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Showing 101 to 120 of 781 Records
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2007 (8) TMI 726 - GUJARAT HIGH COURT
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... ... ..... ed to be issued.” There is no dispute on the fact that the assessee has claimed the deduction under Section 80HH and 80I on the total gross income. The case of the Revenue is that he cannot claim deduction under Sections 80HH and 80I of the Act for the income pertaining to trading receipts. It is true that there is no discussion regarding separate trading income in the original assessment order, but total income has been shown. At the most, it may be a case of wrong claim by the assessee under Section 80HH, but relevant material was there before the assessing officer to disallow the claim, if he has wrongly claimed the deduction. When the material facts were before the assessing officer at the time of assessment, there is no justification to issue notice under Section 148 of the Act, after expiry of four years from the end of assessment year. Notice dated 25.11.1997 under Section 148 for reopening of the assessment is quashed and set aside. The petition stands allowed.
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2007 (8) TMI 725 - BOMBAY HIGH COURT
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... ... ..... ; 16 crores. On the other hand on behalf of the respondents, the learned counsel submits that considering the order against the appellants, the respondents should be properly secured and the petitioner shall be called upon to deposit the amount. (3) We have considered the various contentions urged On behalf of the parties. In our opinion, considering the strong prima facie case, interim relief is granted in terms of prayer clause (b) subject to the following terms (i) The appellants will deposit with respondents a sum of ₹ 2 Crores within four weeks from today. (ii) The diamonds of the value of ₹ 4.3 crores to continue to remain with the respondents as security till the final disposal of this appeal and for a period of eight weeks thereafter. (iii) The appellants to furnish bond in respect of the building in favour of the respondents, and to keep it alive till hearing and the final disposal of appeal and for a period of eight weeks thereafter.
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2007 (8) TMI 724 - CESTAT MUMBAI
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... ... ..... torage purpose and charging the same. The Department is describing this activity as equipment leasing and Service Tax levied under Banking and Financial Services. The ld. Counsel for the appellants points out that this unit is manufacturing unit and do not come under banking and financing Company. Therefore, Service Tax is not leviable. He also submits that in the earlier period the Tribunal has waived pre-deposit and granted stay vide its Order S/421-422/WZB/2007/C-I dated 01.06.07. In the light of aforesaid Order covering the earlier period in the appellants own case, pre-deposit of Service Tax and penalty are hereby waived and stay recovery thereof pending disposal of the appeal. (Dictated in Court)
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2007 (8) TMI 723 - CESTAT NEW DELHI
GTA service - Whether Service Tax in relation to goods transport service, received by a party during the period November, 1997 to June, 1998, can be recovered by issuing show cause notice in 2004.? - retrospective amendment to recovery provisions would not revive already time barred cases - matter referred to Larger Bench
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2007 (8) TMI 722 - BOMBAY HIGH COURT
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... ... ..... various Judgments and thereafter has allowed the appeal. Apart from that, the issue is already answered by the Judgment of the Supreme Court in 2006 (194) E.L.T. 3. Considering the above, we are of the opinion, that question of law would not arise. Hence appeal is dismissed with no order as to costs.
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2007 (8) TMI 721 - SUPREME COURT
Whether on the facts and the material available on record, non-adherence of the instructions as laid down in paragraphs 704 and 705 of the Manual would invalidate the departmental proceedings initiated against the respondents and rendering the consequential orders of penalty imposed upon the respondents by the authorities, as held by the High Court in the impugned order?
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2007 (8) TMI 720 - BOMBAY HIGH COURT
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... ... ..... that require determination are questions of status and the question of date from which such status would become applicable. The learned Division Bench proceeded to examine the expression "assessment" and relying on the observation of the Supreme Court in the case of Navin Chemicals Manufacturing & Trading Co. Ltd. vs. Collector of Customs, 1993 (68) E.L.T. 3 (SC) proceeded to hold that the question of determination of the status of the subject unit would be one of the stages in the process of assessment. Having so held the Court was of the opinion that it relates to rate of duty. 5) In our opinion, in the instant case the question of rate of duty or valuation would not arise in this matter. The questions as framed are questions pertaining to penalty. 6) In the light of above, we are of the opinion that the objection as raised is devoid of any merit. This Court would have jurisdiction to entertain this appeal and consequently the objection as raised is rejected.
