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Showing 1 to 20 of 2113 Records
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2018 (2) TMI 2114
Validity of reopening of assessment u/s 147 - satisfaction for issuance of notice u/s. 148 by appropriate authority - whether satisfaction in accordance with section 151(1) is recorded by the prescribed authority or not? - HELD THAT:- At the time of hearing, learned AR has submitted before us a copy of the form for recording the reasons for initiating proceedings u/s. 148 which reveals that the satisfaction for issuance of notice u/s. 148 of the Act was recorded by the Additional CIT, Range 12(1), Mumbai. Thus, the aforesaid facts brought on record demonstrate that the recording of satisfaction for issuance of notice u/s. 148 of the Act was not by any of the authorities prescribed under the proviso to section 151(1).
DR has not brought any material before us to controvert the aforesaid factual position. That being the case, the notice issued u/s. 148 of the Act being not in accordance with the provisions of section 151 of the Act is invalid. Consequently, the proceedings conducted in pursuance of such notice as well as the assessment order passed u/s. 143(3) r.w.s. 147 of the Act in pursuance thereto is rendered invalid.
It is relevant to observe, in assessee's own case for A.Y. 2006-07, [2016 (6) TMI 836 - ITAT MUMBAI] the assessment order was quashed by the Tribunal under identical facts due to lack of satisfaction by the prescribed authority in terms of proviso to section 151(1) - Hon'ble Bombay High Court has expressed similar view in the case of Ghanshyam K Khabrani [2012 (3) TMI 266 - BOMBAY HIGH COURT]In view of the aforesaid, we have no hesitation in quashing the impugned assessment order. The grounds raised are allowed.
Re-opening of assessment on the basis that the assessee is not eligible to claim deduction u/s 801B(10) for the housing project as it was not completed on or before 31% March 2009 - HELD THAT:- AO while completing the original assessment has examined all facts and materials relating to assessee's claim of deduction under section 801B(10) of the Act in respect of the housing project and only after proper application of mind has allowed assessee's claim of deduction. While re-opening the assessment, the Assessing Officer had no tangible material to come to the conclusion that there is escapement of income. Only on re-appraisal of the material available at the time of original assessment the AO has reopened the assessment under section 147 of the Act by forming a belief that the assessee is not eligible to claim deduction under section 80IB(10) of the Act due to non-completion of the project within the stipulated time. Thus, consideration of facts and material on record in the light of well settled legal principle leads to the irresistible conclusion that the AO has re-opened the assessment on a mere change of opinion without having in his possession any tangible material.
Therefore, it amounts to review of the original assessment order passed in case of the assessee, hence, is legally impermissible. Therefore, we are of the considered opinion that re-opening assessment under section 147 of the Act in the instant case is not valid; consequently, the impugned assessment order passed in pursuance thereto is also invalid and has to be quashed. Decided in favour of assessee.
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2018 (2) TMI 2113
Addition u/s 68 - unexplained credit-brought to tax - AO relied upon the statements made by the Directors of the companies, whose credits were sought to be questioned and also upon the account statements of the said companies - CIT(A) and ITAT deleted addition - HELD THAT:- Both the appellate authorities held that the AO did not make proper enquiries. Assessee had provided the primary details such as the identify of the creditors, their bank accounts (financial soundness) and all material particulars. Thus, the initial onus cast upon the assessee in terms of the judgment of Lovely Exports [2008 (1) TMI 575 - SC ORDER] was discharged.
Burden which then shifted to the ITAT of probing deeper was not discharged in the present case. The AO did not make a closer scrutiny of the bank accounts or the statements provided; nor did he probe into the income tax returns of the creditor companies. The AO should not have rested content only on the statement of the Directors, but, also analysed the other details provided. In these circumstances, the concurrent findings of facts, cannot be faulted.
Addition u/s 2(2)(e) - amounts secured as loan were treated as “deemed dividend” - assessee was shareholder to the tune of 20% of its share capital, in these circumstances, the transactions squarely amounted to a deemed dividend - ITAT deleted addition - HELD THAT:- This kind of transaction though facially suspect, stands sufficiently explained. The Court also notices that the recent Board’s circular in this regard (which is dated 12.06.2017 – circular 19/2017) is based upon judicial decisions of various High Courts and has guided the Income Tax Authorities that trade advances which are in the nature of commercial transactions would not fall within the ambit of the word “advance” in Section 2(22)(e) of the Act. Furthermore, similar decisions have been rendered by various High Courts including this Court in Commissioner of Income Tax vs. Raj Kumar [2009 (5) TMI 17 - DELHI HIGH COURT] and Commissioner of Income Tax vs. F. Praveen, [2008 (8) TMI 908 - MADRAS HIGH COURT]
The lone question urged with respect to disallowance of commission, claimed by the assessee for one year, was examined and concurrent findings returned by the Appellate Commissioner and the ITAT. In the circumstances, no question of law arises on that score. No substantial question of law arises. Revenue appeal dismissed.
