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Showing 121 to 140 of 551 Records
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2006 (4) TMI 466 - ORISSA HIGH COURT
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... ... ..... inside the State of Orissa by virtue of a contract for assembling at Paradeep. On the other hand, the very document annexed as annexure C/1 series, i.e., the form of way-bill, clearly indicates that these goods are for onward despatch outside the State of Orissa (high seas location for oil and gas exploration) through Paradeep Port . In the aforesaid premises, as there is nothing in the assessment as regards the contract with M/s. Baker Hughes Singapore Pvt. Ltd., as indicated in the counter-affidavit filed by the opposite parties, and in view of the fact that there is nothing to indicate in the assessment orders that the goods were entered into the local area as defined in the OET Act for consumption, use or sale therein, we have no hesitation to quash the assessment orders passed by the assessing authority-O. P. No. 1 as well as the demand notices, vide annexure 1 and we order accordingly. Both the writ petitions are accordingly allowed. There will be no order as to cost.
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2006 (4) TMI 465 - ORISSA HIGH COURT
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... ... ..... at memo of appearance, the petitioner was directed to furnish the detail list of cloth purchased from local registered dealers by June 30, 2004. For the purpose of an assessment under the Entry Tax Act, this court does not accept this kind of ad hoc manner of notice/assessment and the same is in clear violation of the provisions of the Act. This court also deprecates the manner in which the assessment order was passed on a printed form and without any application of mind. Thus the assessment order vide annexure 1 is quashed. The appropriate authority is given liberty to initiate assessment proceeding and pass appropriate order under the Entry Tax Act strictly in consonance with law. In view of the above observation, the writ petition is allowed. The impugned assessment order at annexure 1 and annexure 1-A, which is the demand notice on the basis of annexure 1, are quashed. A free copy of this order be supplied to the learned counsel for the State for necessary communication.
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2006 (4) TMI 464 - DELHI HIGH COURT
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... ... ..... ppeal as in (i) above is preferred by the petitioner, the Delhi Administration shall appear before the appellate authority and before every authority to which the matter may thereafter be taken to ensure that a proper adjudication of the issues raised by the petitioner including the question whether the transaction is an inter-State or intra-State sale takes place at an early date. (iii) Parties aggrieved by the adjudication of issues by the Appellate Authority including the Tribunal shall be free to seek proper redress in appropriate proceedings before the appropriate forum. (iv) The appeal which the petitioner may file shall be heard and disposed of early but not later than six months from the date the same is presented before competent appellate authority. (v) For a period of six months and till such time the appeal is finally disposed of by the appellate authority, the interim order made by this court on February 7, 2006 shall continue to remain operative. (vi) No costs.
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2006 (4) TMI 463 - SUPREME COURT
Whether appellants' application under Section 20 of the Arbitration Act, 1940 is being barred by the law of limitation?
Held that:- Already the matter is pending adjudication from 1987 onwards, respondent Nos. 1-9 are admittedly in possession and enjoyment of the valuable immovable properties depriving the valuable rights of the appellants the other respondent Nos. 10-20. We should not, therefore, allow respondent Nos.1-9 to drag the proceedings any further. Parties have to settle their disputes one day or the other. In our opinion, the time has now come to nominate a single Arbitrator as provided under clause 13 of the agreement. It was argued that in case this Court allows the appeal, the matter may be remitted to the High Court for appointment of a single Arbitrator and in case the parties are unable to agree upon a single Arbitrator a panel of three Arbitrators shall be appointed as provided in the said agreement. We feel that such a course, if adopted, would only enable the contesting respondent Nos.1-9 to squat on the property and enjoy the benefits, income etc. arising therefrom.
