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Showing 141 to 160 of 931 Records
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2008 (8) TMI 908
Deemed dividend addition u/s 2(22)(e) - Whether the Tribunal was right in holding that out of ₹ 15 lakhs undisclosed income admitted by the assessee, to have received from another person, only ₹ 10 lakhs had to be treated as undisclosed income of the assessee when said transaction was not reflected in the books of account of the assessee ? - HELD THAT:- On persual of Tribunal's order, it is clear that the Tribunal has given a categorical finding for deleting the addition of ₹ 5 lakhs i.e., only ₹ 10 lakhs has been seized from the business premises of the assessee and also mere statement that ₹ 15 lakhs were received from one Senthil, which had been found true by the AO and further, the said sum was not even recorded in the books of Senthil. It is the question of fact and it is not a perverse order and the reasoning given by the Tribunal is based on valid materials and we do not find any illegality in the order of the Tribunal. Therefore, the order passed by the Tribunal is confirmed.
Whether the Tribunal was right in holding that the interest free amounts received and returned by the assessee to the company in which she is a director, cannot be treated as deemed dividend u/s. 2(22)(e) in the hands of the assessee? - Here also the Tribunal has given a categorical finding that the amount was given only in the course of the business and also the said amount was returned subsequently. The sale transaction did not materialise and hence, the amount was returned. It is the question of fact and we find no error or illegality in the order of the Tribunal and the same is confirmed.
It is also further brought to our notice the recent circular issued by the Central Board, in Instruction No. 5 of 2008, dt. 15th May, 2008, prescribes the conditions for filing appeal to the Tribunal, High Court and Supreme Court - The tax effect in each tax case is less than ₹ 4 lakhs and also there is no dispute regarding the same. The said appeals are also filed after 15th May, 2008. Therefore, considering the same, the appeals filed by the Department are not maintainable in view of the circular.
In these circumstances, we are of the view that the above tax case appeals are dismissed on merits as well as jurisdiction.
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2008 (8) TMI 907
Issues Involved:
1. Applicability of Section 45(4) of the Income-tax Act in the case of retirement of a partner.
2. Consideration of family arrangement as a 'transfer' for the purpose of capital gains.
Summary:
Issue 1: Applicability of Section 45(4) of the Income-tax Act in the case of retirement of a partner
The revenue appealed against the Commissioner of Income-tax (Appeals) for deleting the addition made on account of long-term capital gains, arguing that section 45(4) should be invoked. The assessee, a partnership firm, did not compute capital gain upon the retirement of a partner, Smt. Parama Devi, who was allotted a property as part of a family arrangement. The Assessing Officer disagreed, citing the judgment of the Hon'ble Bombay High Court in CIT v. A.N. Naik Associates, which brought such cases under the purview of section 45(4). However, the Commissioner of Income-tax (Appeals) relied on ITAT's decision in G.K. Enterprises and other judicial precedents, concluding that section 45(4) does not apply to the retirement of a partner and that a family arrangement is not a 'transfer' for capital gains purposes.
Issue 2: Consideration of family arrangement as a 'transfer' for the purpose of capital gains
The learned counsel for the assessee argued that the 'transfer' occurred due to a family arrangement, which should not attract capital gains tax. The Commissioner of Income-tax (Appeals) accepted this argument, noting that the family arrangement was bona fide and aimed at maintaining family harmony. The Tribunal in Kay Arr Enterprises had previously held that transfers under family arrangements do not fall under section 2(47) and are not subject to capital gains tax. The Hon'ble Madras High Court affirmed this view, stating that family arrangements to avoid litigation among family members do not constitute a 'transfer' for capital gains purposes.
Conclusion:
The Tribunal confirmed the order of the Commissioner of Income-tax (Appeals), holding that section 45(4) is not attracted in the case of the retirement of a single partner and that the family arrangement does not amount to a 'transfer' for capital gains purposes. The appeal by the revenue was dismissed.
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2008 (8) TMI 906
Rejection of the books of accounts - application of the net profit rate and allowing depreciation separately claimed by the assessee - HELD THAT:- We do not find any illegality in the finding recorded by the Tribunal that the profit assessed on the gross receipts is arrived at by taking into consideration all allowable expenses and no further deduction on account of depreciation can be separately allowed.
Therefore, there is no merit in the present appeals. Hence, the same are dismissed.
