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Showing 61 to 80 of 873 Records
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2010 (1) TMI 1249 - ITAT MUMBAI
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... ... ..... ty in this case. Now, it is well settled principle that sec. 68 is in nature of deeming provision and deeming provision is to be interpreted in limited context for which it is brought on statute book . Though the addition is confirmed by the Tribunal, but at the same time, for examining the said issue under the penalty proceedings, two views are possible. Moreover as rightly submitted by the Ld. Consule there are divergence of views on the issue whether addition under sec. 68 can be made in respect of capital introduced by a partner in the firm. In our considered opinion in light of discussion and for the reasons stated hereinabove it can not be said that the assessee has concealed the particulars of income or furnished inaccurate particulars of income and hence, there is no justification to sustain the penalty levied by the Assessing Officer. We, accordingly, delete the same. 7. In the result, assessee’s appeal is allowed. Order pronounced on 27th day of January 2010.
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2010 (1) TMI 1248 - SUPREME COURT
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... ... ..... ting ratio thereof. 6. Learned counsel for the respondent made strenuous efforts to convince us that the impugned direction has been given by the learned Single Judge because of the poor health of the respondent and after taking note of the judgment of the High Court in Tar Balbir Singh v. Union of India and another 1992 (3) RCR (Criminal) 210, but we have not felt impressed and are not inclined to accept his statement because no material has been produced before this Court to show that due to illness it is impossible for the respondent to undertake journey from Ludhiana to Ahmedabad. 7. For the reasons stated above, the appeal is allowed. The impugned order is set aside. The officers of the Directorate of Revenue Intelligence shall now be free to issue appropriate summons to the respondent for his appearance at an appropriate place. In case the respondent fails to comply with the summons, then the concerned officers shall be free to proceed in accordance with law.
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2010 (1) TMI 1247 - ITAT MUMBAI
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... ... ..... learned CIT(A), that the Assessing Officer did not have any powers to tinker with the sale price of the asset and that he ought to have taken into account such sale price for the purpose of computing the block of assets. No interference is thus called for. We approve the stand of the CIT(A) and decline to interfere in the matter.” Learned Counsel, therefore submitted that the Assessing Officer has no justification in taking into consideration the assumed market value for the purpose of reducing the same from the block of assets. 7. On the other hand, learned D.R. strongly relied upon the Order of the Assessing Officer. 8. We have carefully considered the rival submissions and perused the record. Since the view taken by the learned CIT(A) is in consonance with the view taken by the ITAT, ‘E’ Bench, Mumbai (supra), we do not find any infirmity in the Order of the learned CIT(A). Therefore, the appeal filed by the Revenue is dismissed. Pronounced accordingly.
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2010 (1) TMI 1246 - SUPREME COURT
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... ... ..... vested with the original plaintiff (since deceased), after the expiry of term of 42 years. It is also true that directing the delivery of the entire property to the appellant would cause prejudice to the rights of the Respondents and would put him to loss. As noted hereinabove, the partnership got dissolved on the death of the original plaintiff (since deceased), it would be reasonable to allow both the parties to take their respective properties. The Appellants are entitled to the exclusive possession of the land and the Respondents are entitled to take away the movables from the property and recover the value of the buildings and structure embedded to the land. It has to be assessed by the technically qualified person. The Appellants are liable to pay the value of the remaining structures after adjusting the amount if any due to the Appellants. 42. Accordingly, we do not find any merit in these appeals and the appeals are thus dismissed. There will be no order as to costs.
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2010 (1) TMI 1245 - GUJARAT HIGH COURT
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... ... ..... dy laid down by the High Court, the State Government has to lodge its claim with the Official Liquidator in accordance with law along with all other Unsecured Creditors. 6. As a consequence any entry made pursuant to such assessment framed after order of winding up cannot be sustained. Revenue Authorities were therefore, not justified in making the aforesaid entries as appearing in the revenue record as reflected by 7/12 extract placed on record. Accordingly, respondent authorities, more particularly respondent Nos. 2, 3 and 4 are hereby directed to cancel the aforesaid entries registering the so called charge of Sales Tax Department and the Gram Panchayat tax as arrears of land revenue to ensure that the applicant gets free and clear marketable title qua the property of the Company in liquidation purchased vide order dated 9.1.2008 made in OLR No. 259 of 2007. 7. Accordingly, the Application is allowed in the aforesaid terms and stands disposed of with no order as to costs.
