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Case Laws
Showing 121 to 140 of 632 Records
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2006 (1) TMI 553 - PATNA HIGH COURT
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... ... ..... note and whether in consequence of the law which has now come to his notice he can easonably believe that income has escaped assessment. The basis of his belief must be the law of which he has now become aware. The opinion rendered by the audit party in regard to the law cannot, for the purpose of such belief, add to or colour the significance of such law. In short, the true evaluation of the law in its bearing on the assessment must be made directly and solely by the Income-tax Officer. The impugned reassessment orders, thus, do not come up to the test of an independent application of mind by the statutory authority and on that ground alone those are liable to be struck down. In the result the order of the writ court coming under appeal is set aside. The two appeals and the two writ petitions from which the appeals arise are allowed and the reassessment orders, dated October 29, 1985 for assessment periods 1982-83 and 1983-84 and the consequent demand notices are set aside.
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2006 (1) TMI 552 - SUPREME COURT
Whether the arbitration agreement is legal, valid and enforceable?
Held that:- The intention of the parties is abundantly clear that in case of dispute, the matter must be referred to arbitrator. To that extent, therefore, the agreement is legal, valid, in accordance with law and enforceable. In the instant case, such an agreement can be enforced even on an additional ground and that is clause 20 (severability). The said clause expressly states that if any provision of the agreement is held invalid, illegal or unenforceable, it would not prejudice the remainder. In my judgment, therefore, the intense of the parties is abundantly clear that in case of dispute the matter was to be referred to arbitrator and to that extent, no objection can be raised by the respondent.
In fact, on behalf of the respondent also, it was submitted that if the matter is referred to arbitration in foreign country, it had no objection but as the Arbitration Agreement in question provides 'Delhi' as the venue and as such a provision is enforceable, the prayer of the respondent cannot be accepted.
Finally, it was submitted that if this Court is not upholding the objection of the respondent and inclined to grant the prayer of the petitioner, some time may be granted to make an appointment of an arbitrator which was not done earlier because according to the respondent, there was no provision in the agreement for arbitration and clause 23 was not enforceable. The learned counsel for the petitioner has objected to such a prayer, according to him, a letter/notice was issued and in spite of a request has been made, the respondent had failed to exercise his right to appoint an arbitrator and at this belated stage, no such prayer deserves to be granted. In my opinion, since there is failure on the part of the respondent in making of appointment in accordance with the agreement, the prayer cannot be granted. Thus the arbitration petition stands allowed
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2006 (1) TMI 551 - SUPREME COURT
Whether Appellant employed by the Respondent herein as a Safety Officer had committed acts of misconduct?
Held that:- An order of suspension can also be passed by the employer in exercise of its inherent power in the sense that he may not take any work from the delinquent officer but in that event, the entire salary is required to be paid. An order of suspension can also be passed, if such a provision exist in the rule laying down that in place of the full salary, the delinquent officer shall be paid only the subsistence allowance specified therein.
The Appellant herein admittedly obtained the subsistence allowance offered to him without any demur whatsoever. The order of suspension was not passed as a measure of penalty within the meaning of the Rules. Rightly or wrongly, the Respondent invoked Rule 23.3 of HMT Limited Conduct, Discipline & Appeal Rules. The Appellant did not raise any question about the applicability of the said rule, although such a contention could have been raised.
In view of the fact that the order of suspension was not passed in terms of Rule 8 of the Rules, the findings of the Commissioner that the said rule will be applicable must be held to be incorrect. Appeal dismissed.
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2006 (1) TMI 550 - SUPREME COURT
Judgment of the Madras High Court convicting him under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 challenged
Held that:- The High Court did not consider the explanation offered by the appellant for the receipt of the money nor the previous enmity harboured by PW-1, PW-2 and PW-6 towards the appellant. Nor did it hold that the decision of the trial court was erroneous or perverse. The evidence throws out a clear alternative that the accused was falsely implicated at the instance of PWs.1, 2 and 6. If two views were possible from the very same evidence, it cannot be said that the prosecution had proved beyond reasonable doubt that the appellant had received the sum of ₹ 200/- as illegal gratification. We are, therefore, of the considered view that the trial court was right in holding that the charge against the appellant was not proved and the High Court was not justified in interfering with the same.
