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Case Laws
Showing 141 to 160 of 228 Records
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1994 (8) TMI 94 - CEGAT, NEW DELHI
Pump - Sump pump ... ... ... ... ..... o occurring in the Table to the notification. Once this distinction between ldquo primarily designed rdquo and ldquo exclusively designed rdquo is grasped it follows straightaway that a pump which pumps water in which there may be foreign matter, whether dissolved or suspended would be eligible for the benefit of the notification. Indeed the reference in the brochure to water that contains sand, mud, sludge, etc. or ash laden water in thermal power stations itself shows that it is primarily water that is to be pumped out and the sold particles are secondary in content. As a matter of fact, this Tribunal has itself held in the case of CCE v. Fair Bank Morse (I) Ltd. 1993 (68) E.L.T. 153 (Tribunal) that a sewage disposal pump is designed to handle liquid. It has, therefore, to be held that the pumps in question are eligible to the benefit of the notification. 5. emsp In the result, we allow the appeals setting aside the orders appealed against with consequential relief, if any.
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1994 (8) TMI 93 - CEGAT, NEW DELHI
Valuation on the basis of price of `Identical goods’ ... ... ... ... ..... tion to the goods and in rem, it will not be correct to read in the orders under Section 47 or Section 51 of the Act any inhibition upon the jurisdiction of the proper officer to act under Sections 110, 111, and 113 of the Act. rdquo This decision of the Division Bench of the Madras High Court was, further, followed by the same High Court in another case of M/s. M.M. Joyce Industries v. Union of India - 1992 (38) E.C.C. 339. 7. In view of the above, the contentions of the appellants in this regard are not sustainable. 8. emsp As regards the penalty on the appellant, Parmod Agarwal, it has been brought out in evidence that he played a dominant role in arranging for the import and clearance thereof and as such the penalty on him is warranted and the quantum thereof is also not very high and the penalty on the firm is also reasonable in the circumstances of the case. In the result, there is no need to interfere with the order passed by the Collector and the appeals are rejected.
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1994 (8) TMI 92 - CEGAT, NEW DELHI
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... ... ..... the Revenue. 10. emsp The issue pertaining to the classification under Chapter 28 has not been examined by the lower authorities. The assessee is claiming the classification under Chapter Heading 28.25 of Central Excise Tariff which reads as follows ldquo 28.25. 2825.00 Hydrazine and hydroxylamine and their inorganic salts other inorganic bases other metal oxides, hydroxides and peroxides V. SALT AND PEROXYSALTS, OF INORGANIC ACIDS AND METALS 15 The Learned Advocate submitted that this product is organic compound and, therefore, the heading claimed by them is not appropriate. As this issue has not been examined by the lower authorities, it is but proper that the issue be re-examined by the lower authorities to classify the product in its proper heading. We, therefore, remand the matter to the Assistant Collector for re-adjudication having regard to our observations in this order and after granting a hearing to the appellants. 11. Thus, the appeal is allowed by way of remand.
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1994 (8) TMI 91 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... rdingly, we are of the view that issue itself is not free from doubt in the absence of any authority on this issue. It is clear from the wordings of Section 35C(2) of the Central Excises and Salt Act, 1944 that all mistakes cannot be rectified and only mistake which is apparent from the record is required to be rectified. In the case of T.S. Balaram, Income Tax Officer v. M/s. Volkart Brothers, Bombay and Others, it was clearly held by the Supreme Court that a mistake apparent from the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. In view of this legal position and taking into consideration of the fact that power of the third Member in entertaining fresh evidence is not free from doubt, we are of the view that mistake in the instant case is not apparent from record and, accordingly, the ROM application filed by the applicants is disposed of.