We, therefore, appoint Hon'ble Mr. Justice S.N. Variava, a retired Judge of this Court as a single Arbitrator and decide the dispute between the parties within 6 months from the date of entering upon the reference
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2006 (4) TMI 462 - CESTAT MUMBAI
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... ... ..... bsp Silk Lines v. CC, Bangalore - 2002 (142) E.L.T. 597 (ii) nbsp Vipin Enterprises v. CC, Kandla - 2002 (145) E.L.T. 164 (iii) nbsp H.C.L. Ltd. v. CC, Calcutta - 2000 (126) E.L.T. 808. 36. Therefore, in the light of aforesaid discussion, I find that the penalties reduced by Hon rsquo ble Member (Judicial) on M/s. Deepali Exports, M/s. Vaibhav Exports and M/s. Pushpak Impex and setting aside the penalties of M/s. Kiran Exports, M/s. Munjani Exports and M/s. D.S. Brothers is justified and would meet the ends of justice. Accordingly I agree with the order passed by the Hon rsquo ble Member (Judicial). (Pronounced in court on 28-4-2006) Sd/- (T. Anjaneyulu) Member (Judicial) MAJORITY ORDER 37. In view of the fact that the third member has agreed with the order recorded by the Member (Judicial). The appeals are disposed of in terms of the majority order recorded by Member (Judicial). Sd/- (Chittaranjan Satapathy) Member (Technical) 13-6-2006 Sd/- (Krishna Kumar) Member (Judicial)
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2006 (4) TMI 461 - CENTRAL INFORMATION COMMISSION
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... ... ..... one of the standing of the CSIR. Decision (1) The information sought by the appellant be provided to him within fifteen days from the issue of this decision. (2) The PIO Dr DS Bedi seems to have had no reasonable ground for delay in sending the brief and slipshod response to the application of the appellant. The complaint of mala fide intent has not been denied. He will thus show cause within ten working days u/s 20(1) of the Act as to why he should not pay the prescribed penalty for delaying his response and not providing the information, which has not thus far been received by the appellant, from November 26, 2005 when it became due. (3) Although the Appellate authority is not covered by the penal provisions of this Act, Shri VK Gupta has clearly failed in this case to uphold the law or act in the public interest. A copy of this decision may be sent to DG CSIR to consider disciplinary action under the CSIR rules. Notice of this decision be given free of cost to the parties.
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2006 (4) TMI 460 - ITAT CHANDIGARH
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... ... ..... m, therefore, of the considered view that the ingredients of lottery are present in the scratch card scheme. Moreover, it is evident from the definition of lottery read with the Explanation to section 2(24) that any scheme for promotion of sale by which the participants purchase a product falls within the definition of ldquo lottery rdquo read with the Explanation. By making the purchase of product, the assessee secures a chance to win a prize. I am, therefore, of the considered view that the decision of the Revenue authorities to hold that the Matiz car received by the assessee on the basis of scratch card on purchase of refrigerator falls within the definition of lottery under section 2(24)(ix) read with the Explanation to the said section. The contention advanced on behalf of the assessee that the said car was received as a gift and not by way of lottery is accordingly rejected. In the result, the appeal of the assessee is dismissed. The order pronounces on April 25, 2006.
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2006 (4) TMI 459 - ITAT MUMBAI
Set off of speculation loss on share transaction - delivery of share has not been taken against the profit on non-speculative shares trading (delivery basis) - HELD THAT:- The provisions of the Explanation to section 73 have to be contrasted with the provision of section 43(5), which defines ‘speculative transaction’ to mean a transaction in which a contract for the purchase or sale of any commodity, including any stocks and shares, is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips. The Explanation to section 73 treats any purchase and/or sale of shares by certain companies to be speculative for the purpose of section 73 only. For the purpose of setting off and carrying forward of loss, the buying and selling of shares by certain companies are regarded by the statute as speculation business, even though the transaction of purchase and sale was followed up by delivery of scrips and as such cannot be treated as ‘speculative transaction’ as defined in section 43(5).
The phrase in the Explanation to section 73 ‘to the extent to which the business consisted of purchase and sale of such shares’ also does not indicate that the Legislature had several other actual and existing non-speculative activities of business in mind. It merely indicates that the business activity which consists of purchase and sale of shares will be treated as speculation business. If the entire business activity of a company consists of purchase and sale of shares of other companies, then the entire business will be treated as speculation business. But, if, apart from purchase and sale of shares, the company has other business activities, then those other activities will not be treated as speculation business.