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2007 (8) TMI 719 - BOMBAY HIGH COURT
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... ... ..... accords with the order and judgment dated 23.9.2005 of the Supreme Court? 2. Respondents waive service. 3. Considering that the Revenue has preferred an Appeal before the Supreme Court in respect of the very order and as it is the contention of the Appellant herein that the issue does not pertain either the rate of duty of classification we have admitted the matter. This Appeal, however, to be heard after the Supreme Court decides the Civil Appeal No.1169 of 2007 preferred by the Revenue. 4. Liberty to the Appellant to take out Motion, if in law they are so entitled to for interim relief.
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2007 (8) TMI 718 - DELHI HIGH COURT
Classification of goods - hether 'Ink Cartridges' and 'Toner Cartridges' used in Inkjet printers and Laserjet printers are covered under Entry No. 41 A (xxv) of the Third Schedule appended to the Delhi Value Added Tax Act, 2004? - Held that: - There is no dispute that toners and cartridges are used in the above kinds of printers. Therefore, toners and cartridges are part and accessories of goods mentioned in HSN 84.71 and therefore, covered by Entry 41A (xxv) of the DVAT Act, 2004 - appeal dismissed.
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2007 (8) TMI 717 - ITAT HYDERABAD
Income deemed to accrue or arise in India - Non-deduction of tax at source u/s 195 r/w s. 9(1)(vi) and (vii) - Payment in foreign currency made to IGTL and TDT - connectivity facility and maintenance services - facilitate call centers in India (run by assessee) to establish outbound calls to clients/people in United States of America (USA) - Assessee in default - Non-resident - DTAA between India and USA - HELD THAT:- After insertion of cl. (iva) to Expln. 2 in s. 9(1)(vi) w.e.f. 1st April, 2002 meaning of 'royalty' is very wide. There are two basic conditions for application of that definition, first is that equipment should be any industrial, commercial or scientific equipment and second is that 'use or right to use' of those equipments. In the case under consideration MUX and ancillary equipments are undoubtedly commercial equipments. The same are scientific equipment also. Thus this first condition is satisfied.
In respect of second condition, we find that IGTL allowed assessee to use or gave right to use MUX and ancillary equipments in USA so that the assessee gets connectivity facility, which facilitates assessee to establish outbound calls to clients/people in USA. Thus, the second condition is also satisfied. We, therefore, find that payment made by the assessee to the IGTL, USA party is royalty within the meaning given in cl. (iva) of Expln. 2 of s. 9(1)(vi) of the Act.
We find that impugned payment is 'royalty' in accordance with cl. (iva) to Expln. 2 of s. 9(1)(vi) which is deemed to accrue or arise in India. All income accrues or arises or is deemed to accrue or arise in India is chargeable under the provisions of this Act. Sec. 195 provides that any person responsible for paying to non-resident any other sum chargeable under the provisions of this Act shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rates in force. We find that the impugned transaction under consideration satisfied all the conditions stipulated in section, therefore, the assessee is liable to deduct tax at source from both types of payments for availing connectivity facility and for availing maintenance services as both payments are in the nature of 'royalty'. We confirm the order of CIT(A) though on different reasons and grounds.
Deduction of tax at source from payments made to TDT - Royalty is the transfer of the 'right in respect of the property'. The two transfers are distinct and have different legal effects. In one, rights are purchased which enables use of those rights, while in the other the purchase is involved, only the right to use has been granted. Ownership denotes the relationship between a person and an object forming the subject-matter of his ownership. It consists of a complex of rights all of which rights are rights in property, being good against all the world and not merely against a specific person and such rights are indeterminate in duration and residuary in character. That sum may be agreed for the transfer of one right, two rights and so on but not the ownership. Thus, the definition in respect of software, etc. does not extend to the outright purchase of the right to use an asset.
A payment for the absolute assignment and ownership of rights transferred is not a payment for the use of something belonging to another party and therefore, not royalty. In an outright transfer to be treated as sale/purchase of property as opposed to licence, alienation of all rights in the property is necessary.
