|
Advanced Search Options
Case Laws
Showing 441 to 460 of 16027 Records
-
2014 (12) TMI 996
Denial of rebate claim - Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-Central Excise(NT) dated 06.09.2004 - area based exemption under Notification 56/2002 & 57/2002-CE both dated 14.11.2002 - availment of cenvat credit on the basis of bogus invoices issued by the J&K based units and have utilized the same towards payment of duty for final products under the rebate claim - Held that:- Government finds that. para 36 of copy of order-in-original No.29/Adds. Comm-IM-11/2011 dated 31.3.2011 mentions show cause, notice bearing C.NO.N-CE(9)CP, Ansar/M-IF/09/06 dated 12.9.2007 .,which: pertains to demand of fraudulently availed credit from November 2005 to 31.3.2006. The show cause notice C.No.W-CE(9)CP/Mentha Enquiry/08/0&/Pt.99Af1f.19 dated 15.1.2010 pertains to period April 2006'to March 2009. Commissioner (Appeals) has rejected the appeals of the applicant by holding the said order-in-original dated 31.3.2011, SCN dated 15.1.2010 has been adjudicated and the appeal filed by the applicant against order-in-original dated 31.3.2011 has been rejected by the Commissioner (Appeals) and as such, the order-in-original of Additional Commissioner confirming the demand of fraudulent availment of cenvat credit has been upheld. Now, since there has been substantial change in facts and circumstances of the case due to aforesaid factual infirmities, the orders of Commissioner (Appeals) the case due to aforesaid factual infirmities, the orders of Commissioner (Appeals) based on such factual infirmities become infructuous and hence, liable to be set aside on this count only, without going into further merits of these cases. Under such circumstances, the interest of justice demands that the cases may be remanded back to appellate authority to decide the same afresh on the basis of correct factual position. - Matter remanded back - Decided in favour of assessee.
-
2014 (12) TMI 995
Denial of rebate claim - original authority sanctioned the rebate claims - Orders were reviewed by the Jurisdictional Commissioner, on the ground that the assessable value is higher than FOB value - appellate authority accepted the appeals of the department that extra amount paid by the assessee on freight and insurance (if any) being duty, has to be treated as extra payment - Place of removal - Held that:- place of removal may be factory / warehouse, a depot, premise of a consignment agent or any other place of removal from where the excisable goods are-to, be sold for delivery at place of removal The meaning of word "any other place" read with definition of "Sale", cannot be construed to have meaning of any place outside geographical limits of India. The reason of such conclusion is that as per Section 1 of Central Excise Act, 1944, the Act is applicable within the territorial jurisdiction of whole of India and the said transaction value deals with value of excisable goods produced/manufactured within this country. Government observes that once the place of removal is decided within the geographical limit of the country, it cannot be beyond the port of loading of the export goods. Under such circumstances, the place of removal is the port of export where sale takes place.
`Place of removal' is critical to decide the transaction value. In these cases, there is no categorical findings by lower authorities to mention 'place-of removal'. Hence, Government finds it necessary that 'place of removal' may be decided by original authority before reaching at conclusions on transaction value. As such, the cases need to be remanded back to decide afresh after deciding `place of removal' - Matter remanded back - Decided in favour of assessee.
-
2014 (12) TMI 994
Denial of rebate claim - non submission of impugned excise invoices - Held that:- Applicant has contended that they have submitted original copies of impugned excise invoices along with rebate claim. During personal hearing also they have submitted copies of acknowledgement of rebate sanctioning office regarding receipt of such rebate claim. On perusal of such acknowledgement, Government finds that at Sr. (2) of such claim, it is clearly mentioned that the applicant submitted impugned excise invoices along with other relevant documents. However, subsequently, deficiency memo cum call for personal hearing cum show cause notice was issued for non submission of said central excise invoices. Government notes that when the applicant submitted proof of submission of impugned excise invoices in form of acknowledgement of rebate sanctioning office, it can not be categorically held against applicant that they have not submitted the same and rebate claims cannot be held inadmissible on this count only. As such, proof of evidence weigh in favour of the applicant and rebate claims can't be held inadmissible alleging non- submission of excise invoices.