Similar issue has been decided by the Calcutta High Court in the case of COMMISSIONER OF INCOME-TAX VERSUS ARVIND INVESTMENTS LIMITED [1990 (3) TMI 5 - CALCUTTA HIGH COURT]. It has been held, in this case, that the Explanation to section 73 shall apply even to the case of a company whose only source of income is trading in shares - the Calcutta High Court decision is squarely applicable to the facts of the present case. Judicial propriety demands that a judgment rendered by the High Court must be followed in preference to the order of the Tribunal.
The order of the learned Commissioner of Income-tax (Appeals) on this issue is confirmed - appeal of Revenue dismissed.
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2006 (4) TMI 458 - ITAT MUMBAI
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... ... ..... ad not been completed, and the time-limit to complete the assessment under section 143(3) of the Income-tax Act had not expired till then. The procedure provided for assessment under section 143 is complete in itself and once a valid notice of hearing has been issued under section 143(2) of the Income-tax Act, the only recourse available to the Assessing Officer was to complete the assessment under section 143(3) of the Income-tax Act. The issue of notice under section 148 of the Act, when the assessment proceedings were pending under section 143(3) of the Act was illegal and invalid. The reassessment proceedings completed in the case are invalid ab initio and are directed to be cancelled. The additional ground of appeal raised by the assessee is allowed. As the additional ground of appeal has been allowed and the assessment proceedings have been directed to be cancelled, we are not going into the merits of the case. In the result, the appeal filed by the assessee is allowed.
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2006 (4) TMI 457 - DELHI HIGH COURT
Whether liability arising out of a warranty is an allowable deduction - Held, yes ... ... ... ... ..... its actual quantification and discharge is deferred to a future date. Once an assesee is maintaining his accounts on the mercantile system, a liability accrued, though to be discharged at a future date would be a proper deduction while working out the profits and gains of his business, regard being had to be accepted principles of commercial practice and accountancy. (p. 343) 3. In the instant case also, the assessee has on the basis of the past experience and the extent of claims made against it, set apart different amounts for different assessment years. It is not the case of the revenue that the amounts set apart were unreasonably disproportionate to the amounts which were claimed by the customers on the basis of the warranties in the past. In that view, the Tribunal was justified in holding that the amounts set apart by the assessee was an allowable deduction. No substantial question of law arises for our consideration in this appeal, which fails and is hereby dismissed.
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2006 (4) TMI 456 - SUPREME COURT
A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act.
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2006 (4) TMI 455 - SUPREME COURT
Disciplinary Proceedings-Conducting of on the issues on which no charges framed Propriety of-Employee allegedly failed and/or neglected to maintain a register known as ACE-8 Register-Disciplinary proceedings initiated against him, five years after he handed over charge, remained pending for seven years-The Enquiry Officer proceeded as if in the departmental proceedings the employee was charged with misappropriation of property-Employee was removed from service-The appellate authority, while dismissing the appeal filed by the employee, went into the question of maintenance of muster roll and the diaries maintained on a day-to-day basis although that was not the subject matter of the charge-The High Court also proceeded on the basis that the non-maintenance of diary amounted to misutilization of copper wire-Held: It is true that the jurisdiction of the court in judicial review is limited-Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge-A serious charge could not have been enquired into without framing appropriate charges-Initiation of the disciplinary proceedings as also continuance thereof after a long time evidently prejudiced the delinquent officer-Hence, the orders of the disciplinary authority as also the appellate authority cannot be sustained-Dismissal set aside-Judicial Review.