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2008 (8) TMI 905
Issues:
1. Classification of acquired lands as wet or dry lands for compensation.
2. Determination of compensation for acquired lands based on crop cultivation.
Classification of acquired lands: The judgment involves the issue of determining whether the acquired lands should be classified as wet or dry lands for compensation purposes. The Reference Court initially classified the lands as dry lands based on the claimants' protest application. However, upon reviewing the protest applications submitted by the claimants, which described the lands as irrigated lands, the High Court found the Reference Court's classification as dry lands untenable. The High Court set aside the classification and deemed the lands to be wet lands, considering the claimants' descriptions in the protest applications.
Determination of compensation: Another issue addressed in the judgment is the determination of compensation for the acquired lands based on the crop cultivated. The High Court referred to a previous case related to the acquisition of lands for the same purpose and village, where compensation amounts were specified for dry and wet lands. In the current case, the lands were used for sugarcane cultivation, with an average yield of 40 tons per acre. Considering the prevailing rate of sugarcane in 1998, the High Court calculated the compensation amount to be around &8377; 1,32,000 per acre. However, since the claimants sought &8377; 1,74,000 per acre, the High Court restricted the award to the claimed amount. Ultimately, the appeals were allowed, and compensation was granted at the rate of &8377; 1,74,000 per acre, inclusive of costs and statutory benefits.
This judgment clarifies the classification of acquired lands as wet lands based on the claimants' descriptions and addresses the determination of compensation considering the crop cultivation on the lands. The High Court's decision highlights the importance of accurate classification and valuation of lands for fair compensation in acquisition cases, ensuring that claimants receive just and appropriate remuneration for their acquired properties.
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2008 (8) TMI 904
Modvat Credit - Adjustment under Section 145-A - Meaning of ''Modvat'' - Variation in excise duty paid by procuring raw materials and discharge of excise duty liability on non-finished goods - whether entire balance whatever in the Modvat account is to be added to closing stock while giving effect to the s. 145A of the Act - effect of the s. 145A to opening stock - Assessee submitted that the guidelines issued by the institute clearly show that in both i.e., inclusive and exclusive methods for Modvat, the profit remains unchanged and therefore the effect on Modvat credit available at the end of the financial year is nil.
AO did not accept submissions because there was no addition of unutilized Modvat credit to the closing stock of the assessee in the earlier year - accordingly made the addition - CIT(A) decided the issue against the assessee.
HELD THAT:- Modvat is a procedure whereby manufacturer can utilize credit for input duty against duty payable on final products. Duty credit taken on input is of the nature of set off available against the excise duty payable on the final products.
It may be pointed out that the 'inclusive method' is not permitted by AS-2 which is made mandatory from accounting year beginning on or after 1st April, 1999. Further, in the Guidance Note on Accounting for Modvat the second method (inclusive method) has been withdrawn with effect from accounting year commencing from 1st April, 1999. In view of the above, the adjustments u/s. 145A will have to be made in all cases where 'exclusive method' is followed.
We noticed that if an assessee has followed the procedure as laid down by the ICAI and tax auditor reported this aspect in cl. 12(b) in Form 3CD of tax audit report, in such case the point remained to examine is allowability of amount of excise duty which has been adjusted in closing stock of finished goods. No doubt the excise duty adjusted to the closing stock is an allowable revenue expenses. The addition of entire balance in Modvat account is not proper because the nature of this account is personal account, an item of assets side of the balance sheet which always have a debit balance.
It may be noted that after making the addition to the closing stock u/s 145A, it will be possible to claim a separate deduction for excise duty actually paid after the year end but before the due date for filing the return of income on production of evidence as provided u/s 43B.
The contention of the assessee is that the assessee has given effect to the s. 145A. The ld AR in support of that filed a chart and demonstrated accordingly. Such detailed working is also given in tax audit report as required in cl. 12(b) of Form 3CD. But submissions of ld AR and deduction u/s 43B in accordance with discussion are subject to verification therefore, we send the matter back to the file of the AO for limited purpose to verify the facts of the case of assessee.
If the AO finds that the assessee has given effect to s. 145A and also deduction u/s. 43B is made as per discussion, the addition made by him u/s 145A may be deleted. Thus, the grounds of appeal raised by the assessee in this regard are treated as allowed for statistical purposes.
Now we take the second aspect of the matter. The ld AR submitted that effect of the s. 145A to opening stock is also to be given - On consideration of s. 145A and CBDT circular explaining the provisions of s. 145A and judgment of the Delhi High Court in CIT vs. Mahavir Aluminium Ltd.[2007 (11) TMI 41 - HIGH COURT OF DELHI]. we noted that when the adjustments are made in the valuation of inventories, this will affect both the opening as well as closing stock. Whatever adjustment is made in the valuation of closing stock, the same will be reflected in the opening stock also irrespective of any consequences on the computation of income for tax purposes. We further noticed that s. 145A starts with the non obstante clause "notwithstanding anything to the contrary contained in s. 145".
