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Showing 61 to 80 of 489 Records
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2006 (10) TMI 460
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... ... ..... ntested on the ground that there is no provision in the relevant sections to add these ingredients in the Commission received by the appellants who are doing the service of CandF Agents. 2. We have heard both sides in the matter. Prima facie, the appellants have made out a case in their favour. The Service Tax, in terms of the relevant proviso to section 67, is only on the Commission and not on the other elements received by the principals. Prima facie, the appellants have a good case on hand. Hence, waiver is granted in the matter. There shall be no recovery till the disposal of the appeal. Appeal to come up in its turn. Stay application allowed.
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2006 (10) TMI 459
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... ... ..... added in the value of the tax to be charged for payment. He also refers to Trade Notice No.59/99 dated 4.10.1999 and DGST clarification issued in October 2003 and further relies on the Board's letter MF (DR) F.No. 341/11/98-TRU dated 23.08.1999 (reported in 1999 (34) RLT M39). He also refers to Rule 6 (8) of Service Tax Rules, 1994 which interpretation would clearly show that these elements are not required to be added in the Service Tax. 3. The learned JDR defended the order and prayed for putting the appellants on terms. 4. On a prima facie consideration, we find that the Chennai bench has also expressed its prima facie view in assessee's favour. We also take into consideration the Trade Notice, DGST clarification and the other materials relied on by the learned Counsel for granting full waiver of pre-deposit in this matter. The Revenue shall not proceed to recover any amount till the disposal of the appeal. Stay application allowed. Appeal to come up in its turn.
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2006 (10) TMI 458
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... ... ..... ribunal was justified in law in holding that income of ₹ 8,27,39,992/- from procurement of wheat as an agent of the Government is not exempt u/s 10(29) of the Income-tax Act.” We find that identical question has been gone into by this Court in our judgment rendered on 06.09.2006 in Haryana Warehousing Corporation v. Commissioner of Income Tax I.T.R. No.120 of 1998. Accordingly, the question referred is answered in favour of the revenue and against the assessee.
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2006 (10) TMI 457
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... ... ..... confirmed one item, addition was limited to balance ₹ 1 lakh, which was the entry disowned by the creditor. Appellant’s case is that creditor is deliberately disowning the transaction. We are unable to accept this contention because once creditor disowns the transaction, it is for the appellant to prove the same, which the appellant failed. In the circumstance, there is no scope for interference. Appeal is therefore dismissed.
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2006 (10) TMI 456
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... ... ..... s not misconducted himself. The award was, therefore, made rule of the High Court, rightly so in our opinion. In our opinion, having considered the totality of the circumstances, we feel that it would be just and proper to award interest 9 p.a. throughout instead of 12 as awarded by the arbitrator for the period in question. The amount already received by the claimant will be adjusted towards the entire claim and the balance amount together with interest at 9 p.a. shall be paid by the FCI within 2 months from the date of this order failing which the said balance amount shall carry interest 12 from the date of its due till realization. In view of this order in this judgment, the bank guarantee furnished by the respondent-contractor shall stand discharged. The Supreme Court Registry is directed to do the needful immediately. The impugned judgment of the High Court is modified accordingly. The appeals are thus partly allowed as above leaving the parties to bear their own costs.
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2006 (10) TMI 455
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... ... ..... in litigation would make him liable to not only pay the principal amount of demand but also interest as per the rules. There was no concession given by the revenue nor could any such concession be given contrary to the Rules that they would not claim interest on delayed payment of demand. In our considered view therefore judgment passed by the learned Single Judge on all the three counts is not sustainable in law. 18. In view of what has been discussed above, this special appeal deserves to be allowed and is hereby allowed. The judgment passed by the learned Single Judge dated 4th October, 1995 is set aside and consequently the writ petition filed by the petitioner is allowed. The order of the Collector, Central Excise dated 9.6.1983 and the order of the Tribunal dated 28.12.1983 and consequential notice of Superintendent, Central Excise, Range, Jodhpur dated 24.2.1983 are quashed and set aside. In the facts of the case, however, we leave the parties to bear their own cost.
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2006 (10) TMI 454
Payments to associate concerns - reimbursement of day-to-day expenses - cash payments exceeding ₹ 10,000 - Interpretation of the r. 6DD(j) - whether cash payments made by the assessee to the associate concerns would attract s. 40A(3)? - HELD THAT:- In our considered opinion, even though s. 40A(3) of the Act is not absolute, payments made in cash cannot automatically be allowed merely for the reason that the payments were made to associate concerns and such reason that weighed the CIT(A) is not only illogical, but also outside the scope of s. 40A(3) of the Act. If such reason is accepted, the transactions which frustrate s. 40A(3) would pave way for evading tax which is contrary to the object of s. 40A(3). The cumulative effect of Circular of CBDT dt. 31st May, 1977, r. 6DD(j) and s. 40A(3) is that the assessee should satisfy that there were exceptional and unavoidable circumstances of transactions in which payments were made in cash and that payment by way of crossed cheque or crossed bank draft was not practicable or the same would have caused genuine difficulty to the payee having regard to the nature of the transaction or there was necessity for expeditious settlement. In addition to that, the assessee should also furnish evidence to the satisfaction of the AO as to the genuineness of payments as well as the identity of payee.