Even if copy of excise invoices are not submitted, the export of duty paid goods may be ascertained on the basis of other collateral documents. In this case there is no dispute of payment of duty per se, which is also evident from copies of impugned AREs-1 where in such duty particulars are clearly given. Further there is no dispute that such duty paid goods have not actually been exported. Under such circumstances, when substantial condition of export of duty paid goods stands established, the rebate claims cant be held inadmissible considering a situation that excise invoices are not submitted - as regards rebate specifically, it is now a established law that the procedural infraction of Notifications, circulars, etc. are to be condoned if exports have really taken place, and the law is settled now that substantive benefit cannot be denied for procedural lapses. Procedure has been prescribed to facilitate verification of substantive requirement. The core aspect or fundamental requirement for rebate is manufacture and subsequent export. As long as this requirement is met other procedural deviations can be condoned. - Decided in favour of assessee.
-
2014 (12) TMI 993
Valuation of goods - Addition of 4% notional profit to the processing charges - Addition on whether the fabrics cleared by the appellant vide 22 invoices mentioned in the show cause notice are Velvet fabrics or not - Commissioner has dropped the demand of excise duty on the 4% notional profit on the ground that the processing charges collected includes the profit elements and therefore, there is no need to make further addition towards profit - Held that:- The claim of the appellant is that they are man-made fabrics. The basis of the Revenue’s claim is that samples drawn from Lot No. 12831 and 14954 were opined to be velvet fabrics by SASMIRA. Samples drawn from the same lot No. by the appellant and subjected to test by SASMIRA vide test report dated 10-8-1998 show them to be other than velvet fabrics. These two lot nos. pertained to invoice No. 5854, dated 16-2-1998 whereas in the show cause notice, the invoices referred to thereunder pertains to the period August, 1997 to January, 1998 and the said invoice does not figure in the show cause notice. In these circumstances, the Revenue has not established its case that the fabrics processed and cleared during August, 1997 to January, 1998 were Velvet fabrics falling under Chapter 58. As regards Revenue’s appeal, since the job-charges already includes profit of the job-worker, the question of adding notional profit of 4% does not arise.
Impugned demand is not sustainable in law and consequently the demand for interest under Section 11AB and equivalent amount of penalty imposed under Section 11AC and penalties of ₹ 25,000/- and ₹ 10,000/- imposed respectively on Shri D.G. Agarwal and Shri S.B. Yadav, Excise official of the appellant firm do not survive - Decided in favour of assessee.
-
2014 (12) TMI 992
Exemption Notification No. 7/2003-C.E., dated 1-3-2003 - Manufacture of Buckram - rate of duty - 8% or 16% - Held that:- The impugned order passed by the Commissioner (Appeals) is based on a verification report submitted by the Jurisdictional Central Excise Superintendent who has reported that since November, 2002, the respondent had stopped the manufacture of starch based stiffened fabrics called Buckram and had switched over to manufacture of interlining fabric by LDPE powder coating method. Therefore, just because during June, 2003, the respondent had described the goods in the ER-1 return as Buckram by mistake, the same cannot be treated as Buckram in view of the report of the Range Superintendent affirming that during that period the respondent were manufacturing LDPE powder coated interlining fabrics. In the grounds of appeal, the Department has not disputed the report dated 11-8-2005 of the Range Superintendent explaining the process of manufacture and reporting that since November, 2002, the respondent have discontinued the manufacture of starch based stiffened fabrics called Buckram and have switched over to manufacture of LDPE powder coated fabrics to be used as interlining cloths. In view of this, we do not find any merits in the Revenue’s appeal. - Decided against Revenue.