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2018 (2) TMI 2112
Addition on account of peak of negative cash as undisclosed investments - benefit of telescoping - search and seizure operation took place at the premises of the assessee Group - AO noticed that there is a negative cash balance in the cash book of the assessee - HELD THAT:- During the course of search, when negative cash balance was confronted to the assessee, the partner explained that such negative balance was on account of payment made out of unaccounted income and the unaccounted income has been offered as part of overall disclosure.
In our considered opinion when the assets were acquired out of undisclosed income and when the entries are made in the books of accounts, it is bound to result in negative cash balance. Hence, the benefit of telescoping of such negative cash balance against disclosure made on application of funds has to be allowed. The revenue cannot make additions on both counts that is on the one hand, the additions of income has been made and on the other hand the assets acquired out of such income is treated as unexplained investment. The revenue cannot blow hot and cold in the same breath. Decided against revenue.
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2018 (2) TMI 2111
Declination to grant bail - investigation in this case is complete and the charge sheet has already been filed - HELD THAT:- It is expedient to not express any opinion at this stage on the merits of the case, particularly in view of the pendency of trial.
So far as the prayer of the appellant for bail is concerned, a perusal of the charge sheet indicates that the appellant—accused is similarly placed with all the other accused and they were already released on bail. He is charged with Section 201 and 203 of the Indian Penal Code along with other accused. He is also charged with Section 120(B) and 302 read with Section 34 of the Indian Penal Code.
Taking into consideration the medical reports of the appellant, it is necessary to grant bail to him. But, considering the apprehension expressed by the learned counsel appearing on behalf of the C.B.I., it is thought fit that the appellant, while on bail, should stay far away from the place of occurrence.
The appellant is directed to be released on bail, subject to the fulfilment of conditions imposed - bail application allowed.
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2018 (2) TMI 2110
Doctrine of purposive interpretation - alleged violation of under Sections 372 A 85(3) r/w 211 and Schedule II of the Companies Act, 1956, by which the petitioners herein were asked to show cause - seeking to invoke Section 463(2) of the Companies Act, 2013 - HELD THAT:- The principle governing the interpretation of the statute has reached the stage where the Courts interpreted a provision of legislation notwithstanding its nature, be it penal, revenue, social or otherwise. It is more so, when the rule of interpretation, while applied against a reasonable and harmonious one does not stand to reason or leading to absurdity. A principle of natural justice has to be read into and seen in any provision unless expressly conferred taking its own rationale behind it. The said principle is to be applied with more rigour in a case where the show cause notice was given followed by explanation a consequential decision was made without passing orders thereon.
This Court is of the considered view that when once the show cause notice is issued, then it would amount to initiation of the proceedings qua negligence, default, breach of duty etc., However, the same would not be applicable to a criminal action. The decision to initiate a criminal proceeding would naturally come on a factual finding resulting in the final order to be passed by the first respondent, on a consideration of the reply given to the show cause notice. Therefore, the first respondent has to pass a reasoned order on two aspects. One is on merit with respect to the negligence, default etc, attributable on the part of the officer and the second is with respect to the decision made to proceed under the criminal law. These two factors are mandatory as the Court under Section 463(2) of the Companies Act, 2013 is only required to say as to whether the officer has acted honestly and reasonably after finding the negligence on his part by the first respondent - This Court is of the view that the power to go into the question of negligence, default, breach of duty etc., does not lie with this Court as it is the role which is to be played by the first respondent. However, the issue pertaining to an officer having acted honestly and reasonably solely lies with this Court to be decided as against the petitioner concerned. To put it differently, such an issue can never be gone into by the first respondent as against this Court.
