|
Advanced Search Options
Case Laws
Showing 101 to 120 of 608 Records
-
2004 (7) TMI 606 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... Sec. 113(d) of the Customs Act are not applicable in the case of goods which are not prohibited for export (it is the exporter rsquo s case before me that the goods are not prohibited and it is their further case that the Commissioner has accepted that the goods are not prohibited goods which will be considered in detail when the appeals are taken up for final hearing.) 14. emsp I, therefore, agree with the ld. Member (Technical) that further pre-deposit of duty and penalty are required to be waived and recovery stayed thereof pending the appeals. The file is returned to the original bench for passing the majority order. Sd/- Jyoti Balasundaram, Member (J) FINAL ORDER 15. emsp In view of the order of the ld. Member (Judicial) Mrs. Jyoti Balasundaram, further pre-deposit requirements are waived and recovery thereof stayed, pending hearing of these appeals. 16. emsp The appeals are posted for final hearing on 9-9-2004. Sd/- Krishna Kumar, Member (J) Sd/- S.S. Sekhon Member (T)
-
2004 (7) TMI 605 - CESTAT, CHENNAI
Appeal to Commissioner (Appeals) - Non-appearance ... ... ... ... ..... uling of the CEGAT in the case of Lodha Fabrics v. CCE reported in 1989 (42) E.L.T. 712 that the Commissioner (Appeals) has no jurisdiction to dismiss an appeal for non-appearance. Similar view has been taken by the Tribunal in the case of CCE, Mumbai - VI v. Raptakos Brett and Co. reported in 2001 (136) E.L.T. 460. Therefore, if the Commissioner felt that in spite of a number of adjournments given to the party, they have not represented, it was open to the Commissioner to decide the appeal on merits based on records. Since in the present case he has not done this exercise and chose to dismiss the appeal for non-representation, I hold that the order impugned is not legal and proper and I set aside the impugned order and remand the matter to the Commissioner (Appeals), to decide the issue on merits in accordance with law. I am not expressing any opinion on the merits of the case. 6. emsp The SO/246/04 also stands disposed of accordingly. (Dictated and pronounced in open court)
-
2004 (7) TMI 604 - CESTAT, BANGALORE
Penalty - Quantum, enhancement of ... ... ... ... ..... the Director respectively, which was not in terms of the Show Cause Notice. The Commissioner cannot raise a fresh ground to initiate imposition of penalty under Rule 209A which was not the subject-matter of Show Cause Notice. Therefore, he cannot also enhance the penalty 50 times more than the original penalty imposed on the appellant company, which is also not sustainable. In the overall facts and circumstances of the case, we find that once the Commissioner has dropped the demands against M/s. Eros Pharma (P) Ltd. against whom the allegation of manufacture and clearance of goods was made, then in view of this circumstance, invocation of Rule 209A against the appellant as an abettor does not arise and the proceedings were required to have been dropped against the appellants also. The submissions made by the appellants have strong force and are sustainable. The penalties are not sustainable and they are set aside by allowing the appeals. (Pronounced in open Court on 23-7-04)
-
2004 (7) TMI 603 - ITAT DELHI
... ...
... ... ..... s been preferred by the assessee. 13. The first ground deals with charging of interest under section 234B. In so far as the first ground of C.O. of the assessee is concerned, we do not find any merit in the same. The order of assessment does refer to the charging of interest and, therefore, it cannot be said that there was no direction for levy of interest in the order of assessment. We endorse the conclusion drawn by the CIT(A) to the fact that charging of interest under section 234B was consequential in nature. 14. The second ground of objection is in relation to the maintainability of the appeal of the Revenue on the plea that the grounds of appeal have not been signed by the Assessing Officer but by the CIT. While dealing with the appeal of the Revenue, we have already dismissed the same on merits and therefore, the aforesaid objection can be considered to be merely academic in nature and hence we refrain from adjudicating the same. 15. Accordingly, the CO is disposed of.