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1994 (8) TMI 90 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... reported in 1993 (64) E.L.T. 129, the Tribunal has held that the plea of wrong advice by Advocate is not acceptable when there is no affidavit of the Advocate to the effect that he had given advice to the appellant. In view of the decision of the Tribunal quoted above, I am inclined to agree with the order passed by the Member Judicial that in the facts and circumstances of the case the stay petition is required to be rejected and the applicants are to be directed to deposit the entire amount within a period of eight weeks. Dated 28-7-1994 Sd/- (P.K. Kapoor) Member (T) MAJORITY ORDER In terms of the majority order, the stay petition is rejected and the applicants are directed to deposit the entire duty amount of Rs. 1,26,086.90 as demanded in the impugned orders, within a period of eight weeks from the date of receipt of this order. Registry to list the case for mention to report compliance thereafter. Dated 4-8-1994 Sd/- Gowri Shankar Member (T) Sd/- S.L. Peeran Member (J)
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1994 (8) TMI 89 - CEGAT, NEW DELHI
Stay/dispensation of pre-deposit ... ... ... ... ..... an amended classification list but did not do so. Hence, the need for invoking the extended period. 12 emsp We have considered the above submissions. We observe that prima facie the appellants appear to have a good case and the department has not been able to show at this stage the existence of sufficient justification for invoking the extended period in any case. The contention of the appellant that their production and clearance was well within the prescribed limits for SSI has not been disputed or shown to be wrong and the implications of not having obtained a SSI certificate at an earlier stage or not having filed an amended classification list at best arguable, and can be considered more appropriately at the time of hearing of the main appeal. 13. emsp Looking to the totality of the facts and circumstances and noting the above aspects in particular, we grant the request, waive the pre-deposit of amount in question and stay its recovery during the pendency of this appeal.
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1994 (8) TMI 88 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... 1978, on which date he approved the declaration filed by the appellant and intimated it of its entitlement to the notification. In any event we fail to see how it can be said that the appellant had suppressed any material facts or made any wilful mis-statement. The declaration was clear that it was a value under Sec. 4 which was being furnished. The declaration itself indicated the quantity of goods produced and cleared. The appellant had thus given sufficient data to the department to enable him to determine whether it was entitled to the benefit of the notification. It was easy enough for the department on the basis of data furnished by the appellant to calculate the value of clearances based on tariff value and to take appropriate action thereafter. This has not been done, and each of the four show cause notices is barred by limitation. In the light of this position, we do not consider it necessary to go into the merits of the case. 6. In the result, the appeal is allowed.
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1994 (8) TMI 87 - ITAT NAGPUR
Accounting Year, Assessment Year, Profits And Gains ... ... ... ... ..... cases only. It is notable that the amendments later on made relating to section 44AC of the Act came into force with effect from 1-4-1989 and has to apply in relation to assessment year 1989-90 and subsequent years. The provisions relating to collection of tax under section 206C of the Act came into force with effect from 1-6-1988. It is, therefore, obvious that the two sections have to be read together and a harmonious construction has to be given to them to make them effective. At the same time an interpretation which creates some factional meaning to the section cannot be accepted. We are, therefore, of the opinion that as this section has been brought in the Act with effect from 1-4-1988 only, the transactions made by the assessee up to 31-3-1988 have to be excluded. Any other interpretation would be against law and cause unintended hardship to the assessee. Accordingly, we uphold the order of the Dy. CIT (Appeals). 4. In the result, the departmental appeal is dismissed.
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1994 (8) TMI 86 - ITAT NAGPUR
Appellate Authority, Assessing Officer, Assessment Order, Income Returned, Penalty For Concealment, Search And Seizure
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1994 (8) TMI 83 - ITAT JAIPUR
... ...
... ... ..... as been challenged on the ground that such expenses are not fully vouched and no details are available and the excise officials have denied reimbursement of such expenses by the licensees to them. If what the Revenue has contended were to be accepted, even the amount allowed by the Assessing Officer should not have been allowed but we agree with the observation of the learned CIT(A) that looking to the nature of the assessee s business and the general social conditions and conditions of the law and order such expenses have got to be incurred by persons who are in this type of trade. It is, therefore, merely a question of estimate as to how such expenses could have been allowed and we have no reason to hold that the estimate made by the Assessing Officer was superior to the estimate made by the learned CIT(A). We, therefore, dismiss the objection of the Revenue. 10. Accordingly, while the appeal filed by the assessee is partly allowed, appeal filed by the Revenue is dismissed.
