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Showing 101 to 120 of 558 Records
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2004 (10) TMI 541 - ITAT BANGALORE
Charitable or religious trust ... ... ... ... ..... was debited in the name of Trustee. Thus there is no diversion of property of Trust. we accordingly hold that section 13(2)(g) is not attracted in the present set of facts so as to disentitled the assessee benefit of section 11. 5.3 We are aware of the decision of Hon rsquo ble Karnataka High Court in assessee rsquo s case when the assessee preferred an appeal against refusal for renewal of approval under section 80G. Section 80G operates on different footing than section 11. For availing the benefit under section 11 what is seen is that the object of Trust are charitable in nature, the income is applied for such charitable purposes in India and section 13 is not applicable to the assessee. Since we have found that section 13 is not applicable and since the objects are charitable in nature, the assessee is eligible exemption under section 11. The Assessing Officer shall compute the income after considering the benefit of section 11 of the Act. In the result appeal is allowed.
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2004 (10) TMI 540 - ITAT COCHIN
Capital gains ... ... ... ... ..... local Panchayath. If there was any new building, the local authority might have initiated proceedings for assessment under the Panchayath Act for bringing the new building for taxation. Admittedly such a proceeding was not initiated by the local Panchayath. The door number of the building which is claimed to be constructed during the assessment year under consideration was in existence even before 1986. Therefore, it is very clear that the building now said to be constructed was in existence much before the date of transfer of the capital asset. Therefore, we do to find any material on record to show that the assessee has constructed any new building as alleged by him and made any investment in the construction of the new building for claiming exemption under section 54F of the Act. In view of these facts, we do not find any infirmity in the order of the learned Commissioner of Income-tax (Appeals). Accordingly the same is confirmed. 7. In the result, the appeal is dismissed.
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2004 (10) TMI 539 - ITAT AGRA
Revision - Of orders prejudicial to interest of revenue ... ... ... ... ..... of ITAT, Agra Bench in case of Rishi Kumar Gupta v. CIT 2004 90 TTJ (Agra) 645 (Addl. Volume), for the assessment year 1998-99, wherein, the CIT had set aside the assessment order in exercise of powers under section 263 of the Act on similar grounds, but the Hon rsquo ble Tribunal set aside the order of the CIT, after holding that it is for the Assessing Officer and not for the CIT to decide as to upto what extent, the enquiry is to be made, I am of the opinion that the assessment order dated 28-3-2003, which has been passed by the ITO after consultation with and under the supervision of JCIT, Range-3, Mathura and on appreciation of evidence furnished by the assessee, though may be cryptic one, but can rsquo t be said erroneous and prejudicial to the interest of revenue. Consequently, the CIT was not justified in invoking his powers vested by the provisions of section 263 of the Act. The order of the CIT is set aside. 17. In the result, the assessee rsquo s appeal is allowed.
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2004 (10) TMI 538 - ITAT DELHI
... ... ... ... ..... h Court in the case of CIT v. Chemical and Metallurgical Design Co. Ltd. 2001 247 ITR 749 wherein it has been held that deduction under section 80-O was to be allowed on the net income after deducting expenses and not on the gross receipts. 17. In view of the above ground No. 5 of grounds of appeal in both assessment years 1995-96 and 1996-97 are dismissed. 18. What remains for consideration is ground No. 6 in the assessment years 1995-96 and 1996-97. The disallowance out of telephone expenses were made by the Assessing Officer in both the assessment years on the ground of personal use of telephone. A sum of Rs. 6,582 and Rs. 659 has been disallowed for the assessment years 1995-96 and 1996-97. The orders of the revenue authorities on this issue is just and proper and calls for no interference. Accordingly the same is confirmed and the sixth ground of appeal of the assessee is dismissed. 19. In the result all the appeals are treated as partly allowed for statistical purposes.
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2004 (10) TMI 537 - ITAT MUMBAI
Income escaping assessment, Double taxation relief ... ... ... ... ..... f the view that the Income-tax authorities were wrong in their conclusion that the appellant companies rsquo claim for exemption from capital gains on the transfer of shares under Article 13.5 of the Double Taxation treaty between India and Netherlands cannot be accepted. The ratio of the judgment of the Supreme Court in the case of Azadi Bachao Andolan (supra) is fully applicable to the facts of the present case. We, accordingly, allow the appeal of the assessee. 14. As regards Ground No. 3, the learned counsel for the assessee informed the Court that the assessee was given the relief by a rectification order of CIT(A) and as such this ground is not pressed by the assessee. Hence, we are dismissing this ground of appeal as not pressed for. 15. In the result, the appeal of the assessee is allowed in part. 16. IT A No. 4838/Mum./2004 - For the reasons mentioned above, in the case of National Westminster International Holdings B.V., we allow the appeal of the assessee, in part.