Thus, the first respondent cannot decide the issue of taking criminal action without a factual finding resulting in a final order to be communicated to the petitioner. After all, a show cause notice issued should result in an adjudication process, for which, a person, whose rights are liable to be affected has to be informed by a decision supported by reasons, on a consideration of the reply given. Therefore, it is mandatory on the part of the first respondent to see to it that such an order is passed and served on the officer against whom a criminal proceedings is likely to be initiated by giving a private complaint. Even otherwise, the decision is necessarily to be communicated by the first respondent.
The first respondent is directed to pass appropriate reasoned orders on a consideration of the reply given by the petitioners concerned - Petition disposed off.
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2018 (2) TMI 2109
Exemption u/s 11 - application for registration u/s 12AA and sanction u/s 80G(5)(vi) rejected on the grounds inter alia that gross receipts in all the five years are far in excess of Rs.1 crore and the assessee society has wrongly claimed exemption u/s 10(23C)(iiiad) of the Act.
Assessee society have been charging fee from students under various different heads featuring in the income and expenditure statement and that the land in question on which the senior wing of the school is being run has been taken on lease from the founder members of the society while the junior wing of the school is being run on the land which was donated and since the land in question on which the main school is running does not belong to the society, the property in question for charitable purpose also remains in question
HELD THAT:- When assessee society is admittedly into imparting education for the general public utility, the registration cannot be declined on the ground that the assessee society has been collecting money from the students in the name of various funds. More particularly when it is not the case of the CIT (E) that the activities being carried out by the assessee society are for profit making.
More so, in case quality education is to be provided funds for extra-curricular activities to enhance the overall profile of the students are required. In case collecting of such funds are found to be not in consonance with aims and objects of the society, the AO can disallow the same while making assessment on year to year basis. On the basis of the fact that the assessee society has wrongly claimed exemption u/s 10(23C)(iiiad), the registration cannot be declined.
CIT (E) has also expressed apprehension that building on which senior wing of the school is functioning has been taken on lease from the founder member of the society and there is a possibility of accretion being made to the school building may directly be beneficial to the founder member in the event of treatment of lease deed expiring but this apprehension is merely based upon surmises and conjectures. Again these facts can be examined on year to year basis by the AO at the time of assessment.
We are of the considered view that the order passed by the ld. CIT (E) firstly declining registration u/s 12AA of the Act and consequently, declining the permission u/s 80G(5)(vi) of the Act is not sustainable in the eyes of law. Hence, CIT (E) is directed to grant registration to the assessee society forthwith also with consequent approval u/s 80G of the Act. Consequently, both the appeals filed by the assessee are allowed.
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2018 (2) TMI 2108
CENVAT Credit - capital goods - input services - Outdoor Catering services - period from April 2011 to February 2012 - HELD THAT:- It is found that though the Larger Bench vide in M/S. WIPRO LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-III. [2018 (4) TMI 149 - CESTAT BANGALORE - LB] has held that Outdoor Catering after 01.04.2011 is not an ‘input service’ and therefore, cenvat credit is not available, but in the present case one of the invoices is prior to 01.04.2011 and service tax of Rs. 34,315.91 was paid on Catering Services prior to 01.04.2011 and therefore, in view of the decision of the Tribunal in the case of HINDUSTAN COCA COLA BEVERAGES PVT. LTD. VERSUS C.C.E. & S.T., MEERUT-II [2015 (11) TMI 717 - CESTAT NEW DELHI], it is opined that the appellant is entitled to the cenvat credit of Rs. 34,315.91 as the same relates to the period prior to 01.04.2011.
The appeal is allowed.
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2018 (2) TMI 2107
Condonation petition before CIT(A) - CIT(A) refused to condone the delay, citing a reason that assessee did not file any evidence in support of the contentions raised in the condonation petition - AR submitted that he himself was the concerned AR appointed by the assessee to appear before the CIT(Appeals) and due to certain personal inconvenience, he could not enter appearance - HELD THAT:- No doubt it should be the endeavor of every assessee to ensure that it is properly represented before the ld. Commissioner of Income Tax (Appeals). However, considering the submission of the ld. Authorised Representative before us that the delay was due to certain unavoidable circumstances, we are of the opinion that delay ought be condoned. When technical consideration and merits are pitted against each other, the latter has to get preference over the former.
We direct the CIT(Appeals) to condone the delay, admit the appeal and adjudicate it on merits. Needless to say that assessee shall be given proper opportunity to explain its case. We therefore set aside the order of CIT (Appeals) and remit the appeal back to him for consideration afresh in accordance with law - Appeal of the assessee is allowed for statistical purpose.