Thus, we find that the said payment was not for transfer of absolute assignment and ownership of 'True Dial Software'. The transaction clearly falls under the definition of 'royalty' as defined in s. 9(1)(vi) Expln. 2(iva). The assessee acquired only right to use of 'True Dial Software'. It is 'royalty' and royalty payment to NRI is deemed to accrue and arise in India and therefore, payment is subject to TDS. We, therefore, confirm the orders of the lower authorities.
In the result, appeals of the assessee are dismissed.
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2007 (8) TMI 716 - ALLAHABAD HIGH COURT
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... ... ..... hese cases and gift tax assessment was made in the same ward where the assessee was being assessed. The Tribunal, therefore, observed that there was no difficulty for the Income Tax Officer to know from the record whether these persons were existing or not. Besides that, affidavits were also filed. In the circumstances, the Tribunal interfered with the addition made by the Assessing Officer and set aside his order as well that of the Commissioner of Income Tax (Appeals). 4. It is a case where perhaps two views were possible and it is noted above that the tax liability is ₹ 53,312/-. The Central Board of Direct Taxes has come out with a circular that where the tax liability is less than ₹ 5,00,000/-, such matters should not be carried in appeal. 5. In view of the above, we do not think that this Court should interfere. Otherwise also, we do not find that this is a case involving substantial question of law which ought to be entertained. 6. The appeal is dismissed.
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2007 (8) TMI 715 - ITAT DELHI
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... ... ..... course after providing reasonable opportunity of being heard to the assessee and as per law. 29. Ground No. 4 Through this ground the assessee has challenged the charging of additional interest of ₹ 1,42,06,445 under section 234B of the Income-tax Act. 30. In the appellate order the learned CIT (Appeals) has observed that Assessing Officer has not adjudicated this issue and the ground arose only from computation in ITNS 150 only. He, therefore, directed the Assessing Officer to look into this aspect from case records of various years and then apply provisions of section 115JA. Thus, the matter has been restored by the learned CIT (Appeals) to the Assessing Officer. We only add that charging of interest under the aforesaid section is consequential. The Assessing Officer shall recalculate the charging of interest if any, while giving effect to the appellate order. We order accordingly. 31. In the result, assessee’s appeal is partly allowed for statistical purposes.
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2007 (8) TMI 714 - CESTAT AHMEDABAD
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... ... ..... e issue is decided by the Larger Bench of the Tribunal in the case of M/s.Amitex Silk Mills Pvt. Ltd. 2006(72)RLT11(LB) laying down that the value of deemed exports is also to be taken into account for determining of the FOB value, which will be permitted to be sold in the domestic market. We note that subsequently number of identical appeals have decided by the Tribunal by following the above Larger Bench decision. Accordingly, we find no merits in the Revenue’s appeals and reject the same.
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2007 (8) TMI 713 - MADRAS HIGH COURT
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... ... ..... TR 588) has taken the view as follows - "There was clearly mutuality amongst the contributors and participators of a chit fund with their identity being known and well established. Hence, contributions made to the chit fund could not be treated as revenue expenditure nor could the payment and receipt of any amount to any from the chit fund be treated as the business activity of the assessee. The transactions involved did not give rise to any income assessable to income-tax nor any revenue loss in respect of which any deduction could be claimed. Therefore, the Tribunal was right in disallowing the assessee's claim of loss in the chit fund account during the year in question. We are in complete agreement with the reasoning given by the Punjab and Haryana High Court. 6. For the foregoing reasons, we are of the view that there is no question of law muchless substantial question of law involved in this appeal so as to entertain the same. The tax case appeal is dismissed.
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2007 (8) TMI 712 - CESTAT KOLKATA
Fake and forged DEPB - clearance of 26 import consignments free of Customs Duty - evasion of duty - Held that: -the duty not paid/escaped using the forged/fraudulent DEPB claim itself dragged the Appellant to the adjudication. Their tainted deal, no way exonerates them from the process of adjudication.
Legal Fraud vitiates everything even judgments and orders of the Court. If a transaction has been originally founded on fraud, the original vice will continue to taint it, and not only is the person who has committed fraud is precluded from deriving any benefit under it, but also who derive advantage of it.
There is no scope at all to interfere to the order of adjudication confirming the duty demand which has been passed after thorough enquiry.