-
2014 (12) TMI 991
Clandestine manufacture and clearance of their final product - Held that:- There is no other evidence to show clandestine removal of the goods. It is a well settled that the charges of clandestine removal cannot be upheld on the basis of such theoretical productions calculated on the basis of chemical formula. Manufacturing of formulates is not mechanical process. The same is chemical process where oxygen react with methanol under presence of silver catalyst and resultantly formaldehyde is produced. There are various factors such as purity of water & air, voltage fluctuation, impurity in catalyst, etc. which directly or indirectly affect on and cause variation in the production of formaldehyde. The revenue has not conducted any physical experiment to arrive at the actual production. Otherwise also I find that in the absence of the corroborative evidence, the confirmation of demand stands rightly set aside by Commissioner (Appeals) - Decided against Revenue.
-
2014 (12) TMI 990
Manufacture of Curved Steel Roof Panels - fabrication at site - Exemption under Notification No. 3/2005-C.E. - Classification of goods - Classification under Heading No. 7308 or under Heading No. 7210 - Held that:- Commissioner (Appeals)’s order classifying the goods under Heading No. 7210 is not correct, as Heading No. 7210 covers the primary products - “Flat Rolled Products of Iron or Non-alloy Steel, of a width of 600 mm. or more clad, plates or coated”, while the goods, in question, are Roof Panels, which are specifically covered by Heading No. 7308. Since the goods as mentioned in the very first para of the SCN are classifiable under Heading No. 7308 and since the same have been fabricated at site for use in the construction work at that place, the same would be eligible for exemption under Notification No. 3/2005-C.E. (Sl. No. 64). The impugned order, therefore, is not correct. The same is set aside. - Decided in favour of assesse.
-
2014 (12) TMI 989
Cenvat Credit - Bogus Invoices - Non receipt of goods mentioned in invoices - Statement given by job worker - Held that:- In the invoices, description of the goods is shown as stainless steel sheets/coil only. There is no specification regarding the grade of the stainless steel sheets/coils. Mere statement given by the supplier does not establish the fact that these stainless steel sheets/coils were of 304, 316 or J4 grade. No test has been conducted of these goods. Further, no enquiry has been made at the end of the supplier regarding the procurement of the stainless steel sheets of 304, 316 or J4 grade. In the absence of any evidence on record, the mere statement of supplier cannot be relied upon. Further the goods were available at the end of the job worker also. No test was conducted to ascertain the quality of steel and merely allegation were made on the basis of marking on the sheets of the figure “200” and presumed that these sheets are of “200” grade only. In these circumstances, where no evidence is available on record and there is no description of the goods regarding the grade of the stainless steel sheets/coil in the invoice, the allegation cannot be made against the respondent that goods were not physically received by the respondent. When there are evidence on record for actual receipt of the goods by the respondent, the ld. Commissioner (Appeals) has rightly set aside the order of adjudication and held that respondent are entitled for Cenvat credit. In these circumstances, I do not find any infirmity in the impugned order, the same is upheld - Decided against Revenue.
-
2014 (12) TMI 988
Conviction for offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Variation in test results of first and second set of samples - Failure to examine the panch witness - Held that:- In a large number of cases involving the NCB, there is a failure to produce the panch witness named. There are cases where panch witnesses are not associated at all and it is sought to be explained by the prosecution that despite its request no person from the public came forward to join in the raid. The latter explanation has been accepted by some Courts by taking judicial notice of the fact that the members of the public are generally reluctant to be involved in criminal cases as witnesses. However, in a case where the NCB specifically names a public witness as being associated in the arrest and seizure, its failure to produce such person for cross-examination must be specifically explained by it.
Failure to produce the public witness was attributable to a false address given for the witness. This raises serious doubts as to whether such a witness existed at all. It will amount to falsification of the trial Court record if the thumb impression on the arrest and seizure memo is attributed to a witness who is not able to be produced and it is shown that the address given for him, even in the first instance in the summons issued by NCB, was false. This casts serious doubts on the trustworthiness of the prosecution version and in that circumstance the benefit of doubt should certainly go to the accused.
There is no independent corroboration of the arrest of the Appellant, the seizure from him of the contraband and the recording of his statement under Section 67 of the NDPS Act. Appellant did not write the statement himself. Although he appears to have written the first paragraph and the last line, in the one paragraph written by him he stated "I am not in a position to write my statement. So, I request Ajay Kumar to write my statement on my dictation." The MLC of the Appellant also showed that he had received an abrasion behind the right ear. He also mentioned his being tortured in the retraction statement at page 349 of the trial Court record.