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2018 (2) TMI 2106
Condonation of delay - delay of 246 days in filing the subject appeals - HELD THAT:- We find that as per the confirmation received from the Department of posts dated 18.1.2014, the order of the Ld. CIT(A) was delivered to the assessee on 5.3.2013. The assessee has not been able to controvert the said factual position as emanating from the records. Further, the averments made in the condonation application and the affidavit so filed in support thereof are self-contradictory and nowhere support, the case of the assessee company. In its condonation application, the assessee has stated that a copy of the order was received on 18.12.2013 and thereafter the certified copy was received on 30.12.2013. However, in the subsequent affidavit dated 20.10.2015, the Director of the assessee company is still maintaining the position that they have still not received the order passed by the Ld. CIT(A), Ajmer.
It is clear that the order passed by the Ld. CIT(A) on 21.2.2013 has been served on the assessee on 5.3.2013 and the appeal has been filed on 6.1.2014. There is no further explanation submitted and reasonable cause shown by the assessee to explain the inordinate delay of 246 days of filing the subject appeals from date of service of the order on the assessee company.
We are of the view that the submissions of the assessee company are merely self-serving statements, the veracity of which are established otherwise but also there is an inordinate delay of 246 days in filing the subject appeals. The assessee in its averments has not made out any case that there was reasonable cause which being beyond the control of the assessee, prevented it from filing the appeals in time before the Tribunal. The delay cannot be condoned merely because the assessee's case calls for sympathy or merely out of benevolence.
The delay was due to the negligence and inaction on the part of the assessee, which could have been avoided by the assessee if it had exercised due care and attention. Therefore in our opinion, in the factual matrix of this case, there exists no sufficient and reasonable cause for the inordinate delay of 246 days in filing the subject appeals. In coming to this finding, we draw support from the decisions of the Hon'ble Supreme Court in the case of MST Katiji [1987 (2) TMI 61 - SUPREME COURT] Vedabai alias Vaijayanatabai Baburao Patil [2001 (7) TMI 117 - SUPREME COURT], and Ganga Sahai Ram Swaroop [2004 (7) TMI 78 - ALLAHABAD HIGH COURT].
Thus cause of substantial justice would not be served by condoning the inordinate delay of 246 days in filing these appeals for which no cogent reasons have been given.
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2018 (2) TMI 2105
Disallowances under the head ‘Selling & Administrative’ expenses - AO has disallowed these expenses on the grounds that these expenses have not been properly vouched - CIT (A) has remitted the disallowance from 20% to 10% on the grounds that the disproportionate increase has not been justified by the assessee - AR argued that AO has not doubted in genuineness of expenses and not pointed out even single instance where expenses were not supported by bills and vouchers - HELD THAT:- Since the matter of availability of the bills is being disputed by both the parties, we hereby remand the matter to file of the Assessing Officer to verify the bills and allow the expenses debited. AR is also directed to produce all the bills and vouchers before the Assessing Officer to credit the claim of expenditure.
Rebates and Discount Expenses - AO disallowed 10% of the expenses claimedas the Rebates and Discounts claimed do not commensurate with the increase of the turnover of the assessee and the assessee could not satisfactorily explain the drastic increase in the expenditure - AR argued that in applying the test of commercial expediency for determining whether the expenditure was wholly and exclusively laid out for the purpose of business, reasonableness of the expenditure has to be judged from the point of view of the businessman and not of the Revenue - HELD THAT:- There were no findings by the Assessing Officer as to the discrepancy in books of accounts or any other material showing that these expenses debited or not genuine or not verifiable. From the submissions it could be found that the increase in the rebates was due to restructuring of the business of the assessee and the department cannot determine as to what should be the percentage of rebates and discount to be allowed in the absence of any material, investigation, evidence or proof about the non admissibility of the expenses hence the ad-hoc disallowance of 10% made by the Assessing Officer is hereby directed to be deleted.
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2018 (2) TMI 2104
Levy of penalty u/s 271(1)(c) - disallowance on account of expenses on increase in the authorized share capital - bonafide Belief or deliberate intention - whether the fees paid for increasing the authorized capital, particularly when the same is to meet the working capital requirement is a capital expenditure or not? - HELD THAT:- As in the penalty proceedings, assessee has categorically stated that the increase in the authorized share capital was with a view to expand the capital base of the company for availing more credit facility from the bank for its working capital requirement.