Allow this appeal, set aside the order of the High Court and restore the order of the trial court, acquitting the appellant of the charge.
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2006 (1) TMI 549 - KARNATAKA HIGH COURT
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... ... ..... with effect from 28th September, 1996. It is not in dispute that in the returns filed, the appellant has not shown the value of the benzene received before arriving at the assessable value of the denatured spirit even though it showed the value at the time of selling it to retail vendor. Probably because of this, the department did not notice the value of denatured spirit. It is during the audit and after enquiry when they noticed this omission, they have initiated appropriate proceedings under law to recover the duty payable thereon. In the facts of this case it cannot be said that the action of the authorities as upheld by the Tribunal, is contrary to law. In fact, to assess the penalty the Tribunal has remitted the matter to the Commissioner for redetermination. In the facts and circumstances of the case we do not find any substantial question of law, which arise in this appeal for consideration. Accordingly this appeal is dismissed. However, no order is made as to costs.
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2006 (1) TMI 548 - ITAT MUMBAI
Depreciation on two foreign made cars - two foreign cars for running them on hire in the past, but during the relevant previous year, the cars were not used for the specified business - whether an asset is entitled for depreciation or not? - HELD THAT:- In the present case, the foreign made cars are not otherwise eligible for depreciation. The only exception is that they can claim depreciation if deployed in the business of running it on hire for tourists. If the cars were used for hiring out for tourists in an earlier assessment year, depreciation was rightly allowed and the cars were rightly brought under a specified block of assets. But when those cars cease to be deployed for running on hire for tourists, the assets become non-eligible for depreciation and become a strange co-traveller in the company of other assets falling under that block of assets, still eligible for depreciation. Therefore, these two foreign cars not used for the specified purpose and not qualified for depreciation should vacate the block of assets. That has rightly been done by the Assessing Officer on the basis of his findings.
We do not find force in this contention. Once an asset is necessarily to be expelled from the eligible block of assets its written down value would be calculated by adjusting for the depreciation written off at the specified rate and deducting such depreciation allowed for all the earlier previous years and then work out the written down value. Even if for the purpose of depreciation law, an asset is losing its identity and merging with a block of assets, “the individual value of the asset is still traceable”.
Thus, we do not agree with the finding of the CIT(A) that a non-qualified asset should be granted depreciation only for the reason that the asset qualified for depreciation in the earlier assessment year and formed part of a block of asset. The above finding of the CIT(A) is, therefore, vacated. The order of the CIT(A) is not sustainable on this point.
The orders of the lower authorities on this factual aspect are not speaking and conclusive. Therefore, we are not in a position to come to a conclusion. Therefore, we remit back the issue to the Assessing Officer for the limited purpose of examining whether these two cars were hired out to tourists in the course of regular business either by the assessee directly or through a lease agreement. If the Assessing Officer finds that as a matter of fact, the cars were deployed in the business of hiring it out to tourists, depreciation may be granted, and if not the claim may be disallowed. The assessee is directed to furnish the details before the assessing authority and the assessee shall be given a reasonable opportunity of being heard on this point.
In result, this appeal filed by the Revenue is treated as allowed for statistical purpose.
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2006 (1) TMI 547 - ITAT MUMBAI
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... ... ..... he circumstances of the case and after considering all the aspects of the case, we find that the issue has to be decided in favour of the assessee. Therefore, we hold that the principles embodied in ldquo settlement rdquo dated March 3, 1987 would apply to the assessment years subsequent to the assessment year 1987-88. In the light of the above finding, we hold that the appeals filed by the Revenue for the assessment years 1995-96, 1996-97 and 1997-98 are liable to be dismissed. The cross-objection filed by the assessee for the assessment year 1995-96 has become infructuous as we have already dismissed the appeal filed by the Revenue. Therefore, the cross-objection is also liable to be rejected. As far as the appeal filed by the assessee for the assessment year 1998-99 is concerned, it has been withdrawn and therefore stands to be rejected. In the result, the appeals filed by the Revenue as well as the appeal filed by the assessee along with the cross-objection are dismissed.