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2006 (4) TMI 454 - CESTAT, NEW DELHI
Confiscation - Absolute confiscation ... ... ... ... ..... e Calcutta High Court in the case of Mercantile Express Co. Ltd. v. Assistant Collector reported in 1978 (2) E.L.T. 552 and after noting that in the case of other importers the same goods were confiscated and the same were allowed to be released on payment of fine. In the present case also the same goods were allowed to be redeemed on payment of fine vide order dated 16th January, 2001. 16. emsp In view of the above discussion. I agree with the view taken by the Hon rsquo ble Member (Judicial) and the matter is to be remanded to the Commissioner of Customs for fixing the quantum of redemption fine. Sd/- S.S. Kang Vice-President (Dictated and pronounced in open Court on 26th May, 2006) FINAL ORDER 17. emsp In view of the majority opinion, the impugned order is set aside and the matter remanded to Commissioner for fixing the redemption fine in respect of the confiscated goods. The appeal is disposed of in above manner. Sd/- Sd/- Archana Wadhwa Member (J) C.N.B. Nair Member (T)
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2006 (4) TMI 453 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Valuation - Abatement towards quantity discounts - Settlement - Immunity from payment of interest
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2006 (4) TMI 452 - CESTAT, NEW DELHI
Cenvat/Modvat - Boomer tattoo - Tattoos supplied with bubble gum - Words and Phrases - Appeal to Appellate Tribunal
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2006 (4) TMI 451 - CESTAT, AHMEDABAD
Cenvat/Modvat - Input - Fuel for electricity generation - Input used in exempted goods - Excisability/Exempted goods - Electricity - Precedent - High Court and decision of CESTAT Larger Bench available
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2006 (4) TMI 450 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement Commission - Admission ... ... ... ... ..... ,00,000/- and this payment is acknowledged in the Show Cause Notice itself proposes the adjustment of this amount in the duty demanded. Thus, the applicant is still liable to pay an amount of Rs. 39,58,603.76 out of the admitted amount of Rs. 89,58,603.76. The applicant has requested for facility to pay the amount is 12 monthly instalments. However, they have not produced any evidence such as balance sheet to prove their inability to pay immediately. Hence, they are directed to pay the balance amount shown above within 30 days of receipt of this order. 16. emsp As a result, this application is allowed to be proceeded with in terms of sub-sec. (l) of Sec. 32F of the Central Excise Act, 1944. With the issue of this Order, in terms of sub-sec. (2) of Sec. 32I of the Central Excise Act, 1944, this Bench of the commission shall have exclusive jurisdiction to exercise the powers and perform the functions of any Central Excise Officer under this Act so far as this case is concerned.
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2006 (4) TMI 449 - CESTAT, MUMBAI
Appeal to Appellate Tribunal - Maintainability of ... ... ... ... ..... self, it is decided to consider the said objection and dispose of the appeal itself along with stay applications. 4. emsp The committee of Commissioners of Central Excise, Pune-III and Belgaum have reviewed orders passed by the Commissioner (A), Pune-III and finding that the orders are not legal and proper, by virtue of the powers conferred by sub-section (2) of Section 35B of the Central Excise Act, 1944 being authorized Joint Commissioner (Tribunal), Central Excise, Pune-III to file an appeal. But the present appeal has been filed by the Commissioner of Central Excise, Pune-III, who is not authorized person. Obviously the appeals are defective in very nature and can not be maintained as the same order not accordance with the authorization. Therefore, in my considered view that the appeals are not maintainable as they are filed by the officer who is not authorized. In the result, both appeals are dismissed and applications also dismissed of, accordingly. Pronounced in Court
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2006 (4) TMI 448 - CESTAT, MUMBAI
Appeal - Dismissal of appeal for non-compliance of pre-deposit order ... ... ... ... ..... goods were absolutely confiscated and were under no more control of the appellants and in such circumstances pre-deposit should not be insisted upon for hearing the appeals. 4. emsp I have gone through the said provisions and there is a clear bar about the pre-deposit in such appeals. Therefore, I am of the view that the Commissioner (Appeals) has erred in demanding pre-deposit amount and dismissing the appeal for non-compliance with the same. At this stage itself, therefore, it is felt expedient to dispose of the appeals, as agreed by both sides, as the appeals were dismissed only on the sole ground of pre-deposit issue, without touching the merits of the appeals. It is therefore desirable to remand the matter back to the Commissioner (Appeals) for disposal of the appeals on merits, after hearing both sides, without insisting on any pre-deposit. 5. emsp Appeals allowed as remand in above terms. 6. emsp Stay applications also are disposed of accordingly. (Pronounced in Court)
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2006 (4) TMI 447 - ITAT BANGALORE
Disallowance of custody charges paid to NSDL - Deductions - Donation to certain funds, charitable institutions, etc.