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2010 (1) TMI 1244 - GUJARAT HIGH COURT
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... ... ..... ells as Buildings for the purpose of applying rate of depreciation under Section 32 of the Income Tax Act? 2. Heard Mr. S.N.Soparkar, the learned Senior Counsel appearing with Ms. Niti P. Sheth for Mrs. Swati Soparkar, for the appellant and perused the order passed by the Tribunal. 3. We are of the view that substantial question of law does arise out of the order of the Tribunal and hence, we formulate the above referred question as the substantial question of law after the Appeal being admitted. 4. Notice to the other side. Additional paper book, if any, to be filed within three months from today.
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2010 (1) TMI 1243 - ITAT MUMBAI
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... ... ..... Held, affirming the decision of the High Court, that the liability of the assessee to the foreign company was to issue equity shares of a value equal to the amount advanced by the foreign company for the plant and machinery. It was only if, for any reason,, the shares could not be allotted that the question of compensating the foreign company might arise. In these circumstances, it could not be said that there was a debt owed by the assessee to the foreign company for the purpose of computing the capital under section 80J.” 4. Further, the first appellate authority has recorded a finding of fact that the money taken as share application money was actually utilized for allotment of shares. This factual finding has not been controverted by the learned DR with any evidence. Thus in view of the above discussion, we uphold the order of the first appellate authority. 5. In the result, the appeal of the Revenue is dismissed. Order pronounced on this 19th day of January, 2010.
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2010 (1) TMI 1242 - CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
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... ... ..... e High Court of Allahabad. Moreover, in the related matter, the Hon’ble Apex Court ordered for maintaining the status quo with regard to seniority, and moreover this Tribunal is not the proper forum in order to ensure compliance of the order of the Hon’ble High Court of Gujarat and Hon’ble Apex Court. Considering all the circumstances and facts, as stated above, we are of the opinion that the impugned order dated 04.08.2010 deserves to be set aside, and in the light of the observations made in the body of the Order, it will not be suffice to set aside the impugned order but rather the O.A. is liable to be dismissed and as the applicant tried to place the misleading facts hence, O.A. is to be dismissed on heavy cost. 16. Above Modification/Recall Applications are allowed. The impugned order dated 04.08.2010 is set aside and recalled. And the O.A. No. 1084 of 2010 is also dismissed accordingly, and a heavy cost of ₹ 10,000/- is imposed on the applicant.
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2010 (1) TMI 1241 - SUPREME COURT
Arbitration Proceedings - application u/s 11 - Whether there exists an arbitration agreement between the parties? - whether the BSNL while evaluating the bidders had committed an error in adjudging NICCO as V-1 (vendor with the highest rating) ? - HELD THAT:- Considering the matter on record, we are of opinion that only when a purchase order was placed, a ‘contract’ would be entered; and only when a contract was entered, the General Conditions of Contract including the arbitration clause would become a part of the contract. If a purchase order was not placed, and consequently the general conditions of contract (Section III) did not become a part of the contract, the conditions in Section III which included the arbitration agreement, would not at all come into existence or operation. In other words, the arbitration clause in Section III was not an arbitration agreement in praesenti, during the bidding process, but a provision that was to come into existence in future, if a purchase order was placed. In this case, the dispute raised is in regard to a claim for ₹ 10,61,28,000/- as damages on account of BSNL not placing a purchase order, that is loss of profit @ ₹ 200/- per CKM for a quantity of 5.306 LCKM. Obviously the respondent cannot invoke the arbitration clause in regard to that dispute as the arbitration agreement was non-existent in the absence of a purchase order.
Thus in the absence of any purchase order in respect of 5.306 LCKM by BSNL on the respondent, respondent cannot seek recourse to the arbitration agreement contained in clause 20 of Section III of the bid document, in regard to a dispute relating to that quantity for which order was not placed. It is not sufficient to show that there was an arbitration agreement in regard to some contract between the parties.For the foregoing reasons, we hold that in the absence of an arbitration agreement, the application under section 11 of the Act was not maintainable.