-
2004 (7) TMI 602 - ITAT DELHI
Disallowance of software expenditure as revenue expenditure - Treatment of repair and maintenance expenditure as capital expenditure - HELD THAT:- Perused the record available on file and have gone through the case laws relied upon by both the parties. We find that the case law relied upon by the learned D.R. is distinguishable on facts. In that case the assessee purchased a building for a sum of Rs. 17,000 in 1937 which at the time was a ginning factory. He ran the factory till 1940. In the year 1945, he converted it into a cinema theatre and exhibited films therein. During the period October 1960 to March 1961, the assessee extensively repaired the theatre by expending substantial amounts. The amounts spent by him were on machinery Rs. 16,002, on new furniture Rs. 27,889, on sanitary fittings Rs. 5,225 and on replacement of electrical wiring Rs. 13,604. In addition thereto, a total amount of Rs. 62,977 was spent on extensive repairs to the walls, to the hall, to the flooring and roofing, to doors and windows and to the stage sides. The theatre had to be closed during the period the repairs were effected. It was held by the Hon’ble Supreme Court that what the assessee did was not mere repairs but a total renovation of the theatre. New machinery, new furniture, new sanitary fittings and new electrical wiring were installed besides extensively repairing the structure of the building. It was further held that by no stretch of imagination could the said repairs qualify as "current repairs" within the meaning of Income-tax Act.
In the instant case the assessee has incurred the expenditure on repairs and maintenance of premises taken on lease by him for business purposes. The nature and magnitude of the expenditure on repairs and maintenance of these leased premises is such that it cannot be said that expenditure was one time, which would result in enduring benefit to the assessee. The case laws relied by the assessee and discussed earlier in our order support the contention of the assessee squarely. Therefore, the addition made by the Assessing Officer and sustained by the CIT(A) on this count is deleted.
In the result, assessee’s appeal stands allowed.
-
2004 (7) TMI 601 - ITAT HYDERABAD
Charitable/religious institutions ... ... ... ... ..... n account of non mention of the year clearly. Considering the peculiar circumstances of the case, we are of the view that the application filed by the assessee in Form No. 56D should have been treated as pertaining to the assessment year 2000-01 and the concerned officer ought to have considered the application in accordance with law after giving an opportunity of being heard. 8. In the interests of natural justice, we hereby set aside the matter to the file of the Assessing Officer who is directed to reconsider the issue in accordance with law i.e., after verifying as to whether the concerned authority has granted exemption or rejected the application. Needless to observe that if one wing of the department would not act upon the application of the assessee, either by misconstruing it as the one filed for earlier year or do not pass orders expeditiously, the assessee cannot be put to sufferance in the form of denial of exemption. The Assessing Officer is directed accordingly.
-
2004 (7) TMI 600 - ITAT BANGALORE
Deductions - Profits and gains from infrastructure undertakings ... ... ... ... ..... d. v. CIT 1991 191 ITR 656 (SC) did not really depart from this view, because the latter decision against cold storage was only on the ground that preservation is different from processing and not by diluting the concept of processing in any manner. We are aware that there is a hairline difference between the word lsquo process rsquo and lsquo manufacture rsquo , but we are supposed to see the same in the light of intention of the Legislature in introducing section 80-IA and also whether any new article or a thing has been oozed out, using the raw material consumed in the same. In our considered opinion, we are of the view that the appeal of the assessee deserves to be allowed. The stand of the learned CIT(A) is reversed. Accordingly, the assessee is entitled to deduction. 4. As we have decided the main issue in favour of the assessee, the levy of interest under sections 234B and 234C of the Act is consequential in nature. In the result, the appeal of the assessee is allowed.
-
2004 (7) TMI 599 - ITAT BANGALORE
... ...