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2006 (1) TMI 546 - CESTAT MUMBAI
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... ... ..... eal is dismissed as the amount involved is only about Rs. 72 lakhs (Rupees Seventy Two Lakhs only), which is not sufficient for justifying out of turn hearing. (Operative part pronounced in court)
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2006 (1) TMI 545 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Application for admission - Maintainability of ... ... ... ... ..... settlement of cases stipulates that a settlement, effective and meaningful, would require candid cooperation and frankness from a taxpayer, even if such assessee had not been candid in the past. This concept was further elaborated by Their Lordship of Supreme Court in the matter of Commissioner of Income Tax v. Express Newspaper Ltd. (206 TTR 443) rdquo . Following this observation, the Principal Bench had rejected the application of M/s. Modi Alkalies and Chemicals Ltd. 9. emsp Therefore, the Bench feels that the application does not meet the conditions of admission in terms of Section 32E of the Central Excise Act, 1944. Accordingly, the Bench is of the firm view that this application does not merit admission for want of full and true disclosure and, therefore the same is rejected and not allowed to be proceeded with in terms of Section 32F(1) of the Central Excise Act. The applications filed by the co-applicants are also rejected in terms of the provisions mentioned supra.
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2006 (1) TMI 544 - CESTAT, MUMBAI
Order - Adjudication order - Service of - Limitation ... ... ... ... ..... the duty amount somewhere around in the year 1998 in which year an order was passed. The duty amount has been paid roughly about 3 years after passing the Order-in-Original that too after receipt of letter from Range Supdt. This would show non-receipt of the copy of the order by the appellants even after the period of limitation. Therefore, the impugned order is set aside. There appears every reason that the appellants have filed the appeal before the Commissioner (A), during the period of limitation after gaining knowledge. The mater is being remitted back to the Commissioner (A), who shall dispose of the same on merits in respect of penalty imposed. This remand order makes it clear that the appeal before the Commissioner (A) filed by the appellants was within the time and even if any delay, the same is condoned. In the result, the appeal is allowed in remand for fresh adjudication on merits confirming to imposition of penalty amount. Order accordingly. (Pronounced in court)
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2006 (1) TMI 543 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - EOU, 100% EOU - Clearances made to DTA ... ... ... ... ..... ot applicable. However, in terms of the Notification, the excise duty that is required to be confirmed has to be the tariff rate. The tariff rate is nil. In this circumstance, it is not clear as to how excise duty could be confirmed in the matter. In Para 34 of the impugned order, the Commissioner has noted that in terms of the cited Larger Bench judgment 50 of the duty of Customs can be confirmed but there was no demand for Customs duty in the show cause notice. Furthermore, the Larger Bench judgment has already been set aside. Therefore, prima facie, the plea that the impugned order is not sustainable is required to be considered. The appellants have a very strong case on merits. Hence, they are given full waiver of pre-deposit of duty and penalty in the matter and staying its recovery. As the Revenue implication is more than Rs. 1.5 crores, the appeal is required to be heard out of turn. Matter to come up for hearing on 8th May 2007. (Pronounced and dictated in open Court)
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2006 (1) TMI 542 - CESTAT, MUMBAI
Demand - Limitation - Delay in payment of outstanding balance of duty ... ... ... ... ..... sioner (A) has rightly observed the same and allowed their appeal. At this juncture it is observed that the Asst. Commissioner of the Central Excise and Customs, Aurangabad has committed error in issuing the Show-Cause-Notice which is not contemplated under the relevant provisions for simply effecting the recovery of outstanding dues. He was also aware about the detention of the goods, which / have been dealt with as per the law for recovering of the dues. On considering the entire matter carefully, I am of the view that the impugned order passed by the Commissioner (A) is legally sustainable, as such the same is to be upheld and as the outstanding amount of duties to the tune of Rs. 2,32,000/- (Rupees Two Lakhs Thirty Two Thousand only), admittedly due, to the same may be paid by the assessee/Respondent as earlier as possible and get released the detained goods. In the result, the appeal filed by the revenue is dismissed with the aforesaid observations. (Pronounced in court)
