquitur is squarely attracted on facts in hand, it is unnecessary to comment on the conduct of the police officials, which in any case does not commend us.
Whether, having set aside the election of the appellant, the High Court was justified in declaring respondent no.1 as the President? - In the instant case, admittedly both the candidates had got equal number of votes polled and the appellant was declared as elected on the basis of draw of lots, held as per the prescribed procedure. Admittedly, the controversy did not relate to counting of votes. Under the circumstances, the direction of the High Court that the votes of the two arrested councillors be treated as having been cast in favour of the first respondent, in our view, is based on pure speculation that they would have definitely voted for him. In our opinion, the High Court has erred on this aspect of the matter and therefore, to that extent the impugned judgment cannot be sustained. Accordingly, the order of the High Court, declaring the first respondent as the President of the Anand Municipality is set aside.
In the result, the appeal partly succeeds and is allowed to the extent indicated above, with a direction to the Collector to reconvene the general meeting of the Municipality for the election of the President within two months of the receipt of copy of this order.
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2006 (9) TMI 551 - ITAT MUMBAI
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... ... ..... ed Departmental representative cannot be applied to the facts of the present case. The Income-tax Appellate Tribunal, Special Bench decision in the case of Motorola Inc. 2005 95 ITD 269 (Delhi) is squarely applicable and therefore, we hold that interest under section 234B is not leviable as the entire income was subjected to tax deductible at source. The liability for payment of advance tax arises under section 208 of the Act and the advance tax payable has to be computed under section 209. Section 209(1)(d) clearly stipulates that income-tax shall be reduced by the amount of income-tax, which would be deductible or collectible at source during the relevant financial year. Respectfully following the Tribunal Special Bench decision in the case of Motorola Inc. 2005 95 ITD 269 (Delhi) we direct the Assessing Officer to delete the interest levied under section 234B. 14. In the result, the appeals are allowed in part. 15. Order pronounced in the open court on September 18, 2006.
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2006 (9) TMI 550 - SUPREME COURT
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... ... ..... cleared without payment of duty was with the knowledge and consent of the Revenue. ...........The reference by the adjudicating authority to this Court’s decision reported in 1996 (83) E.L.T. 634 (S.C.) approving the CEGAT’s decision that though classification list was filed in relation to other articles manufactured by them, non-filing of classification list in respect of the concerned item will invoke longer period of limitation, is appropriate. From the discussions made hereinabove, we are convinced that this is a clear case on facts when the manufacturers did not bring it to the notice of the Revenue that the Aluminium Wire Rods would be utilised by them in the manufacture of Aluminium Wire ultimately cleared without payment of duty, longer period of limitation has been rightly invoked,” In this view of the matter, we do not find any infirmity in the order passed by the Tribunal. Accordingly, this appeal is dismissed. Parties shall bear their own costs.
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2006 (9) TMI 549 - AUTHORITY FOR ADVANCE RULINGS
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... ... ..... ions contained in sections 30 to 43D of the Act. When section 115WA of the Act says that FBT is in addition to income-tax and even when no income-tax is payable by an employer on his total income computed in accordance with the provisions of this Act, it will be futile to contend that if there is no total income which can be computed in accordance with the provisions of the Act, no FBT would be payable by the employer. Such an interpretation would be contrary not only to the intention of Parliament but also the plain language of the provision and the basic principles of interpretation. 18. Inasmuch as learned counsel for the applicant has given up reliance on the Double Taxation Avoidance Agreement between India and USA, we decline to express any opinion on the second limb of the question, referred to above. 19. For the above reason, we rule on the first limb of the question thus (i) the applicant is liable to pay fringe benefit tax under section 115WA of the Income-tax Act.
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2006 (9) TMI 548 - ITAT CHANDIGARH
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... ... ..... en charged at one consolidated price, then the assessee is entitled to bifurcate the same. A situation may arise where a gain from one of the capital assets is a short-term capital gain while from the other is a long-term capital gain and in such a situation, the benefit to the assessee cannot be denied in respect of a gain arising from the sale of an asset which could be considered as a long-term capital gain." This judgment of the Hon’ble Rajasthan High Court has been subsequently followed by the Hon’ble Karnataka High Court in the case of C.R. Subramanian (supra) as also by the Hon’ble High Court of Madras in the case of CIT v. D.L. Ramachandra Rao 1999 236 ITR 51 . No judgment to the contrary, on this issue has been brought to our notice by the learned DR. As a result, we hereby affirm the conclusion drawn by the CIT (Appeals) on this issue. Hence, the revenue fails on this ground of appeal. 9. In the result, the appeal of the revenue is dismissed.
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2006 (9) TMI 547 - DELHI HIGH COURT
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... ... ..... noticing the aforesaid facts, also noted the contention of the assessee that the assessee was prevented from producing a part of the documents desired by the Assessing Officer but had furnished a major part of the information/documents before the Assessing Officer. 6. As already mentioned, the only contention of learned counsel for the appellant is that the additional evidence ought not to have been taken on record by the CIT(A). 7. We find from the material placed before us that more than adequate opportunities were given to the Assessing Officer to respond to the application moved by the assessee for placing additional evidence before the Appellate Authority. Since the Assessing Officer took no interest in the matter, the Appellate Authority had no option but to allow the application and to take the additional evidence on record. No grievance can be raised by the revenue in this regard. 8. In our view, no substantial question of law arises for our consideration. Dismissed.
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2006 (9) TMI 546 - DELHI HIGH COURT
TDS u/s 194C - Payments made to agents of non-resident shipping companies - In respect of Ocean Freight and Inland Haulage Charges (IHC) - bills of lading - scope of Section 172 in the context of Section 194C - HELD THAT:- We are of the view that the question whether the payees in the instant case, were agents of the non-resident shipping companies is a question of fact, which has been decided against the Revenue concurrently by both the CIT (Appeals) as well as the ITAT. As already noticed, both the CIT (Appeals) as well as the ITAT have based their conclusions upon an appreciation of the evidence and held that in the facts and circumstances of the present case, the provisions of Section 194C of the Act are not attracted.
We, accordingly, hold that no substantial question of law arises in this appeal - The appeal is, accordingly, dismissed.
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2006 (9) TMI 545 - SC ORDER
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... ... ..... t have not been noticed in the impugned order. The special leave petition is dismissed reserving liberty with the petitioner to file an appeal against the order in review passed by the High Court as also against the findings recorded in the judgment impugned in the present petition.
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2006 (9) TMI 544 - SUPREME COURT
Whether the 1st party proves that they were employed by the 2nd party Management in the job of permanent and perennial in nature?
Whether the 2nd party Management proves that the 1st party workmen were employed under different contractors in the job of permanent and perennial in nature in various departments of the Management?
Whether the 2nd party proves that system of contract labour in respect of the nature of the workers involved in this Reference was not abolished in the 2nd party Industry and that this Reference is not sustainable?
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