High Court chose to issue a direction for re-assessment of the vendor rating and if respondent was found to have V-1 rating, then place a purchase order for the quantity that remained over after all the purchase orders. This was unobjectionable as a public law remedy - As there was no justification for the High Court to make any observation regarding compensation, as that was impermissible on the facts and circumstances, either in public law or private law. In fact, it was not based on any prayer. That unwarranted observation while disposing of the first writ petition, though it did not cast any liability on BSNL, was sufficient to persuade the designate of the Chief Justice while exercising jurisdiction under section 11 of the Act to assume that the High Court in the order dated 29.4.2004 had ordered the respondent to pursue the remedy against the appellant for compensation/damages and therefore, an arbitrator should be appointed to decide the claim.
Instances abound where observations of the court reserving liberty to a litigant to further litigate have been misused by litigants to pursue remedies which were wholly barred by time or to revive stale claims or create rights or remedies where there were none. It is needless to say that courts should take care to ensure that reservation of liberty is made only where it is necessary, such reservation should always be subject to a remedy being available in law, and subject to remedy being sought in accordance with law.
Vulnerable position of public undertakings - Public undertakings to avoid being accused of malafides, bias or arbitrariness spend most of their time and energy in covering their back rather than in achieving development and progress. When courts grant stay, the entire projects or business ventures stand still or get delayed. Even if ultimately the stay is vacated and the complaint is rejected as false, the damage is done as there is enormous loss to the public undertaking in terms of time and increase in costs. The private sector is not open to such scrutiny by courts. When the public sector is tied down by litigations and controls, the private sector quietly steals a march, many a time at the cost of the public sector. We are not advocating less of judicial review. We are only pointing out that if the public sector has to survive and thrive, they should be provided a level playing field. How and when and by whom is the question for which answers have to be found.
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2010 (1) TMI 1240 - ITAT AHMEDABAD
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... ... ..... onsidering the facts of the case in the light of the above decision of the Tribunal, it is clear that assessee has apart from agricultural income and has interest income on the FDR and postal monthly income from the known sources. The income from these sources are specific and ascertained. Therefore, the assessee would have been left with the agricultural income which is exempt. The above decisions of ITAT Indore Bench, in the case of Smt. Shahenaj Bano (Supra) and Narendra Badjatiya (Supra) are clearly applicable to the above case. Sicne, the assessee has only agricultural income and Assessing Officer has not brought any evidence on record that assessee has income from other sources also, therefore, there is not reason to sustain the orders of the authorities below. We accordingly set aside the orders of authorities below and delete the addition of ₹ 1,50,000/-. 9. As a result, appeal of the assessee is allowed. Order pronounced in the open court on 8th January, 2010.
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2010 (1) TMI 1239 - KARNATAKA, HIGH COURT
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... ... ..... AN ZINC LTD. Vs. UNION OF INDIA (2008 228 E.L.T. 517 Raj). Relying on the aforesaid judgment of the supreme Court in a case dealing with whether CENVAT credit was admissible on welding electrodes used for repairs and maintenance of plant and machinery, it was held all goods used for repairs and maintenance of plant and machinery are eligible for CENVAT credit both as capital goods we all as inputs. We respectfully agree with the said judgment rendered by the Division Bench of the Rajasthan High Court. In fact, this judgment has been taken note of by the authorities while extending the benefit to the respondet/assessee. Therefore, we answer the substantial question of law in favour of the assessee, holding that manufacturer/assessee is entitled to CENVAT credit of the value of welding electrodes used for repairs and maintenance of equipments in the course of manufacture of the product as an input in the production of excisable goods. 6. In the result, the appeal is dismissed.