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1994 (8) TMI 81 - ITAT JAIPUR
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... ... ..... e held to be applicable in this case. Our view finds support from the decision in the case of CIT vs. Reliance International Corpn. (1994) 120 CTR (Del) 225 (1994) 73 Taxman 679 (Del) and CBDT Circular No. 495, dt. 22nd Sept., 1987 mentioned in that judgment. 5. Taking all these factors into account we hold that in the first instance it cannot be said from the Pratigya Patra, dt. 14th Sept., 1974, with certainty that even the physical possession of the land was handed over to the transferee on that date and secondly even if it can be accepted that the physical possession of the immovable property was handed over to the transferee on 14th Sept., 1974, since admittedly the transfer was not effected through a registered sale deed, it was not a transfer in the eye of law and hence no capital gain could be charged on the alleged transfer in the assessment year under consideration. 6. We, therefore, uphold the order of the learned CIT(A) and dismiss the appeal filed by the Revenue.
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1994 (8) TMI 79 - ITAT JAIPUR
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... ... ..... lating to the entitlement of the assessee to various exemptions/deductions as provided in ss. 53, 54E, 54F and 80T of the Act. The same may well be considered in the case of the HUF of Shri Bakhtwar Singh according to law. 18. In view of the above discussion, the appeals filed by Shri Raghunath Singh HUF and Shri Dinesh Singh, in whose hands the capital gain had been assessed protectively and who wanted such assessments on substantive basis, are bound to fail. The appeal of Shri Bakhtwar Singh individual, in whose hands the entire capital gain has been assessed, has to be allowed and the addition made to be deleted. 19. In the result, the appeal of Shri Bakhtwar Singh (ITA No. 35/JP/91 is allowed and the addition made in his hands on account of capital gain in respect of the transfer of the properties situated on plot Nos. 207C and 214C is hereby deleted. Appeals of Shri Raghunath Singh HUF (specified) (ITA No. 34/JP/91) and Shri Dinesh Singh (ITA No. 33/JP/91) are dismissed.
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1994 (8) TMI 77 - ITAT INDORE
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... ... ..... n. Further, such interest accrues from year to year and assessment of interest in the year in which the order was passed by the Court was not proper. 23. This being the law of the land, even the amount of Rs. 8,608 would not be taxable during the asst. yr. 1982-83 and would have to be bifurcated during the years in which the same has accrued, from the date of the possession of the acquired land which was handed over on the 6th July, 1961, as against the year in which it was finally determined by the High Court s order. The plea of the assessee thus succeeds. 24. In the result, while assessee s appeal ITA No. 866/Ind/89 is allowed, the 2 Departmental appeals ITA 891 and 892/Ind/89 stand dismissed. However, if any part of the interest is found to be taxable in any earlier years in terms of the ratio of the apex Court decision in the case of CIT vs. Khorshed Shapoor Chinai and Ors. referred to supra, the Department would be free to do so in accordance with the provisions of law.
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1994 (8) TMI 76 - ITAT HYDERABAD-B
Business Income ... ... ... ... ..... (P.) Ltd. s case is of no help to the Revenue, because in that case the lessee was the owner of the property. We do not see any merit in the cross-objections of the Revenue on this aspect, as in our opinion, the CIT(A) rightly directed the ITO to assess the rental income as business income. 16. As regards depreciation on the amount incurred by the assessee for raising the building, and certain other expenditure related to the said amount, we agree with the Revenue that the same cannot be allowed, as the entire expenditure on construction has been allowed as revenue expenditure. Therefore, as we have already stated above, the depreciation and other allowances if any, allowed, have to be withdrawn. Similarly, the allowance of 1/24th and 1/25th of the expenditure on construction allowed in assessment year 1986-87 has also to be withdrawn consequently. 17. In the result, assessee s appeals are allowed and Revenue s cross-objections are dismissed subject to our obove observations
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1994 (8) TMI 75 - ITAT DELHI-D
... ...
... ... ..... not disputed that in the year under appeal the sales had gone up as compared to the preceding assessment year and the G.P. rate shown is also higher. In other words, the assessee has been showing the G.P. rate which it has earned and this is likely to vary from year to year and cannot be a static figure. As rightly observed by the CIT(A) the comparable cases are in fact not comparable and this factual finding have not been challenged before us on the part of the Revenue. In the final analysis, we accept the trading results of the assessee and delete the addition sustained by the CIT(A). 17. As a result of the discussion in the preceding paras the appeals of the Revenue as also the assessee stand disposed of. The cross-objection becomes infructuous in view of the disposal of the aforesaid grounds and does not call for any separate adjudication on our part. 18. In the result, the Revenue s appeal and the cross-objection stand dismissed whereas the assessee s appeal is allowed.