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2004 (10) TMI 536 - ITAT COCHIN
Depreciation, Civil Construction business, Method of accounting ... ... ... ... ..... Now coming to the cross-objection of the assessee, the only objection of the assessee is that the depreciation has to be granted at the rate of 40 per cent since the lorry was used for transport contract. When the business profit was estimated, normally all necessary relief under the provisions of sections 30 to 38 shall be deemed to be granted and no further relief is entitled to the assessee. In this case, even though the profit was estimated by the Assessing Officer, he has granted depreciation at the rate of 25 per cent. The grant of depreciation is also not challenged by the revenue before us. In these factual circumstances, in our view the assessee may not have any grievance with respect to grant of depreciation at the rate of 25 per cent. In view of the above, we do not find any merit in the cross objections filed by the assessee. 11. In the result, both the appeals of the revenue are allowed as indicated above and the cross-objections of the assessee stand dismissed.
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2004 (10) TMI 535 - ITAT COCHIN
Assessment - Additions to income ... ... ... ... ..... equally responsible for promoting the business of the assessee-company. Therefore, the claim of the assessee regarding the payment of commission is only an after-thought. We have also carefully gone through the return filed by the managing director and other director. They have simply disclosed that the income from other sources. There is no material to show that the income disclosed by the individual directors and the managing director was with regard to the commission said to paid by the assessee-company. In the absence of any material to corroborate the payment with regard to the commission, in our view, the claim of the assessee towards the payment of commission to the canvassing agents is not justified. After going the entire materials available on record and the facts and circumstances of the case, we find that there is no infirmity in the orders of the lower authorities. Accordingly, we confirm the same. 9. In the result, all the appeals of the assessee are dismissed.
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2004 (10) TMI 534 - CESTAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... ated 11-12-84. In this price list the appellants specifically mentioned that the price of complete fans without regulators which is being cleared and sold by the appellant and the appellant applied for permission to bring duty paid regulators in the factory and that permission was given vide letter dated 13-12-84. In these circumstances, as the appellant had declared in the price list rightly in respect of fans without regulator which they were manufacturing and they were also clearing fans and regulators under separate invoices. The Revenue was also aware that appellants were bringing regulators into the factory. The Revenue is not disputing the fact that assessment in respect of these fans were finally approved. In these circumstances, it cannot be alleged that the appellant had mis-stated and suppressed facts with intent to evade payment of duty. Therefore, the demand is time-barred and set aside. The appeal is allowed. (Dictated and pronounced in open Court on 29-10-2004)
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2004 (10) TMI 533 - CESTAT, NEW DELHI
Demand - Exemption Notification No. 6/2000 C.E. ... ... ... ... ..... the goods were cleared under exemption Notification only one price was mentioned and there was no mention of Central Excise duty. The appellant relied upon the decision in the case of Ballarpur Industries Ltd. v. CCE, Panchkula reported in 2004 60 RLT 621. In the present case, the Revenue is not disputing the fact that in the Invoice respondents did not mention excise duty separately. In these circumstances, we find ratio of the decision of this Tribunal in the case of Ballarpur Industries (supra) is fully applicable. In the above mentioned case the Tribunal has held that composite price was shown while availing full exemption on the clearance and thereafter cleared the goods on the same price on payment of duty. In such a situation it cannot be presumed that appellant had collected excise duty from the customer while availing full exemption. In view of the above decision, we find no merit in the application, the same is dismissed. (Dictated and pronounced in the open Court)
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2004 (10) TMI 532 - CESTAT, BANGALORE
Cenvat/Modvat - Erection and Commissioning charges ... ... ... ... ..... harges can be allowed as credit. 2.We have heard the learned DR and perused the record. 3.Since duty has been paid, there is no reason why credit should not be extended to the respondents herein. We, therefore, uphold the impugned order and reject the appeal. (Dictated in Court)
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2004 (10) TMI 531 - CESTAT, BANGALORE
Foreign Trade Policy ... ... ... ... ..... the case of Mudra Offset (cited supra), the Tribunal has examined all the judgments including the Apex Court judgment and held that the goods, when they are confiscable for any violation, then the goods can be seized and redemption fine and penalty can be imposed, despite the plea of bona fide belief held by the importer. In view of these judgments and also the judgment rendered by the Apex Court in the case of Western Components Ltd. v. CC, New Delhi - 2000 (115) E.L.T. 278 (S.C.), we are of the considered opinion that the appellant does not have a strong case in the matter. The valuation has been arrived at only after getting the value of the vehicle from the manufacturer i.e. Toyota Trusho Corporation, Japan. The judgment cited by the Counsel is distinguishable in the light of the Supreme Court judgment cited in the case of V. Solomon Jeyapandian and M/s. Mudra Offset cases. There is no merit in this appeal and the same is rejected. (Pronounced in open Court on 13-10-04).