... ... ..... does not provide that the brought forward losses will first be set off even to compute the profit eligible for deduction. We accordingly hold that brought forward business losses is not to be reduced for computing profits of business eligible for deduction under section 80HHE. In the present example, the eligible profit will be Rs. 72,78,339 and not Rs. 35,15,070 as computed by the Assessing Officer. At the same time, the deduction under section 80HHE will be restricted to the extent of gross total income even though the amount allowable for deduction under section 80HHE is higher than such sum. 11. As regards the ground relating to profit of Rs. 36,230, the profit of eligible business is to be computed as per Explanation to section 80HHE. Since such sum is forming part of profits of business as computed under the head lsquo Profits and gains of business rsquo , the same is not to be excluded from the profits of eligible business. In the result, the appeal is partly allowed.
-
2004 (7) TMI 598 - ITAT MUMBAI
Business expenditure, Advertisement expenditure, Deductions - Exporter ... ... ... ... ..... total turnover for quantifying deduction under section 80HHC. It was stated that such other income is not includible in total turnover though it is a part of business income. On the other hand, the ld. DR relied upon the order of the Assessing Officer. 30. Having considered the rival submissions, we find that the Assessing Officer has held in his order that Since the money has been received from the activity related to the business and the assessee itself has shown this income as business income, it is very difficult to hold that this do not fall part of the turnover. Therefore, the other income of Rs. 490.53 lakhs excluding dividend and property income and interest income is consi-dered as part of the turnover . We do not find any infirmity in the above observation of the Assessing Officer. We, therefore, hold that this additional ground raised by the assessee is devoid of merit and hence the same is rejected. 31. In the result, appeal of the assessee stands partly allowed.
-
2004 (7) TMI 597 - ITAT DELHI
Remission or cessation of trading liabilities - Treatment of amount received for booking of flat u/s 41(1) - HELD THAT:- During the course of hearing a specific query was asked from the assessee’s counsel about the present status of this amount and in response thereto it was submitted that this amount still shown in the books of account of the assessee and it has not been claimed so far by the legal heirs of Shri Sudershan Kapoor. Since his membership was cancelled in the year 1999 and thereafter no claim of refund was made either by Shri Sudershan Kapoor in his life time or his legal heirs after his death, there is no possibility of any claim or refund in future because it is barred by limitation.
Since this amount has not been paid to the legal heirs of Shri Sudershan Kapoor, I am of the view that the lower authorities have rightly treated this amount as income of the assessee. Moreover, I do not find any force in the contention of the assessee that section 41(1) cannot be invoked in the instant case because the assessee was engaged in the construction business and the amount was received as an advance of booking of flat, which was shown by the assessee as a trade liability. Once the trade liability is ceased to exist, it becomes an income of the assessee under the provisions of section 41(1) of the I.T Act. I, therefore, do not find any merit in the assessee’s appeal. Accordingly, I dismiss the same.
In the result, the appeal filed by the assessee, is dismissed.
-
2004 (7) TMI 596 - ITAT BANGALORE
Capital gains ... ... ... ... ..... ilding. In the present case before us, admittedly, the building is on short-term gains and the long-term gains are from the land appurtenant thereof. The basic requirement for claiming deduction under section 54 is that the capital gains should arise from the transfer of long-term capital asset being building or land appurtenant thereof and being a residential house. . . . Admittedly, in the present case before us, the super structure is clearly in the nature of short-term capital gains, so the Miscellaneous Petition as preferred by the assessee has no merit. We have not found anything contrary in the order of the Tribunal dated 28-1-1999 on the basis of which it can be rectified. If we take the contention of the assessee to be true, then it will be a review of the order which power we do not have. Under these circumstances, there is no merit in the contention of the learned counsel for the assessee. We hold accordingly. In the result, the miscellaneous petition is dismissed.
-
2004 (7) TMI 595 - CESTAT, NEW DELHI
Payment of duty - Government dues ... ... ... ... ..... in pursuance to the deposit of the presentation of the cheque. The amounts were credited on the next day in Govt. account and the date of presentation of cheque is the date on which they can take credit. The respondent relied upon the Board Circular No. 86/2003-Cus., dated 3-10-2003 where it was clarified that in respect of Central Excise Duty and Service Tax, the date of payment will be the date of presentation of the cheque in the bank subject to realisation of the cheque. In the present case, the cheques were not dishonoured by the bank. In view of the above, I find no merit in the appeal, the same is dismissed. (Order dictated in the open Court.)