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2006 (1) TMI 541 - ITAT DELHI
Penalty - For failure to deduct tax at source ... ... ... ... ..... for which commission was paid to M/s. Vineet Estates Private Limited by the assessee-company was finalized to the satisfaction of the principal company, i.e., M/s. FIITJEE Limited on or before 15-5-2001 which was prior to 1-6-2001, the date of applicability of the provisions of section 194H of the Income-tax Act, 1961. Further, the assessee-company was required to pay M/s. Vineet Estates Private Limited consolidated commission of 12 per cent of the gross amount received as initial payment from the franchisees introduced through him. No material could be brought on record by the revenue to show that the payment from M/s. FIITJEE Limited was not received by the assessee on 15-5-2001. Therefore, in our considered opinion the ld. Jt. CIT was not justified in levying penalty of Rs. 3,06,000 on the assessee. Hence, we set aside the order of the Assessing Officer and the CIT(A) and delete the levy of penalty of Rs. 3,06,000. 16. In the result, the appeal of the assessee is allowed.
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2006 (1) TMI 540 - ITAT MUMBAI
Business expenditure ... ... ... ... ..... of rebuttal to the revenue. The objection can be taken care of by restoring the matter to the file of the CIT(A), who should afford opportunity of being heard to the Assessing Officer and then re-examine the claim whether expenditure was capital or revenue in nature after considering all the relevant material. This is another reason for restoring the matter to the file of the learned CIT(A). 14. In the above circumstances, we set aside the impugned order of the CIT(A) on this point and restore the matter to his file for considering of the question whether expenditure of Rs. 21.84 lakhs claimed by the assessee towards payment of BMC was revenue or capital in nature. The question shall be determined in accordance with law after affording reasonable opportunity of being heard to both the parties. Pronounced in the open court on the date of hearing i.e. 16-1-2006 15. In the result, appeal of the revenue is dismissed while that of the assessee is allowed for statistical purposes.
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2006 (1) TMI 539 - ITAT MUMBAI
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... ... ..... ned was held as an application of convertible foreign exchange. In the present case, no convertible foreign exchange is received at all against sale proceeds. What it received was only shares, not approved by RBI. In view of this, we are of the view that the conditions laid down in section 80HHC are not satisfied and, therefore, the assessee is not entitled for deduction for the sum equivalent to US 3,00,000 received in the form of shares in USA. 28. Therefore, in view of the facts and circumstances of the case, we hold that the assessee was not entitled for the deduction under section 80HHC or 80HHE on the balance amount of Rs. 1,28,51,014. Therefore, we reject the ground of the assessee to this extent. 29. The remaining grounds is in regard to charging of interest under section 234B, which is consequential in nature and therefore, the Assessing Officer is directed to give consequential relief to the assessee. 30. In the result, the appeal of the assessee is allowed in part.
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2006 (1) TMI 538 - ITAT DELHI
Business expenditure ... ... ... ... ..... upon by the learned A.R. of the assessee, the same pertains to the well known principles laid down by the Hon rsquo ble Apex Court and other High Courts in India that if the liability is incurred, it has to be allowed as deduction in the year in which the liability is incurred even if the same is not quantified or is payable at a future date. But in the present case we have found that the liability itself had been incurred by the assessee only during the financial year 1998-99. 9. In view of the discussion in the foregoing paragraphs, we are of the view that the learned Assessing Officer was justified in adding back the sum of Rs. 72 lakhs provided for in the accounts of the assessee and the learned CIT (Appeals) erred in directing the allowance of the same to the assessee. We, therefore, reverse the order of the learned CIT(Appeals) on this point and restore the assessment order as made by the Assessing Officer. 10. In the result, this appeal filed by the revenue is allowed.