This is also evidenced by the loan sanction letter issued by the assessee’s bank for working capital requirement (due to proposed increase in sales) wherein the assessee was required to increase the share capital from Rs. 9 crores to Rs. 11 crores before release of enhanced limits - Revenue has not controverted the said explanation of the same submitted during the course of penalty proceedings.
Bonafide of the said explanation is therefore not under challenge especially in light of the plausible view which can be taken in respect of share issue expenditure which has been claimed as revenue expenditure.
Given that all necessary facts are on record regarding claim of the share issue expenditure and the explanation of the assessee has been found to be bonafide, merely because the expenditure so claimed is disallowed and treated as capital expenditure, the same cannot be basis for levy of penalty for furnishing inaccurate particulars of income u/s 271(1)(c) - A similar view has been taken in case of JKP Auto parts [2017 (5) TMI 1617 - ITAT DELHI] In the result, the penalty so levied and confirmed by the ld CIT(A) is hereby deleted. Decided in favour of assessee.
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2018 (2) TMI 2103
Undisclosed stock - assessee failed to reconcile the value of stocks on the day of survey as verified by BCCL with that of stock register - objections raised by the assessee in respect of the valuation certification issued by the BCCL authority rejected - HELD THAT:- We find that under identical facts, the Co-ordinate Bench of ITAT, Ranchi remanded the issue to the file of the A.O. to conduct and consider the issue de novo in terms of the decision of Hon’ble Supreme Court in the case of Sahara India [2008 (4) TMI 4 - SUPREME COURT] has held that it was incumbent upon the authorities below to give proper reasons as to why they are rejecting the preliminary objection of the assessee for the reliance on report of the survey officers of BCCL regarding the discrepancy found during survey conducted u/s 133A - even administrative orders have to be consistent with rules of natural justice. Accordingly we remit the issue to the file of the A.O. The A.O. is directed to consider the issue de novo and pass a speaking order after considering all the aspects raised by the assessee.
We deem it proper to remand the issue to the file of the A.O. for his consideration afresh in terms of the objections raised by the assessee in respect of the valuation certification issued by the BCCL authority.
Profit on undisclosed sale - Since we have taken a view to remand the issue raised in ground no 2 to the file of A.O. and by following the same, we deem it proper to remand the issue in ground no 3 to the file of A.O. by taking into consideration submissions of both the parties before us.
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2018 (2) TMI 2102
Intimation u/s 154 - interest charged u/s 201(1A) for late payment of TDS by the assessee company - HELD THAT:- When undisputedly order / intimation has been passed u/s 154 by CPC – TDS in a mechanical manner without providing an opportunity of being head to the assessee and thereby enhanced the tax liability of the assessee company, provisions contained u/s 154 (3) of the Act are attracted making it obligatory on the part of the Revenue to provide an opportunity of being heard to the assessee company.
So impugned order passed by the ld. CIT (A) is not sustainable in the eyes of law and consequently file is ordered to be remanded to AO to decide afresh after providing an opportunity of being heard to the assessee company. Assessee appeal allowed for statistical purposes.
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2018 (2) TMI 2101
Valuation - FOB contract on export items - whether FOB price can be treated as cum-duty or not? - HELD THAT:- Delay condoned.
Appeal is admitted.
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2018 (2) TMI 2100
Seeking clarification as to who will sign the cheque on behalf of the Corporate Debtor - HELD THAT:- It is clarified that after appointment of the Resolution Professional and declaration of moratorium, the Board of Director stands suspended, but that does not amount to suspension of Managing Director or any of the Director or officer or employee of the Corporate Debtor. To ensure that the Corporate Debtor remains on going concern, all the Director/ employees are required to function and to assist the Resolution Professional who manages the affairs of the Corporate Debtor during the period of moratorium. If one or other officer or employee had the power to sign a cheque on behalf of the Corporate Debtor prior to the order of moratorium, such power does not stand suspended on suspension of the Board of Directors nor can be taken away by the Resolution Professional. If, the person empowered to sign cheque refuse to function on the direction of the Resolution Professional or misuse the power, in such case it is always open to the Resolution Professional to take away such power after notice to the person concerned.
Post the case for hearing on 12th March, 2018. Case may be disposed of on the next date.