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2010 (1) TMI 1238 - ITAT AHMEDABAD
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... ... ..... penses on the ground that there were self-made vouchers and that there was a personal element to use the vehicle by the partners and their personal purposes. The Learned CIT(Appeals) considering the nature of the business of the assessee and the material on record, restricted the addition to 10 and remaining addition was deleted. 35. On consideration of above facts and considering that no specific finding is given against the assessee on this issue, we are of the view that the Learned CIT(Appeals) was justified in modifying the addition to 10 of the total expenses. As a result, ground No.5 of the appeal of the Revenue is dismissed. 36. Ground No.6 of the appeal of the Revenue is general in nature and the same is dismissed as such. 37. No other point is argued or pressed by both the parties. 38. In view of the above discussion, the appeal of the assessee is partly allowed, whereas Departmental appeal is dismissed. Order signed, dated and pronounced in the Court on 22 01/2010.
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2010 (1) TMI 1237 - CESTAT, BANGALORE
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... ... ..... 89. Hence Revenue's appeal has no merits. The same is rejected." In our view, considering the views taken by this Bench in the above mentioned case and also the reliance of the Commissioner (Appeals) on the decision of the Hon'ble High Court of Calcutta, it is very clear that by rescinding the notification, the credit accrued does not lapse and it can be utilized. Further credit accrued to one unit could be used at other unit at a different place owned, by the same manufacturer. In these circumstances, we do not find any merit in the Revenue's appeal and the same is dismissed." 4. Since the issue is now stands settled in favour of the respondents, on the very same issue, I do not find any reason for interference is required in the order of the ld. Commissioner (Appeals) and I hold that the impugned order is correct and legal, and does not suffer from any infirmity. 5. Accordingly, Revenue's appeal is dismissed. Pronounced and dictated in open court.
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2010 (1) TMI 1236 - ITAT AHMEDABAD
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... ... ..... e of the view that the learned CIT(A) is justified in deleting the same and our interference is not called. o p /o p 6. The appeal of the revenue is dismissed. o p /o p CO No.209/Ahd/2008 o p /o p 7. Grounds of appeal taken by the assessee reads as under o p /o p “On the facts and circumstances of the case and in law, the learned CIT(A) has erred in not deleting the disallowance of interest of ₹ 12696 made by the learned DCIT, Circle-4, Baroda in the assessment order dated 10.12.2007 passed u/s 143(3) of the Income Tax Act, 1961’ o p /o p 8. We find from the order of the learned CIT(A) that he has not dealt with the ground raised by the assessee in cross objection and at the time of hearing also, the learned AR did not press the cross-objection. Therefore, we dismiss it as not pressed. o p /o p 9. In the result, the appeal of the revenue and cross objection of the assessee both are dismissed. o p /o p Order pronounce in the open court on 29.1.2010. o p /o p
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2010 (1) TMI 1235 - ITAT BANGALORE
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... ... ..... ore it is capital expenditure. 8. Aggrieved by the order of the CIT(Appeals), the assessee is in appeal before the Tribunal. It was contended that the issue is squarely covered by the decision of the Tribunal in the case of M/s. Ramgad Minerals & Mining Pvt. Ltd. v. ACIT, Bellary in ITA No.1012/Bang/08 by order dated 9.409. The ld. CIT(DR) also conceded as such. The Tribunal held that by virtue of various acts along with direction of the Hon’ble Supreme Court making the ruling is binding. The Government crated a body to recover from the Afforestation because of uprooting of the trees as a result of mining activities, to which the assessee was to contribute by way of a fund. It is difficult to hold that this contribution is actually a part of royalty and therefore following the decision of the Tribunal in the case cited supra, we allow the appeal by the assessee. 9. In the result, the appeal is allowed. Pronounced in the open court on this 22nd day of January, 2010.
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2010 (1) TMI 1234 - ITAT DELHI
Addition u/s 68 - Unexplained credit - share application money and share premium money - Addition made as there is no basis on which the shares of the assessee company can command premium of ₹ 490/- per share - reliance on Tribunal order in the preceding year in deleting addition by CIT(A) - HELD THAT:- We find that the relevant para of this Tribunal decision rendered in the case of the assessee in assessment year 2000-01 this aspect was not there in that year that the share application money was received by the assessee company at a high premium of ₹ 490/- per share whereas in the present year, this is the main basis on which addition was made by the Assessing Officer. Hence, merely on this basis of the Tribunal order in the preceding year, the issue in the present year cannot be decided and in the same, this aspect has to be examined as to whether the receipt of high share premium of ₹ 490/- per share in the present year is reasonable and in spite of this high premium, the transaction of receipt of share application money in the present year can be accepted as a genuine transaction.