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2006 (1) TMI 537 - ITAT MUMBAI
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... ... ..... art of the loan was availed from the Kotak Mahindra Ltd. and the margin money was brought out of the overdraft account which is a liability on the assessee. Such liability is required to be reduced out of the value of the assets for the purposes of computing net wealth under section 3 read with section 2(m) of the Wealth-tax Act. 9. In view of the above observation we are persuaded to agree with the learned Authorized Representative that lower authorities were not justified in not reducing the overdraft facility availed by the assessee for purchase of motor car, which was having direct nexus between the purchase of car and corresponding increase of overdraft liability. We are therefore, inclined to reverse the finding of the lower authorities and direct the Assessing Officer to reduce the amount of overdraft availed for acquisition of motor car while computing net wealth under section 2(m) of the Wealth-tax Act. 10. In the result, both the appeals of the assessee are allowed.
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2006 (1) TMI 536 - ITAT MUMBAI
Business income, Deductions ... ... ... ... ..... ort activities would not result in savings in indirect expenses relating to export trade. 41. Another issue, which requires to be considered is whether deduction under section 80HHC has to be restricted on the basis of foreign exchange brought into India, we are of the view that the Assessing Officer and hence CIT(A) are justified in restricting the claim of deduction under section 80HHC on the basis of foreign exchange brought into India. It has been held in D.B. Exports India v. CIT 1998 231 ITR 836 (Punj. and Har.) that where export proceeds are not brought into India even after repeated extension of time, the deduction under section 80HHC would not be admissible. In view of this, we confirm the action of Assessing Officer and CIT(A). As a result, the issue is set aside to the file of Assessing Officer for deciding the issue in the light of the observations made by us. 42. In the result, the appeal of the assessee is allowed for statistical purpose only as indicated above.
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2006 (1) TMI 535 - ITAT HYDERABAD
Business disallowance, Deductions ... ... ... ... ..... cision of the Hon rsquo ble Supreme Court in the case of Berger Paints India Ltd. v. CIT 2004 266 ITR 99 , and submitted that the decision of the Hon rsquo ble Gujarat High Court in the case of Lakhanpal National Ltd. (supra) was upheld. 9. After hearing rival contentions, we are of the considered opinion that the issue is covered in favour of the assessee and against the Revenue by the decision of the Hon rsquo ble Supreme Court in the case of Berger Paints India Ltd. (supra). The decision of Special Bench of the Tribunal referred to above is not applicable to the facts of the case inasmuch as that case was dealing with situation where certain amounts had to be paid in advance, that is, even before the purchase of the goods. In the case on hand, the expenditure in question was paid only after it became due. For these reasons, we uphold the order of the first appellate authority and dismiss this ground of the Revenue. 10. In the result, the appeal of the Revenue is dismissed.
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2006 (1) TMI 534 - ITAT HYDERABAD
Deemed wealth ... ... ... ... ..... which could be considered as one which would disprove the claim of the assessee that the buildings were constructed with due approval from the concerned authorities. Even otherwise, these buildings may fall within the definition under section 2(ea)( i) - exceptions (1) to (5) in section 2(ea)(i ). Thus, we hold that the property in question cannot be considered as an asset within meaning of section 2(ea) of the Wealth-tax Act. 8. Further, we notice that the Assessing Officer had applied Schedule III, which means that the rental value of the buildings has been taken into consideration for the purpose of valuing the property. It is not a case where only land portion was considered as an asset and valued so as to bring the same to tax. 9. Thus, on both these counts, we allow the appeals of the assessee and direct the Assessing Officer to exclude the value of Zeba Bagh property from the net wealth of the assessee. 10. In the result, all these appeals of the assessee are allowed.
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