We fail to see that the assessee has satisfactorily explained the exceptional and unavoidable circumstances warranting the payment by cash; the payments by way of crossed cheque or crossed bank draft was not practicable; such payments would have caused genuine difficulties to the payee; and there was necessity for expeditious settlement. Even though it is found that the assessee made cash payments for day-to-day affairs of associate concerns, the reason given by the CIT(A) for deleting 20 per cent disallowance that the payments were made to associate concerns and hence, they were allowable cannot be a justifiable reason as it is outside the scope of s. 40A(3) of the Act. We are satisfied that the deletion of disallowance of 20 per cent the total amount frustrates s. 40A(3) of the Act.
In the result, we answer the questions of law referred to above in favour of the Revenue and against the assessee. The appeal stands allowed. No costs.
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2006 (10) TMI 453
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... ... ..... eement. It may be noted that the complainant before filing the complaint had given the legal notice dated 22.5.2000 and reply to the said notice was given pointing out the aforesaid facts but in the complaint, the complainant has not at all mentioned about the said reply nor filed the same as a document along with the complaint and has, therefore, suppressed these facts as well. 7. In Balaji Sea Foods Exports (India) Ltd. v. Mac Industries Ltd. (Madras) II (1999) CCR 424 1999 (1) RCR (Criminal) 683, the Madras High Court in identical circumstances dismissed the complaint as not maintainable which was based on undated cheque given at the time of execution of the agreement holding that there was no debt or liability when the cheque was hancd over to the drawee and. therefore, the complaint could not be maintainable. This petition is accordingly succeeds. Summoning order is quashed and the complaint filed by the respondent No. 2 is dismissed. 8. Trial Court record be sent back.
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2006 (10) TMI 452
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... ... ..... Bang); (b) Raja Rajeshwari Intl. Polymers (P) Ltd. v. CCE, Bangalore . 3. The learned JDR reiterates the findings given by the lower authorities. 4. On a careful consideration, we notice from the facts of the case that the appellants have not physically dealt with the goods or they have sold. Neither they have taken receipts nor responsible for despatch of such goods. They were only acting as an Indenting Agent. In order words, they were called as Del Credere. The lower authorities relied on the judgment of M/s. Prabhat Zarda Factory (supra). As there was difference of opinion between several judges, the matter was referred to Larger Bench. The Larger Bench in an identical case of L & T Ltd. (supra) held that such booking of order received by Indenting Agent cannot be brought within the ambit of C & F Agent Services. In view of this Larger Bench judgment, the confirmation of demands is required to be set aside by allowing the appeal with consequential relief, if any.
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2006 (10) TMI 450
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... ... ..... e specifications thereunder. Prima facie, it appears that the appellant was a tour operator and therefore the ratio of the decision of the Hon’ble Madras High Court in Secretary, Federation of Bus Operators’ Association of Tamil Nadu v. Union of India - 2006 (2) S.T.R. 411 (Mad.) 2001 (134) E.L.T. 618 (Mad.) has been applied by the authorities below. There is, therefore, no case made out for total waiver of pre-deposit of service tax. 2. We, therefore, direct that there shall be interim stay of the impugned order on the applicants’ depositing 50 of the service tax payable under the impugned order within eight weeks from today, failing which the appeal shall stand dismissed. On the amount being so deposited, there shall be waiver of pre-deposit of the remaining amount of service tax and penalty. This application stands disposed of accordingly. Post the matter for reporting compliance on 6-12-2006. (Dictated and pronounced in the open Court on 3-10-2006)
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2006 (10) TMI 449
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... ... ..... mently contended before us on behalf of the Revenue that these decisions do not prohibit initiation of penalty proceedings and that for that purpose the declaration that the assessed is an "assessed-in-default" is relevant. However, this does not appear to have been raised before the Tribunal. It was for this purpose that we have extracted the grounds raised before the Tribunal. The specific question of whether penalty proceedings can nevertheless continue despite the payment of tax and interest thereon by the deductee was not separately and distinctly raised or contended before the Tribunal. We are, therefore, not called upon to consider this question in the present proceedings under Section 260A of the IT Act. 4. In the facts and circumstances of this case, no substantial question of law arises for consideration since the question which has been raised before the authorities stands covered by the aforementioned decisions. 5. The appeals are dismissed accordingly.