Time Limitation - Held that: - the duty not paid/escaped using the forged/fraudulent DEPB claim itself dragged the Appellant to the adjudication. Their tainted deal, no way exonerates them from the process of adjudication.
The appeal relating to the duty demand is rejected and appeal relating to imposition of penalty is allowed by Remand.
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2007 (8) TMI 711 - SC ORDER
Valuation - the decision in the case of NEHA INTERCONTINENTAL (P) LTD. Versus COMMISSIONER OF CUSTOMS, GOA [2006 (5) TMI 279 - CESTAT, MUMBAI] contested, where it was held that the evidence on record is not sufficient to discard the transaction value, which is therefore required to be accepted - Held that: - the decision in the above case upheld - appeal dismissed.
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2007 (8) TMI 710 - SC ORDER
Validity of SCN - SSI Exemption - clubbing of clearances - dummy units - Held that: - the show cause notice given by the Department itself proceeds on the basis that the factory of the assessee consisted of different units (plants); that it was one single factory consisting of separate units; that sugar and molasses came under one of the units, paper and paper board came in the other unit and that chemicals came in the third unit. In the circumstances, the assessee-respondent was entitled to the benefit of exemption notification - It is not even alleged in the show cause notice that there are three factories as submitted on behalf of the Department - appeal dismissed.
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2007 (8) TMI 709 - DELHI HIGH COURT
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... ... ..... entioned in the Memorandum of Association is with respect to buying and selling of shares but that was neither the business of the assessee nor is there any material on record to show that the assessee was regularly dealing in shares. 7. The Supreme Court in Raja Bahadur Kamakhya Narain Singh v. CIT 1970 77 ITR 253, took the view that the treatment given to a transaction in the books of account is of importance. As noted above, the assessee had shown its shareholding in JPIL as an investment and not a stock-in-trade of business. As already noted, there is nothing to show that the shares were converted into stock-in-trade. 8. Under these circumstances, the Commissioner as well as the Tribunal were justified in holding that the claim of the assessee for capital gains was justified and that the Assessing Officer was not correct in taking the income of the assessee from the sale of shares as business income. 9. No substantial question of law arises in this appeal. 10. Dismissed.
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2007 (8) TMI 708 - ALLAHABAD HIGH COURT
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... ... ..... r before the Assessing Authority or Appellate Authority or before the Tribunal the question of allowing the breakage in the revision filed under Section 11 of the Act does not arise. Conclusion 21. In view of the foregoing discussions, we are of the considered opinion that the applicant is not entitled for claiming benefit of allowance of breakage. The other questions of law which have been raised in the revision regarding checking of books of account and determining the turn over by best judgment assessment are essentially questions of facts which cannot be interfered with by this Court in exercise of powers under Section 11 of the Act as held by the Apex Court in the cases of Kumaon Tractors and Motors (supra) and Mohan Brickfield (supra). 22. Before parting with the case, we would like to place on record our appreciation to the valuable assistance rendered by Sri Krishna Agrawal in resolving the issue involved herein. 23. In the result the revision fails and is dismissed.
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2007 (8) TMI 707 - GUJARAT HIGH COURT
Constitutional validity of the Central Government Notification - Classification of goods - “Flavoured milk of animal origin” - classifiable under Chapter 0402 - Exemption from duty - HELD THAT:- In view of the Notification, the authority which has issued the show-cause notice on 16-4-2007 would simply proceed on the basis of the said classification code given by the Central Government in the Notification dated 15-6-2007 to which the petitioners have already given reply on 10-7-2007.
We are of the view that looking to the subject matter of the controversy raised in the petition, this appears to be an eminently fit case where the petitioners should make a representation to the Central Government. Accordingly, if the petitioners make such a representation within one week from today, it is expected that the Central Government will decide the same as expeditiously as possible and preferably within one month from the date of receipt of the representation.
As regards pendency of the proceedings arising from the show-cause notice, it will be open to the petitioners to make a request before the Commissioner of Central Excise to adjourn the hearing suitably so as to await the decision of the Central Government on the representation. We are sure that such a request will be considered by the Commissioner in the proper perspective when the matter comes up for hearing before the Commissioner on 16-8-2007.
The petition stands disposed of in the above terms.
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