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2018 (2) TMI 2099
Detention of goods - Betel Nuts - Perishable goods - Petitioner's defence appears to be that the goods are not imported goods, but such as have been produced inside the country, therefore, the custom authority has no jurisdiction to detain or seize the same - HELD THAT:- While the aforesaid issue may be properly gone into in adjudication proceedings which are yet to be undertaken, at this stage, the goods being perishable in nature may not be detained by the custom authority any further. Accordingly, goods in question may be released in favour of the petitioner, subject to its furnishing security in the shape of bank guarantee for the full value of the goods as disclosed in the invoice.
Petition disposed off.
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2018 (2) TMI 2098
Application Under Order VII Rule 11 of the Code of Civil Procedure, 1908 claiming rejection of the plaint - rejection on the ground that the suit filed by Respondent No. 1 was barred by res judicata and also Under Section 69 of the Indian Partnership Act, 1932 - HELD THAT:- In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the Plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the Appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the Appellant it has already been decided in the previous two suits that Respondent No. 1/Plaintiff retired from the partnership firm much earlier, after taking his share and it is the Appellant (or Appellant and Respondent No. 2) who are entitled to manage the affairs of M/s. Sen Industries.
Reference made to the judgment of this Court in KAMALA AND ORS. VERSUS K.T. ESHWARA SA AND ORS. [2008 (4) TMI 800 - SUPREME COURT]. That was a case wherein the trial judge allowed an application for rejection of the plaint in a suit for partition of family properties and the same was affirmed by the High Court as well. An appeal against the order of the High Court was filed before this Court. While examining the scope, ambit and exercise of power Under Order VII Rule 11 of Code of Civil Procedure, this Court held The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.
In a case like this, though recourse to Order VII Rule 11 Code of Civil Procedure by the Appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the Appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the Appellant is ultimately found to be correct in his submissions.
Appeal dismissed.
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2018 (2) TMI 2097
Suit for declaration, permanent injunction and in alternate, for partition and possession of property - Plaintiff's case in effect is that the family settlement should be given full effect to and in a situation where the Defendants continued to claim rights to the Chandigarh property, Plaintiff should be entitled to 1/3rd share of the Delhi property.
HELD THAT:- The family settlement is unregistered but is an exhibited document and is admitted by the parties. The fact that the signatures on the same are in original before the Court, even if the same were not on original stamp paper, it would be valid and binding on the parties. Objections raised by D2 to the family settlement are not tenable as he has acted as per the said family settlement. The Trial Court has rightly decreed the suit in favour of the Plaintiff. D2 having derived the benefits from the family settlement has unnecessarily created a long standing dispute - Family settlements are intended to maintain and continue peace and cordiality among family members. Even if one family member does not abide by it, the harmony of the family is disturbed. Courts, therefore, are to enforce the letter and spirit of family settlements without going into technicalities. The court, after perusing the pleadings and documents does not find any illegality or perversity in the impugned judgement of the Trial court.
Trial court judgment is affirmed. In view of the conduct of D2 who kept the family embroiled in a long standing dispute, after having fully derived benefit from the family settlement, the appeal is liable to be dismissed with costs.
The appeal is accordingly dismissed with Rs. 1 lakh as costs, payable to the Plaintiff within 4 weeks.
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2018 (2) TMI 2096
Authority to consider and decide the issue on prayers made by the Chartered Accountants' Firm - HELD THAT:- Looking at the relief and prayers made by the Chartered Accountants' Firm, we would dispose of the writ petition directing that the writ petition would be treated as a representation to the Competent Authority, who would examine and inform the petitioner about their decision on the fee within a period of eight weeks, from the date of receipt of a copy of this order.
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2018 (2) TMI 2095
Levy of Excise Duty - body cover of the diesel generating sets - demand is confirmed against the appellant who is the principal manufacturer - evasion of duty - HELD THAT:- The appellant is receiving the acoustic enclosures (cover) which is manufactured by M/s. SBN Engineering Works as job worker on the request of the appellant who is the principal in the instant case. Regular payment is being made by the appellant to the job worker. Principal manufacturer i.e. the appellant has not given any undertaking to take the responsibility for payment of the duty. At the same time, the job worker has also not paid the duty.
To protect the interest of the Revenue, the duty will have to be paid by someone. In the instant case, the appellant is the principal and by not giving the undertaking, the appellant has developed a system to evade payment of Central Excise duty. By connivance of two parties, sovereign function of payment of duty cannot be avoided - In the instant case, the principal and the job worker with a conspiracy as stated above have made an attempt to evade the payment of duty. They tried to take advantage of the technicality of the law.
There are no infirmity in the impugned order and the same is hereby sustained - appeal dismissed.
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