Disallowance of custody charges paid to NSDL - HELD THAT:- The expenditure has been incurred in the normal course of business. The dematerialisation had helped significantly in reducing the administrative costs. Even if certain expenses results into some benefit to the shareholders, the expenditure incurred in respect of or in connection with the shareholders, is allowable as revenue expenditure as held in the case of CIT v. Tirrihannah Co. Ltd. [1991 (4) TMI 45 - CALCUTTA HIGH COURT] and in Karjan Co-operative Cotton Sales Ginning & Pressing Society v. CIT [1992 (1) TMI 39 - GUJARAT HIGH COURT]. The expenditure can even be considered in the nature of part of listing requirements.
The CBDT by its circular letter F. No. 10/67/65-TT(A-I) opined that expenses incurred by company on getting its shares listed in stock exchange should be considered as laid out wholly and exclusively for the purpose of business and therefore admissible as business expenditure u/s 37(1). The guidelines of SEBI mandate that the shares to be traded in stock exchange can only be in dematerialized form. Thus, the charges paid to NSDL having not brought into existence any capital asset and is for the purpose of efficient functioning of the business are to be held as business revenue expenses and allowable as such.
Deduction u/s 80G in respect of donations made - HELD THAT:- In the present case, donation is stated to have been paid out of "Keonics Unit", the profit of which is exempt u/s 10A of the Act. While computing the profit of Keonics Unit, the donation paid is added back as the same is not allowed to be deducted while computing profit u/s 10A of the Act. Thus, the disallowance in computing the income of Keonics Unit is as per the statutory provision of Act the donation being not considered as expenditure incurred wholly and exclusively for the purpose of business. Thus, it cannot be said that the donation paid has been allowed as "deduction" under the Act. The donation cannot even be considered as "expenditure incurred" for the purpose of earning income, which is exempt under the Act. There is no stipulation in section 80G to the extent that the donation has to be paid only out of taxable income of the year. The appellant has not claimed a double deduction.
The provisions of section 14A would not be applicable to a deduction u/s 80G as—(a) section 14A is limited in its operation to Chapter IV only whereas deduction under section 80G falls under Chapter VI-A; (b) donation made does not constitute expenditure. Section 14A applies to expenditure only. Section 80G would be available even when the said donations are made out of capital or gilts received or exempted income or income of earlier years. Thus, the donation qualifies for deduction u/s 80G. The Assessing Officer is directed to allow the same as per the provisions of section 80G.
Disallowance of maintenance expenditure incurred on leased buildings - We have considered the relevant facts and the arguments advanced. From the details of expenditure given, we find that it amounts to less than Rs. 20 per sq. ft. of the premises taken on lease. At the end of the lease period, the assessee cannot recoup anything from the expenditure incurred. Explanation to section 32 will apply provided the expenditure is capital in nature. Thus, merely because the sum is substantial, though not so substantial, looking to the operation of the assessee, the amount cannot be considered as capital expenditure. Even the grounds of appeal mentions that the expenditure incurred are ‘maintenance expenditure’. Such maintenance expenditure does not partake the characteristics of acquisition of any capital asset. The expenditure is incurred after the building had been occupied and which requires normal maintenance expenditure, which cannot be classified as capital expenditure. We accordingly do not find any merit in this ground. The deletion of disallowance is accordingly upheld.
In the result, the appeal of assessee is partly allowed and that of Revenue is dismissed.
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