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1994 (8) TMI 74 - ITAT DELHI-B
... ...
... ... ..... ies. It was also observed that this position would continue till the Supreme Court reverses the judgment of the High Court. 4. In view of the non-consideration of the above, mistake has crept in the order of the Tribunal in the sense that the decision of the Madras High Court in Km. A.B. Shanti vs. Asstt. Director of Inspection, Investigation (1992) 197 ITR 330 (Mad) wherein the vires was challenged and the decision was that the provisions of s. 269SS was ultra vires. This decision was stayed by the Supreme Court. No doubt this was noted in the order but, the issue regarding the dicta laid down by the Madras High Court would be of binding nature as observed by the Andhra Pradesh High Court was omitted to be given its due consideration. In this light, we are of the view that in the interest of natural justice and fair play, the order should be recalled, which we do. The case shall be posted accordingly for fresh hearing. In the result, the Miscellaneous Application is allowed.
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1994 (8) TMI 73 - ITAT DELHI
Accounting Year, Advance Tax, Advertisement Expenditure, Assessing Officer, Assessment Order, Business Income, Business Loss, Interest Payable By Assessee, Late Filing, Sale Proceeds, Winnings From Lottery
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1994 (8) TMI 72 - ITAT COCHIN
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... ... ..... vs. CIT (ITRC Nos. 184 to 187 of 1982 dt. 2nd Sept., 1988) and also the decision of the Tribunal (Bangalore Bench) in the case of M/s Woodlands Hotel, the CIT(A) held that depreciation allowable to a plant may be allowed in respect of the studio. The learned Departmental representative submitted that none of the above decisions refer to studio and hence the CIT(A) was not justified in allowing the claim of the assessee. On the other hand, Shri Prasad, learned counsel for the assessee, submitted that the important point in these decisions is the functional test to ascertain whether a building can be treated as plant . On this, there is no material on record to oust the CIT(A) s finding. Having regard to the rival submissions, we hold that the studio should be treated as a plant. The ITO is directed to grant depreciation on the studio at the rate applicable to plant . 16. In the result, the appeals of the assessee are allowed in part and the appeal of the Revenue is dismissed.
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1994 (8) TMI 71 - ITAT COCHIN
... ...
... ... ..... bate originally allowed is liable to be withdrawn. A careful reading of the decision of the High Court would make us believe that the observations of the High Court to the effect that the two sections 155 and 147(b) are not mutually exclusive should be read in the context of existence of special circumstances warranting invocation of wider powers conferred by s. 147(b) of the Act. The judgment itself refers to the existence of special circumstances . We have already held that on the first two grounds on which reopening was made were only due to change of opinion. Then what is left is only the quantification of the correct amount of tax liability which can be done under the powers conferred to the authorities under s. 59 of the ED Act, 1953. In other words we hold that their existed no special circumstance in the case of the assessee to invoke the ratio laid down by the Hon ble Kerala High Court. Thus, we uphold the order of the CIT(A). In the result, the appeal is dismissed.
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1994 (8) TMI 70 - ITAT COCHIN
... ...
... ... ..... . 2 above, extracted the order of the Tribunal referred to by both the sides. For the reasons stated therein, we hold that (a) the learned CIT(A) is justified in holding that the sum of Rs. 1,00,62,986 is to be considered as part of the book profit of the assessee (b) the learned CIT(A) is justified in excluding the sum of Rs. 87,38,257 from the book profit of the assessee-company and (c) the learned CIT(A) is not justified in not considering the depreciation of Rs. 75,46,881 being the additional depreciation consequent upon the change in the method of accounting from straight line method of written down value method. For the detailed reasons given in our order dt. 31st March, 1993 in ITA No. 400(Coch)/91, referred to above, we direct the Assessing Officer to take 30 the book profit at Rs. 1,14,51,101 (Rs. 1,14,51,101) in the place of the figure worked out by learned CIT(A). 7. In the result, the assessee s appeal is partly allowed and the Departmental appeals are dismissed.
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