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2006 (10) TMI 448
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... ... ..... (Appeals) 2006 4 STT 145 (Bang. - CESTAT). 2. The learned JDR seeks time to get a report from the Commissioner on the Tribunal ruling relied on by the learned Counsel and prays for listing the appeal for out of turn hearing as revenue involved in the matter is high. 3. On a careful consideration of the matter, we notice that the issue is prima facie covered by this Bench ruling rendered in the case of Coen Company (supra). Hence the stay application is allowed by granting waiver of pre-deposit of the amount and staying its recovery till the disposal of the appeal. As the issue is covered, the matter to come up for final hearing on 14-12-2006. Meanwhile, the leaned DR to call for report from the Commissioner in the matter.
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2006 (10) TMI 447
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... ... ..... ference. We have noticed that the assessee in its letter dated 0020/18-3-2005 to the Assessing Officer (page 44 of the Paper Book) specifically stated that the intending transferor, Smt. Lata R. Gurnaney is completely unrelated with the assessee or with any of its directors. The Assessing Officer has not contested the assessee’s averment. In that situation the Assessing Officer’s conclusion that the whole gamut of transactions was a device for lowering profit by bogus interest is founded on no material. There is no material to substantiate such suspicion of a collusion amongst multiple parties involved in the whole real-time developments. Suspicion by itself cannot take the place of evidence. No such conclusion is viable on objective appraisal of the surrounding circumstances. Therefore, we uphold the order of the CIT(A) in deleting the addition of ₹ 25 lakhs by way of disallowance of the interest. 15. In the result, the revenue’s appeal is dismissed.
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2006 (10) TMI 446
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... ... ..... connection with the manufacture and sale of concentrate. 4. We also find that the Commissioner’s reference and reliance on the Hon’ble Supreme Court’s decision in the case of Parle International Ltd. ( supra), is not proper inasmuch as the issue in that case was as to whether the advertisement expenses incurred by the advertisers on behalf of dealers is required to be added in the assessable value of concentrate or not. Admittedly, the advertisement expenses incurred by Parle International Ltd., were being added in the value of the concentrate and there was no dispute about the same. 5. In view of our foregoing discussion, we hold that the appellants have been able to make out a prima facie case in his favour so as to allow the stay petition unconditionally. We order accordingly. 6. We are also informed that the issue has a recurring effect and there are number of notices in the pipeline, we accordingly fix the appeal also for final disposal on 13-11-2006.
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2006 (10) TMI 445
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... ... ..... sub-section (5) of Section 17 of the Act. The plaintiffs are clearly assailing the validity of the acquisition proceedings. It is not their case that the plaint scheduled property is outside the purview of the land regarding which the notification under Section 17 had been issued. The ground for assailing the notification, namely, that notice under sub-section (5) of Section 17 of the Act was not served upon the plaintiffs and its effect could only be examined in a writ petition filed under Article 226 of the Constitution before the High Court and not by the civil court. The judgments and decrees passed by the High Court are, therefore, clearly illegal and have to be set aside. 15. In the result the appeals succeed and are hereby allowed. The judgments and decrees passed by the High Court, which are subject- matter of challenge in the present appeals, are set aside and the decrees passed by the trial court on 29.3.2001 dismissing the suits are affirmed. No order as to costs.
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2006 (10) TMI 444
Contempt petition - cancellation of the auction of commercial plots - M/s. G.S. Investments (respondent No. 1) made the highest bid - Government issued a direction summoning the records and staying all further proceeding relating to auction of the plots - HELD THAT:- In view of this condition in auction notice it is obvious that a person who had made the highest bid in the auction did not acquire any right to have the auction concluded in his favour until the Chairman of the Housing Board had passed an order to that effect. Of course the Chairman of the Housing Board could not exercise his power in an arbitrary manner but so long as an order regarding final acceptance of the bid had not been passed by the Chairman, the highest bidder acquired no vested right to have the auction concluded in his favour and the auction proceedings could always be cancelled.
This being the settled legal position, the respondent acquired no right to claim that the auction be concluded in its favour and the High Court clearly erred in entertaining the writ petition and in not only issuing a direction for consideration of the representation but also issuing a further direction to the appellant to issue a demand note of the balance amount. The direction relating to issuance of the demand note for balance amount virtually amounted to confirmation of the auction in favour of the respondent which was not the function of the High Court.