-
2004 (7) TMI 594 - ITAT DELHI
Civil construction business ... ... ... ... ..... imed any depreciation which has been disallowed by the Assessing Officer. Therefore, we are not inclined to adjudicate this ground of the assessee, and, therefore, the same is dismissed. 10. The second ground taken by the assessee is as under. That on facts and circumstances of this case, the ld. CIT(A) has erred in not allowing the expenditure actually incurred at Rs. 44,14,495 for job work undertaken through four parties namely Sb MZ Hussain, Ram Tirath, Ram Bilas and Sharma Wood Works even while admitting fresh evidence but simply on the reason that the parties could not be produced either before the Assessing Officer and/or before the ld. CIT(A) and thereby estimating net income by applying profit rate of 8 on the contractual receipts which agreed to only to avoid litigation . 11. In the light of our order in ITA No. 96/Delhi/2001 this ground also is dismissed. 12. In the result the appeal filed by the department is allowed and the C.O. filed by the assessee is dismissed.
-
2004 (7) TMI 593 - CESTAT, BANGALORE
Demand and penalty ... ... ... ... ..... ument that the manufacture is shown, but is also shown in their monthly report/in form RT-12 return. Application for export was filed for the goods and bond amount was also debited and the same was certified by Central Excise Officers. Since the procedures have been liberalized and these are the only controlling documents submitted to the department and these documents show that there had been production and clearance for export under bond. Therefore appellants were required to produce proof of export of the goods within six months from the date of clearance. Since they failed to do so, duty was correctly demanded. The Commissioner (Appeals) have given detailed finding in Para 5 of his order and we do not find any reason to differ with him. Show cause notice is not time barred as the goods were not exported in terms of bond executed for export of the goods. emsp 6.We therefore do not see any merit in the appeal and the same is rejected. (Pronounced in open Court on 27-7-2004)
-
2004 (7) TMI 592 - CESTAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... or to maintain any record. This exemption has been provided by proviso to non-tariff notification no. 29/98, dated 4-6-1998. Therefore, neither the goods lying in the shop of the appellants from where they are trading nor in the factory could be legally seized, as no duty was payable in respect thereof by them. From the Panchnama prepared at the time of seizure of the goods at the shop of the appellants, the invoices, bills were seized by the officers, but there is nothing on the record to suggest if from that record it revealed that the appellants have crossed the specified limit, so as to enable the officers to order the confiscation of the goods and impose penalty on the appellants for non-maintaining the record. 3.In view of the discussion made above, the impugned order of the Commissioner (Appeals) is set aside in toto and the appeals of the appellants are accepted with, consequential relief, if any, permissible under the law. (Dictated and pronounced in the open Court)
-
2004 (7) TMI 590 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... ered, in the following decision a. Vikram Plastic 1996 (88) E.L.T. 247 b. P.A.C. Systems (P) Ltd. 1992 (58) E.L.T. 131 (T) c. Metalman Pine Manufacturing Co. Ltd. 1997 (91) E.L.T. 382 (T) . The Hon rsquo ble Supreme Court dismissed the appeal filed by the Department as reported in 2002 (141) E.L.T. A191 d. Sterlite Industries (I) Pvt. Ltd. 1999 (105) E.L.T. 637 (T) e. Goodluck Industries 1999 (108) E.L.T. 818 (T) . The Hon rsquo ble Supreme Court dismissed the appeal filed by the Department as reported in 2002 (123) E.L.T. A 66 . f. Bombay Tyre International 2000 (123) E.L.T. 826 (T) . 4.But the latest decision reported in 2003 (157) E.L.T. 277 (Tri. - Mum.), Commissioner of Customs, Ahmedabad v. Guru Ashish Ship Breakers is against the proposition sought to be relied upon by the assessee. There appears no prima facie case. Therefore, the appellant is directed to deposit the entire amount in demand and compliance to be reported by 27-9-2004. (Pronounced in Court on 23-7-2004)
-