As regards the purity of the samples taken by the NCB from the seized contraband, it was noticed earlier in the trial Court proceedings itself that a second set of samples had been sent for testing and that there was a considerable difference in the purity percentage. While in the first set of samples the purity of DAM was 51.7% and 61.4%, the purity of DAM in the second testing of the samples was 7.2% and 7.4%. The learned trial Court held that this was due to change in atmospheric conditions "and other conditions."
Witness Mahesh Kumar was presuming that there was no possibility of the second set of samples coming from a different source only because the records in the case available with the laboratory showed that on both the occasions the samples had come 'properly sealed.' It appears to the Court that the above answer was not a scientific one but a practical one which does not explain the considerable variation in the purity percentage of DAM and also the absence of two constituents in the second set of samples. The expert failed to explain how when the first set of samples showed seven constituents, even accounting for hydrolysis, there was a complete absence of two constituents in the second set of samples. The literature produced by both the parties points to the possibility of degradation of DAM to MAM and not the heroin when it is in crystallized form.
Even in the same set of samples from the same source, there is possibility of differences in percentages on account of hydrolysis of DAM into MAM, they do not explain the possibility of total absence of constituents in the second set of samples. In the instant case, this raises a doubt to whether both the set of samples were from the same source. - The Court, on a careful perusal of the evidence of the expert evidence in the present case is not satisfied that the prosecution has been able to explain the considerable variation in the purity percentages of DAM in the two samples sent for testing. Even on this score, the Court is inclined to grant benefit of doubt to the Appellant. - Decided in favour of assesse.
-
2014 (12) TMI 987
Validity of Regulation 13(h) of the Courier Regulations 1998 - Requirement of qualified employees - Under Regulation 13(h), Authorized Couriers are required to file declarations for clearance of imported or export goods through a person who has passed the examination referred to in Regulation 8/19 of the CHALR, 2004 (now corresponding to Regulation 6/17 respectively of the CBLR, 2013) and who are duly authorized under section 146 of the Customs Act, 1962 - Held that:- rationale behind the requirement under the Courier Regulations, 1998, as amended, of making/filing declarations by a person who has qualified the examination referred to under Regulations 8/19 of CHALR, 2004 (corresponding to Regulation 6/17 of CBLR, 2013) is that the said persons have adequate knowledge of overall customs clearance process. The syllabus of the examination comprises of a set of subjects required for adequacy of knowledge of Customs clearance process. The clearance through the Courier mode is part of overall clearance process and the provisions of Customs Act, 1962 are applicable in similar manner as is applicable for clearance from other modes. The object underlying the requirement of passing the examination under Regulations 8/19 of CHALR, 2004 (now Regulation 6/17 of CBLR, 2013) is to ensure that such person has the basic level of competency and knowledge.
Hence, when the Courier Regulations, 1998 as amended, stipulates that such persons filing declarations for clearance of imported and export goods under the Courier mode must have qualified at the examination as mandated under Regulation 8/19 of CHALR 2004 (now Regulation 6/17 of CBLR 2013), there is nothing arbitrary in imposing such a requirement. The requirement has a reasonable nexus with the object which is sought to be achieved viz. to ensure that the Authorized Couriers/ employees fulfill the requirement of competency, knowledge and skills. Even otherwise, the requirement under the amended Courier Regulations, 1998, that the Authorized Courier shall file declarations for clearance of imported or export goods through a person who has passed the said examination and who is duly authorized under section 146 of the Customs Act, is entirely a matter of policy and it would be impermissible for this Court in the exercise of its limited jurisdiction under Article 226 in interfering with such policy matters. It is required to be noted that the Petitioner has not challenged the amendment to the Courier Regulations, 1998 as being ultra-vires the Customs Act, 1962 or Article 14 and 19(1)(g) of the Constitution of India.