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2004 (10) TMI 530 - CESTAT, BANGALORE
... ... ... ... ..... er the Act and Rules. Thus, in such a circumstance, it cannot be claimed from the appellants. This judgment has been upheld by the Apex Court as reported in 2003 (153) E.L.T. A89 (S.C.). 3.Heard learned SDR who reiterated the departmental view in the matter. 4.On a careful consideration, we notice that for the purpose of imposing penalty, in the first instance, there has to be a provision carved out by the statute. Penalty cannot be imposed in every case even if there is venial breach. The intention to evade duty and an act should be done with a view to cause revenue loss. In the present case, no such thing has happened. Furthermore, the argument raised by the Counsel why Rule 57-I is not applicable to the facts of this case is a well taken ground. In view of the facts and circumstances of the case, no penalty is imposable and, therefore, the penalty imposed in the matter is set aside by allowing these appeals with consequential relief. (Pronounced and dictated in open Court)
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2004 (10) TMI 529 - CESTAT, CHENNAI
Appeal - Limitation ... ... ... ... ..... some parallel between the instant case and the case of Indian Creation Exports v. CC, New Delhi (supra). Though nobody has a case that the Consultant in the instant case committed any fraud, he was grossly negligent in the matter of filing the appeal within the prescribed period. He misplaced the impugned order soon after its receipt from the appellants and traced it out only after more than one year. The appellants did not enquire about the progress of the appeal-filing matter during this period, either, Shri Haffex rsquo s affidavit has not taken into account this negligence of the appellants. 7. emsp In the above circumstances, we are of the view that it will be a mistake in law on our part if we condone the delay of 313 days involved in the filing, of the captioned appeal. Therefore, we reject this application and, consequently, the appeal. The application No. E/EH/237/2003 seeking early hearing of the appeal also stands dismissed. (Dictated and pronounced in open Court)
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2004 (10) TMI 528 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Exemption ... ... ... ... ..... the Notification is also relevant to the issue. 2. emsp After examining the records and considering the submissions, we find that the demand of duty on the appellants is on the entire quantity of LSHS consumed as ldquo fuel rdquo for generation of electricity during the aforesaid period. It appears to us from the relevant entry in the Notification that only those Govt. owned/controlled Electricity Undertakings which produced electricity exclusively for their own purposes stood outside the ambit of exemption. It appears from the available records that a major part of the electricity production was sold out by the assessee during the period of dispute. It further appears from the manner of use of LSHS by the appellants that the goods was used as a fuel for generating electricity. The appellants seem to have a prima facie case. Accordingly, waiver of pre-deposit and stay of recovery are granted in respect of the duty and penalty amounts. (Dictated and pronounced in open Court).
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2004 (10) TMI 527 - CESTAT, BANGALORE
Rectification of mistake ... ... ... ... ..... ould be corrected in the order. 2. emsp We have heard both the sides and perused the order. Prima facie, we find that the Commissioner (Appeals) has not confirmed the interest in the matter. However, the Revenue has not filed the ROM application in the matter. The Revenue had filed the appeal seeking interest 20 and therefore observing in the order ldquo Going through the relevant notification, we find that the Commissioner (Appeals) was correct in demanding the interest only 20 rdquo is a factual error and this sentence is to be modified. In so far as the present Respondent is concerned, the interest has not been confirmed by the Commissioner (Appeals) in the Order-in-Appeal No. 83/2001 (H-I) C.E., dated 18-5-2001. As the assessee rsquo s cross objection has not been listed for hearing, therefore, we direct the Registry to list the Cross Objection No. E/Cr.O/66/2002 for final hearing on 10th January 2005. The ROM is allowed in the above terms. (Pronounced in the open Court).