2004 (7) TMI 588 - CESTAT, MUMBAI
Refund - Limitation - Relevant date ... ... ... ... ..... y filed a refund application within six months from the date of receipt of the assessment order. In the light of the fact the assessment orders are received much later than the date of payment of Service Tax. The computation of six months should start only from that date as otherwise it would lead to gross injustice. The Advocate argued that since the application for refund was made within six months from the date of receipt of the assessment order, it should not be held that the claim is time barred. 5. emsp I have carefully considered the rival contentions. I find that the provision of law in this regard is very clear. A refund application is required to be made within six months from the date of payment under Section 11B of the Central Excise Act. In this case the claim is not made within the statutory period and therefore is liable to be rejected. 6. emsp I see no infirmity in the order of the Commissioner (Appeals). The appeal is therefore rejected. (Pronounced in Court)
-
2004 (7) TMI 587 - CESTAT, CHENNAI
Rate of duty - Special Additional Duty (SAD) ... ... ... ... ..... on. It was held that such goods were liable to duty at the rate in force at the time of clearance. The ratio of this decision of the apex court can be applied to the instant case. At the time of the clearance, the subject-goods were chargeable to SAD at the rate of 8 under Section 3A(1) of the Customs Tariff Act. That duty was paid by the respondents. The Revenue was entitled to collect such duty till the Central Government by the above Notification specified the rate of SAD on the goods as 4 of its value. The respondents were not entitled to claim refund of any part of the duty, which they paid at the rate of 8 . Hence the order of the Commissioner (Appeals) giving the benefit of the Notification retrospectively to the subject goods cannot be sustained and the order of the original authority which is in accordance with law requires to be restored. It is ordered accordingly. The Revenue rsquo s appeal is allowed. (Operative part already pronounced in open Court on 15-7-2004).
-
2004 (7) TMI 586 - CESTAT, NEW DELHI
... ...
... ... ..... enue again issued a notice for further enhancement of the price on the ground that the appellants are not entitled for 10 discount. We find as per the Para IV Standing Order No. 11/99, dated 27-12-1999 import from the manufacturer is entitled for the discount of 10 from the PLATT Rate. 7. emsp Further Para (VI) of Standing order allowed the discount of 25 from the PLATT price. This Standing order is amended by Standing Order No. 9/2000 whereby Para VI is amended to the effect that in place of 25 discount a discount of 35 from PLATT price is allowed in respect of reprocessed granules. There is no amendment in respect of Para (IV) of Standing Order dated 27-12-1999. Therefore, the disallowance of 10 discount in view of Para (IV) of Standing Order dated 27-12-99 is not sustainable. The impugned order is set aside and the appeals are allowed. The appellants are entitled for consequential relief, if any, in accordance with law. (Dictated and pronounced in open Court on 28-7-2004).
-
2004 (7) TMI 585 - CESTAT, BANGALORE
Demand - Limitation ... ... ... ... ..... in the matter. The Commissioner has also noted that even if the appellants had paid duty they would have availed the facility of Modvat on the goods received by them and even would have passed on the duty paid by them to their customers, wherever possible. The assessees started paying duty when the officers visited their factory on 24-7-1997. The Department knew about the assessee not having paid the duty after the introduction of Note 10 of Chapter 28. They could have saved limitation by issuing notice immediately. The Department had also kept quite till 21-1-1998 to issue the show cause notice. Therefore, the finding recorded by the Commissioner that the assessee cannot be faulted for the lapse of the Department in issuing show cause notice is a correct order. We have also noted that the Commissioner has also taken into consideration several judgments on time-bar cited by the assessees. In the result, we do not find any merit in the Revenue appeal and the same is rejected.
............
|