In the present case there was enough material before the State Government to show that in the past plots in the area had fetched a price of ₹ 10,000/- per square meter and the highest bid made by the respondent in the present case was nearly half, i.e., ₹ 5750/- per square meter, which clearly indicated that the auction had not been conducted in a fair manner. If in such a case the State Government took a decision to disapprove the auction held and issued a direction for holding of a fresh auction, obviously the said decision was taken in larger public interest. In these circumstances there was absolutely no occasion for the High Court to entertain the writ petition and issue any direction in favour of the contesting respondent. The orders passed by the learned single Judge and the order passed by the Division Bench of the High Court are clearly erroneous in law and are liable to be set aside.
It appears that the respondent initiated contempt proceedings against the appellants in which a learned single Judge passed an order observing that the order passed by the learned single Judge had not been complied with in letter and spirit and a further direction was issued to comply with the said order within two weeks. The material placed before us shows that the appellant No. 1 had issued a notice to the respondent and after giving a personal hearing on the next day, had rejected its representation by the order. In these circumstances there was no occasion for initiating any contempt proceedings against the appellants.
In the result the appeal is allowed with costs. The order passed by the learned single Judge and the order passed by the Division Bench of the High Court are set aside and the writ petition filed by the respondent is dismissed. The order passed by the learned single Judge in contempt proceedings is also set aside and the contempt petition filed by the respondent is dismissed. The money deposited by the respondent No. 1 shall be refunded to it forthwith.
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2006 (10) TMI 443
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... ... ..... ere used not in the same from as iron & steel but were used for the purpose of construction of the bridge. After noticing this aspect of the matter, the Division Bench would hold that liability of the dealer would squarely come under Entry No.6 of the sixth schedule of the Act. The said order is squally applicable to the facts of the case. The Tribunal in our view, is not right in answering the question against the State in the light of the binding order of the Division Bench in STRP No.34/2003 dated 12.08.2004. In the circumstances, despite a strong plea made by Smt. Vani H, learned Counsel for the assessee, we are not persuaded to take different view than that of the finding given by a division Bench of this High court in STRP No.34/2003. 9. Respectfully following the order passed in STRP No.34/2003 dated 12.08.2004, this revision petition stands allowed. Questions of law are answered in favour of the government and against the assessee. Ordered accordingly. No. costs.
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2006 (10) TMI 442
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... ... ..... granted on the enhanced compensation but no law in absolute terms was laid down therefor. The learned Single Judge has awarded interest at the rate of 12 per annum. The rate of interest now granted is 9 per annum keeping in view the drastic fall in the bank rate. We, therefore, do not intend to interfere with the said direction of the High Court. Reliance placed by Mr. Malik on Lata Wadhwa (supra) is not apposite. Therein multiplier method for determining compensation was resorted to as death occurred and injuries suffered by many persons in a devastating fire resulted from negligence on the part of the Company. See Krishna Gupta & Ors. v. Madan Lal & Ors. 96 (2002) DLT 829 Furthermore, as noticed hereinbefore, both the learned Single Judge as also the Division Bench was more than generous in awarding compensation to Appellant under different heads. We, therefore, do not intend to interfere with the impugned judgments. The appeals are dismissed accordingly. No costs.
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2006 (10) TMI 441
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... ... ..... ld by the Hon'ble Supreme Court in the case of Mc Dowel & Co.Ltd. V/s. Commercial Tax Officer (1985) 154 ITR 48 (SC)? C Whether on the facts and in the circumstances of the case the Appellate Tribunal was right in accepting assessee's deliberate and unjustified claim of not paying interest to partners and ignoring their obligation to pay interest to the partners which was authorized as per the partnership deed and was due within the parameters of the provisions of section 40(b)(iv) of the I.T.Act, 1961 particularly in background of the fact that the assessee had claimed deduction u/s.80IB of the I.T. Act?” The learned Counsel for the revenue fairly admits that similar issue was raised in case of Commissioner of Income Tax v/s. Industrial Workwear being Tax Appeal No. 1177 of 2005 and the said Appeal was not admitted. Following the view taken in above Tax Appeal No.1177 of 2005, no case is made out for admission of these Appeals. The Appeals stand dismissed.
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2006 (10) TMI 440
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... ... ..... their case which is clearly impermissible in law. The writ petitions were liable to be dismissed on this count as well. 22. Mr. Soli J. Sorabjee, learned senior counsel for the appellant has submitted that absence of notice to even one member may vitiate the proceedings of the meeting which was convened on 19.12.2005 and in the present case some members were not served with the statutory notice. It is not necessary for us to examine this question as we have held above that the writ petitions filed by the appellants herein were not maintainable having regard to the controversy raised which was purely factual in nature and could more appropriately be decided in an election petition which remedy was provided by the Delhi Sikh Gurdwaras Act and also on the ground that the writ petition was not competent as necessary parties were not impleaded as respondents to the same. 23. For the reasons discussed above, we find no merit in these appeals, which are hereby dismissed with costs.
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