Regarding judgment of Lovely Exports [2008 (1) TMI 575 - SC ORDER], we feel that judgment is not squarely applicable in the present case because the facts are different. In that case, it was not the allegation of the revenue that because of high amount of share premium on per share, that the transaction in question was not genuine. Hence, we feel that this matter should go back to the file of the Ld CIT(A) for afresh decision.
We set aside the order of the Ld CIT(A) on this issue to the extent of addition deleted by him on amount received by the assessee company during this year and restore this matter back to the to his file for a fresh decision.Appeal of the revenue stands allowed for statistical purposes.
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2010 (1) TMI 1233 - ITAT HYDERABAD
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... ... ..... and the genuineness of the transaction, in our opinion, remitting the matter back would not cause prejudice to the interests of the Revenue in any way. The intention of the Parliament is to compute the right taxable income. When the assessee claims that she can furnish the necessary details as required by the lower authority, giving an opportunity to produce such material may not prejudice the interests of the Revenue at all. In our opinion, giving such an opportunity would meet the ends of justice. Accordingly, we set aside the orders of the lower authorities on this issue and remit the matter back to the file of the AO. The AO shall examine the issue on the basis of the material that may be produced by the assessee before him and thereafter decide the same in accordance with law after giving a reasonable opportunity to the assessee. 11. In the result, both these appeals of the assessees are partly allowed for statistical purposes. Order pronounced in the Court on 8-1-2010.
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2010 (1) TMI 1232 - GUJARAT HIGH COURT
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... ... ..... e order of the Tribunal and hence the Appeal deserves to be dismissed. 10. It is however made clear that the issue regarding exemption is still pending and if the exemption is granted to the appellant assessee, the quantum of demand is bound to be reduced substantially. Keeping this fact in mind, we direct the respondent authorities to decide the issue with regard to the assessee's claim of exemption under sec. 49(2) as per the direction of the Tribunal given vide its order dated 30.7.2009 within one month from the date of receipt of the writ or from the date of receipt of a certified copy of this order, whichever is earlier, and till the appropriate decision is taken in the matter, the recovery of demand may not be enforced against the appellant. 11. Subject to the aforesaid direction, this Appeal is accordingly dismissed with a liberty to apply in case of difficulty. Since the Appeal is dismissed, the Civil Application no longer survives and it is accordingly rejected.
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2010 (1) TMI 1231 - KARNATAKA HIGH COURT
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... ... ..... er has to approach the appellate challenging the assessment order and making grievance against the attachment order, it he is so advised. 5. Upon hearing leaned counsel for the petitioner and in the light of the judgment rendered by this Court referred to above, it is required to be clarified that if the account held by the petitioner with the Vijaya Bank, South End Road, Bangalore, is an Overdraft Account, wherein overdraft facility is extended to the petitioner, then the attachment order issued by the first respondent cannot have the effect of freezing the said account. It is also made clear that in the event the authorities choose to proceed against any other account of the petitioner, they are entitled to do so. This order will not also come in the way of the petitioner in preferring an appeal before the appropriate in preferring an appeal before the appropriate authority, challenging the assessment order. Writ petitions stand disposed of with the aforesaid observations.
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2010 (1) TMI 1230 - SUPREME COURT
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... ... ..... discussed in the earlier part of the judgment, the claim made by the appellants is in no way inconsistent with or derogatory to the defence set up by Abdul Razak. In any case, once the additional written statement filed by the appellants was taken on record without any objection by respondent Nos. 1 and 2, who also led their evidence keeping in view the pleadings of the additional written statement, the High Court was not at all justified in allowing the application filed for striking off the additional written statement and that too without even adverting to Order VI Rule 16 CPC and considering whether respondent Nos. 1 and 2 were able to make out a case for exercise of power by the court under that provision. 27. In the result, the appeal is allowed. The impugned order of the High Court is set aside and the one passed by the trial Court is restored. Respondent Nos. 1 and 2 shall pay cost of ₹ 25,000/- to the appellants for burdening them with unnecessary litigation.
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