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2004 (10) TMI 526 - CESTAT, NEW DELHI
Valuation - Packing cost - Special packing ... ... ... ... ..... td., is distinguishable in that the process under dispute was carried out in the factory of manufacture. 4. emsp As against this, the contention of the Revenue is that as they are selling the stag wool in special packing GI wire/netting, the assessable value should include the cost of such packing of GI wire netting. 5. emsp There is no dispute that slag wool is cleared on payment of duty from the factory and packing in wire net was done outside the factory. This fact is admitted in para (3)(i) of the impugned order. In the case of Siddharth Tubes (supra) the tubes were galvanised in the factory of manufacture. In view of this factual difference, the ratio of the decision of the Supreme Court in the case of Siddharth Tubes is not applicable to the present case. Therefore, the cost of special packing in wire netting is not includible in the assessable value of the slag wool. The impugned order is set aside and the appeal is allowed. (Dictated and pronounced in the open Court).
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2004 (10) TMI 525 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ts of this case. The activity undertaken by the appellants is not maintenance and repair of plant but the furnace was got stuck with the inputs and the same got solidified and it required to be lanced for the purpose of re-use. Therefore, prima facie, it does not appear to be a case of mis-declaration and irregular availment of Modvat credit. In view of the prima facie nature of the case being in favour of the appellants, the stay application is allowed by granting waiver of pre-deposit in the matter. The Revenue is barred from the recovery of the disputed amounts till the disposal of the appeals. As the appeals are of the year 2000, the same is required to be heard. Ld. SDR submits that the issue has been referred to the Apex Court by the Tribunal itself and the judgment is still awaited 2000 (118) E.L.T. 92 (Tri. - LB) . The stay application and misc. application are allowed. The matter to come up for mention on 11th March, 2005. (Pronounced and dictated in the open Court).
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2004 (10) TMI 524 - CESTAT, NEW DELHI
Penalty - Annual Capacity of Production ... ... ... ... ..... o doubt the Respondents had changed the parameters of their mill and had requested the Commissioner to re-determine the Annual Capacity of Production by the end of April, 1998 but this does not make the earlier order determining their Annual Capacity of Production and fixing their liability to pay Central Excise duty inoperative. The Order will be inoperative only if the same has been revised. It was not open to the Respondents not to discharge the duty liability as per the order in existence at the material time i.e. May, 1998. Accordingly we hold that the Appellants are liable to pay penalty. However, taking into consideration all the facts and circumstances of the case we are of the view that maximum penalty imposable under Rule 96ZP(3) is not warranted to be imposed in the present proceedings. The interest of justice will be met, if a nominal penalty of Rs. 20,000/- is imposed. We order accordingly. The appeal is disposed of in these terms. (Pronounced in the Open Court).
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2004 (10) TMI 523 - CESTAT, CHENNAI
Refund - Limitation ... ... ... ... ..... a period of time. The appellants destroyed the molasses in August, 2000 and filed a refund claim later on, which was rejected as time-barred, by the original authority, which found that the duty had not been paid under protest. The decision of the original authority was upheld by the first appellate authority. Hence this appeal, wherein the interesting ground raised by the appellants is that the ldquo relevant date rdquo for computing period of limitation under Section 11B of the Central Excise Act, in this case, is the date of destruction of molasses. The duty had been paid in May/June 1996 without protest and the refund claim was filed on 31-1-2001, far beyond the one year period of limitation prescribed under Section 11B, whereunder the relevant date for computing the period of limitation was the date of payment of duty. The claim was rightly rejected as barred by limitation. The impugned order is affirmed and the appeal is rejected. (Dictated and pronounced in open Court)
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2004 (10) TMI 522 - CESTAT, NEW DELHI
Refund - Limitation - Provisional assessment ... ... ... ... ..... the difference amount from payment already made by them to the assessee. In view of these facts, it cannot be claimed by the Revenue that the incidence of duty has been borne by the assessee. As their customers had not made the entire payment to them on account of revision of the price downward with effect from July 1999, the decisions relied upon by the learned Senior Departmental Representative are not applicable as in those cases, the credit notes were issued subsequently by the assessee to their customers. We, therefore, find no reason to interfere with the finding of Commissioner (Appeals) on this aspect also and accordingly reject the Appeal filed by the Revenue. rdquo 8. emsp A perusal of the records and the order of the Tribunal makes it clear that the appellants rsquo case remains covered by the decision in the case of Universal Cylinders Ltd. The appeals filed by the Revenue cannot be accepted. They fail and are rejected. (Pronounced and dictated in the open Court).
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