Authorized Courier may utilize services of a person who has qualified the examination under Regulations 8/19 of the CHALR, 2004, in case he or his employee has not qualified the examination for filing declarations under the Courier Regulations, 1998. In the Reply, it has been also averred that there are about 52 Authorized Couriers companies at Courier Terminal Sahar, Mumbai and almost all of the above have hired the services of persons who have passed the examination referred to in Regulation 6/17 of the CBLR, 2013 (erstwhile Regulation 8/19 of the CHALR, 2004) and clearance of courier consignments is being handled smoothly and expeditiously by Courier companies in compliance with the Regulations. This position has not been disputed by the Petitioner in their Affidavit-in-Rejoinder, except to contend that that has been done under duress and under threat of stoppage of work. Thus, the right of the Authorized Courier companies to carry on business has not been abrogated in any manner. - Decided against Petitioner.
-
2014 (12) TMI 986
Application to have an Appraisal Counter for evaluation of declared items of the passengers at the IGI Airport, New Delhi - Non availability of an "Appraisal Counter for issuance of Export Certificate" at the Indira Gandhi International (IGI) Airport, New Delhi forced passengers to travelled to the Custom House, Jhandewalan which is about 30 kms. away from the airport and thereby causing undue hardship to the commuters - Held that:- Judicial powers do not extend to giving a direction as is sought, the same being largely an administrative / policy decision but at the same time, we cannot help but observe that the respondents do not appear to have approached the issue in the correct perspective. The counter affidavit is full of legalese, rather than addressing the important issue of public interest raised in the petition. The reason given, of paucity of space and infrastructure at the airport also does not inspire confidence. IGI Airport has recently undergone re-development by acquisition of land, displacing a large number of villagers. To our knowledge, large portions of such acquired lands have been used for building hotels and which are often found to be serving the need, instead of users of the airports / travelers, of the city residents. We wonder as to why the respondents, at the time when the re-development of the airport was being planned, if facing any paucity of space / infrastructure, could not have demanded additional space.
Similarly, the argument given of having an Appraisal Counter at the airport / close to the airport posing a security hazard to the airport, cannot be accepted. Having used the said airport, it is to our knowledge that large portions of the re-developed airport are outside the secured arena. It is thus possible to have the said counter, in close vicinity of the airport and without posing any security hazard. - The respondents, in the counter affidavit though have said that no airport in the country has such an appraisal facility at the airport itself but the same in our opinion is again no reason. What the respondents have failed to address is the specific plea of the petitioner, of the other developed countries having Appraisal Counters at the airport only. Airports in all countries are situated generally far from the city and if such countries have felt the need for the Appraisal Counter at the airport, we can be reasonably sure that the same must have been done for the convenience of the passengers. Internationalization of the airports in the country has to be not only for looks but also in terms of convenience and amenities, facilities and following the practices in vogue at the airports of other countries.
Respondents directed to within six months herefrom take a reasoned decision on shifting the existing Appraisal Counter to the airport / in the close vicinity of the airport, or having an additional counter at the airport/in the close vicinity of the airport, taking into consideration all possible aspects and may be even after holding surveys and including what we have observed - Decided in favour of appellant.
-
2014 (12) TMI 985
Imposition of penalty u/s 112 - Intention to defraud Revenue - Held that:- When the appellant had no access to know about the contents in the container, it cannot be said that he has violated the law to attract Section 112 of Customs Act, 1962. Sub-clause (a) of Rule 112 of Customs Act requires a conscious knowledge of the offender in relation to the commission or omission of an act rendering the goods liable to confiscation or if he abets the doing or omitting such an act, or acquires possession of offending goods, he cannot go out of purview of Section 112 of the Act and penalty is imposable. Similarly, sub-clause (b) of Section 112 of the Act also require conscious knowledge of an offender who is concerned in carrying or removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any offending goods which he knows or has reason to believe that the same is liable to confiscation under Section 111 to be liable to penalty. There is nothing conscious knowledge of the appellant came to record demonstrating his intention to cause fraud against Customs as apparent from para-27 of the adjudication order. Appellant had also no deliberate intention to misdeclare the content in the container. Therefore, there shall be no penalty against this appellant - Decided in favour of assessee.
-
2014 (12) TMI 984
Revocation of suspended CHA License - illegal import and misdeclaration of the value of the goods without obtaining necessary authorization from the importer - violation of Regulation 13(a), (d) and (n) of CHALR, 2004 - Held that:- On perusal of the impugned order, we find that the learned Commissioner has held that the importer has filed blank papers and give ICE to some other person to import and he was not having any knowledge of the importation of the goods. On the contrary, the learned Commissioner has not given any findings on the production of the original authorization issued by the real importer and he has not doubted the signatures on the documents. In these circumstances, we hold that the appellant was having proper authorization for clearance of the impugned consignments. As the charge under Regulation 13(a) is not proved consequently, the charges under Regulation 13(d) and 13(n) are also not proved. Therefore, we set aside the impugned order and allow the appeal by restoring the operation of CHA licence No. 11/617. - Decided in favour of appellant.
-
2014 (12) TMI 983
Refund claim of SAD - Notification No. 102/2007-Cus., dated 14-9-2007 - failure to show that burden of duty has not been passed on – Held that:- appellant produced necessary C.A. certificate along with cost sheet as required under Circular No. 16/2008-Cus., dated 13-10-2008. The appellant has also specifically written on the invoices under which the goods were sold, that the credit of additional duty of customs is not available. The C.A. certificate specifically shows that the amount of refund is shown in the account books as amount due as a refund of additional customs duty – Decided in favour of assesse.
-
2014 (12) TMI 982
Sick company - Jurisdiction of BIFR - Jurisdiction of civil court to entertain recovery suit when the matter is pending before BIFR - Ambit and scope of section 22(1), 26 and 32(1) of Sick Industrial Companies (Special Provisions) Act 1985 - Though the scheme was initially sanctioned for reconstruction, the BIFR subsequently held the scheme to have failed and directed the company to be wound up. - Held that:- After a reference is registered by the Board, all throughout the subsequent stages, the BIFR has complete supervisory control over the affairs of such company till it is revived or the decision to wind up such company is taken. In our view, the ambit and extent of such control means and includes determination of such measures to achieve revival of the sick company and to check whether by such measures the revival is being achieved or not. This must cover the power to decide at any stage subsequent to the registration of reference under Section 16 whether such company has ceased to be sick company or not. Cessation of the status as a sick company can be under Section 17(1) or as a result of scheme for revival being implemented and determination of such issue, in our view, is in the exclusive domain of the BIFR.
The Civil Court was not right and justified in issuing injunction as it did. The counsel who represented the company before the BIFR on 04.04.2013, correctly submitted that before discharging the company the BIFR can examine the audited balance sheet and satisfy itself whether the net worth had turned positive.
Insofar as the recovery of money is concerned, the matter is completely covered by Section 22(1) - The language employed in Section 22(1) of the Act refers to the entirety of the period beginning from the inquiry under Section 16 till the implementation of sanctioned scheme for revival - the BIFR was considering Draft Rehabilitation Scheme which is a stage u/s 18(3) and is completely covered by the period u/s 22 of the Act - The suit as framed for recovery of money filed without the consent of the BIFR was not competent and maintainable – relying upon Managing Director, Bhoruka Textiles Limited Vs. Kashmiri Rice Industries [2009 (5) TMI 546 - SUPREME COURT OF INDIA] – the suit insofar as it relates to the claim for recovery of money, could lie or be proceeded with only after express consent of the BIFR.
Whether BIFR ceased to have jurisdiction over the company and that all the proceedings in the BIFR after filing of the positive balance-sheet - Held that:- We leave it to the BIFR to satisfy itself and determine the issues whether the net worth of the company has turned positive or not. If the BIFR is so satisfied, it shall de-register the company and upon such declaration the company will be out of the supervisory jurisdiction of the BIFR under the Act. Needless to say that if the BIFR is not satisfied that the net worth of the company has turned positive, it shall go ahead and consider the scheme for revival of the company.
Since in our view the company continues to be a sick company and it was not competent for anyone except the BIFR to determine whether the net worth of the company had turned positive, we hold the sale of Katihar property effected by the company without express leave or permission of the BIFR to be questionable. However, since the transferee of that property is not before this Court we relegate this matter for appropriate assessment by the BIFR after issuing due notice to the transferee. We also leave it to the BIFR to consider and assess whether there was any necessity or expediency to sell the property in question. - Decided in favor of petitioner.
-
2014 (12) TMI 981
Ground not raised before Tribunal - Disallowance on interest u/s 36(1)(iii) deleted - diversion of interest bearing funds to interest free advances or not – Held that:- No such ground was taken or argument was advanced before the Tribunal - the AO, who is the author of the assessment order, dated 29th March, 1994 represented the Department before the FAA and it is not possible to accept that attention of FAA was not drawn to this factual discrepancy – thus, as such no substantial question of arises for consideration – Decided against revenue.
Receipt by way of gain on cancellation of foreign exchange contracts - revenue v/s capital - Held that:- Following the decision in As decided in The DY. CIT. Versus Gujarat Narmada Valley Fertilisers Co. Ltd. [2013 (5) TMI 760 - GUJARAT HIGH COURT] wherein the decision in DCIT(Assessment) vs. Garden Silk Mills Ltd. [2009 (2) TMI 95 - GUJARAT HIGH COURT] relied upon wherein it was held that the surplus received on cancellation of forward foreign exchange contract was a capital receipt not liable to tax and that it did not fall under section 28(iv) - Thus the Tribunal was right in holding that the receipt by way of gain on cancellation of foreign exchange contracts is a capital receipt not liable to tax and was accordingly justified in directing the AO to make necessary adjustment to the cost of the acquisition/WDV of the plant and machinery to which the receipt pertains and to make consequential adjustment to the depreciation granted – Decided against revenue.
-
2014 (12) TMI 980
Revision of order of AO u/s 264 - Retrospective amendment to be considered or not - Whether the Commissioner, while revising an order of the AO u/s 264, could take into account a retrospective amendment made after the order of the AO – Held that:- In Commissioner of Income-Tax vs. Kamla S. Asrani [1990 (8) TMI 53 - BOMBAY High Court] it has been held that when the law is amended with retrospective effect, the court, when it decides any proceeding, has to apply such retrospectively amended law as if it were in force at all material times - The application of the relevant law to the problem raised in the reference before the High Court normally is not excluded merely because at the date when the Tribunal decided the question, the relevant law was not or could not be brought to its notice – the discussion also applies to the powers of revision of the Commissioner u/s 264 - as in the case of Sections 256(1) and 256(2), the revenue is seeking to draw an artificial distinction between Sections 263 and 264, in relation to the applicability of the retrospectively amended law, which would not be permissible.
If one has regard to the applicable law (applicable by virtue of a retrospective amendment), there is clearly an over-assessment of the assessee - assessee has been charged more tax than what is due and payable by him - The Commissioner is not only entitled but is duty bound to correct the assessment in revision – thus, the order is set aside and the revenue is directed to consider the assessee's claim of deduction u/s 80 HHC – Decided in favour of assessee.
-
2014 (12) TMI 979
Rejection of stay application on appeal pending before CIT(A) – Appeal filed for assessment order passed u/s 143(3) r.w. section 263 by Vodafone India Limited - ₹ 320.44 crores to be stayed till disposal or not – Held that:- Taking note of the fact that the assessee has already paid approximately 40% of the total amount of the dues for AY 2006-07 and the assessee has acted in right earnest in having the appeal disposed of and the last hearing was held as far back as on 25 June 2014, the delay thereafter in disposing of the appeal is entirely due to CIT (A) as the remand report was called for on 12 November 2014 - It is only now that the petitioner has learnt for the first time that the remand report has been called for by the CIT (A) by virtue of the affidavit dated 16 December 2014 filed by the AO in reply to the present petition – thus, it would only be fair that the balance demand of ₹ 320.45 crores is stayed till the disposal of the appeal by the CIT (A) – Stay granted.
Also in UTI Mutual Fund vs. ITO [2012 (3) TMI 333 - BOMBAY HIGH COURT] it has been held that the orders passed by the Authorities under the Act would not be enforced till such time as the period to file an appeal before the Appellate Authority expires and where stay applications have been filed, the Revenue would not adopt coercive proceedings till the disposal of the stay application by the Appellate Authorities – Decided in favour of assessee.
-
2014 (12) TMI 978
Notice for reopening of assessment u/s 148 - Deduction u/s 80M claimed on the dividend received as a shareholder – Invocation of provisions of section 115-O - Held that:- During the subject AY 2003-04, Section 115O of the Act was not in the Act - It only came into force from the AY 2004-05 – in Godrej Agrovet Limited Versus The Deputy Commissioner of Income Tax [2010 (2) TMI 27 - BOMBAY HIGH COURT] it has been held that u/s 147 of the Act, the AO has a power to reopen the assessment by issuing a notice for the same provided that he has reason to believe that income escaped assessment - The reopening of an assessment cannot be on a mere change of opinion - the basis of reopening of the assessment was the payment of dividend u/s 115 O - Section 80M as it stood during the AY 2003-04 allowed an assessee to claim deduction u/s 80 M of the Act so long as the amount of dividend received is less than the amount of dividend distributed before the due date of filing the return of income - the AO seeking to deny the benefit of tax u/s 80 M on account of Section 115O, has proceeded on an extraneous ground - Section 115O of the Act could not have been invoked to disallow the deduction available u/s 80 M of the Act in the AY 2003-04.
The date of filing of return was 31st October, 2003 and the assessee had distributed the dividend on 6th October, 2003 - all conditions necessary for claiming deduction on the dividend received u/s 80M of the Act including the monetary cap of being less than the dividend distributed was satisfied - Thus, AO could not have had any reason to believe that income chargeable to tax has escaped the assessment for AY 2003-04 - It was not open to the AO to invoke provisions of Section 115 O which were not in the Act for the AY 2003-04 to deny the benefit of deduction u/s 80M.
The deduction being claimed by the assessee u/s 80 M is not on the amounts which have been distributed as dividend by the assessee to its shareholders and on which the tax is paid u/s 115 O of the Act - The deduction u/s 80M of the Act claimed is on the dividend received by the Petitioner as a shareholder – thus, Section 115 O (5) of the Act will have no application – thus, the notice issued u/s 148 is set aside – Decided in favour of assessee.
-
2014 (12) TMI 977
Addition u/s 68 – Genuineness of transaction in shares - genuine or sham and bogus – CIT concluded that certain operators and brokers devised a scheme to convert the unaccounted money of the Assessee to accounted income and the Assessee utilized this scheme. - Tribunal deleted the additions on the ground that onus was not discharged by the department.
Held that:- The Commissioner extensively referred to the correspondence and the contents of the report of the Investigation carried out, what was important and vital was whether the transactions in shares were genuine or sham and bogus - the Tribunal rightly concluded that there was something more which was required, which would connect the present Assessee to the transactions and which are attributed to the Promoters/Directors of the two companies - the Tribunal referred to the entire material and found that the investigation stopped at a particular point and was not carried forward by the Revenue - There are 1,30,000 shares of Bolton Properties Ltd. purchased by the Assessee during the month of January 2003 and he continued to hold them till 31 March 2003. The present case related to 20,000 shares of Mantra Online Ltd for the total consideration of ₹ 25,93,150.
The contract notes in Form-A with two brokers were available and which gave details of the transactions - The contract note is a system generated and prescribed by the Stock Exchange - this was not mere accommodation of cash and enabling it to be converted into accounted or regular payment - The discrepancy pointed out by the Calcutta Stock Exchange regarding client Code has been referred to - that itself is not enough to prove that the transactions in the impugned shares were bogus/sham - The details received from Stock Exchange have been relied upon and for the purposes of faulting the Revenue in failing to discharge the basic onus - inquiry was not carried forward and with a view to discharge the initial or basic onus, then the conclusion of the Tribunal cannot be termed as perverse – thus, no substantial question arises for consideration – Decided against revenue.
............
|
9911796707