Therefore, to give effect to s. 145A, the opening stock as on 1st April, 1998 will have to be increased by any tax, duty, cess or fee actually paid or incurred with reference to such stock if the same has not been added for the purpose of valuation in the accounts. The AO is directed to give the effect of s. 145A as per discussion.
In the result, the appeal of the assessee is allowed for statistical purposes.
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2008 (8) TMI 903
Issues Involved:
1. Validity of assessment under Section 143(3) without mandatory notice under Section 143(2).
2. Validity of assessment under Section 144 without adequate opportunity of being heard.
3. Addition of Rs. 11,00,000 on account of an unproved gift and further addition of 10% on imaginary commission.
4. Rejection of books of accounts and disallowance of Rs. 11,56,208 for unverifiable, excessive, and unreasonable expenses.
5. Disallowance of Rs. 2,29,250 out of transport commission as excessive.
6. General validity of the assessment order.
7. Charging of interest under Sections 234B and 234D.
Detailed Analysis:
1. Validity of Assessment under Section 143(3) without Mandatory Notice under Section 143(2):
The appellant did not press this ground, and it was dismissed as not pressed.
2. Validity of Assessment under Section 144 without Adequate Opportunity of Being Heard:
This ground was considered general and did not require adjudication. Thus, it was not decided.
3. Addition of Rs. 11,00,000 on Account of Unproved Gift and Further Addition of 10% on Imaginary Commission:
The appellant received a gift of Rs. 10,00,000 from Mr. Ashutosh Varshney, confirmed through a gift deed and bank transactions. The AO doubted the genuineness due to lack of close relation and occasion, and added Rs. 11,00,000 (including 10% commission). The CIT(A) confirmed this addition.
Upon review, the Tribunal found:
- The donor confirmed the gift in his statement.
- The gift was made through an account payee cheque.
- The donor's financial capacity was established.
- The AO's suspicion was based on assumptions without concrete evidence.
The Tribunal concluded that the gift was genuine and deleted the addition of Rs. 11,00,000.
4. Rejection of Books of Accounts and Disallowance of Rs. 11,56,208 for Unverifiable, Excessive, and Unreasonable Expenses:
The AO rejected the books of accounts due to non-production of GR slips and estimated freight payment at 85% of receipts, disallowing Rs. 11,56,208. The CIT(A) confirmed this.
The Tribunal found:
- The appellant maintained truck receipt slips containing all necessary details.
- The books of accounts were produced and impounded by the AO.
- The AO's comparison with other cases was not valid as they were not confronted with the appellant and were not comparable.
The Tribunal held that the disallowance was ad hoc and not sustainable, and deleted the addition of Rs. 11,56,208.
5. Disallowance of Rs. 2,29,250 out of Transport Commission as Excessive:
The AO disallowed 50% of the commission paid to the appellant's son, Mr. Vinod Kumar Gupta, considering it excessive. The CIT(A) confirmed this.
The Tribunal found:
- Mr. Vinod Kumar Gupta was engaged in similar business and earned commission from other transporters as well.
- The commission rate was consistent over the years and accepted by the AO in subsequent years.
The Tribunal concluded that the disallowance was based on assumptions and deleted the addition of Rs. 2,29,250.
6. General Validity of the Assessment Order:
This ground was not specifically addressed as the issues were covered under other grounds.
7. Charging of Interest under Sections 234B and 234D:
The charging of interest was deemed consequential and mandatory, and thus upheld.
Conclusion:
The appeal was partly allowed, with significant deletions of additions made by the AO and CIT(A), establishing the genuineness of the gift and the validity of the appellant's books of accounts and commission payments.
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2008 (8) TMI 902
Petition against Order passed by the CIT - Mistake application filled u/s 264 - Deduction u/s 80-IB(3) - late filing of the return - sufficient cause - condonation of delay under proviso to s. 264(3) - manufactures plastic granules - HELD THAT:- The CIT has not examined the aspects of the matter which we have set out. We are of the view that there was sufficient cause for having made the application after a delay of about seven and a half months. The CIT ought to have condoned the delay. As indicated, the delay was on account of a bona fide mistake and is not visited by any mala fides or any element of recklessness. The petitioner has also been able to show that the claim was not made earlier because legal advice on that account was not forthcoming.
The petitioner had no reason not to have claimed it at an earlier point of time. He did not do so because the requisite advice from its tax department had not been rendered. This can certainly be treated as a sufficient cause for condonation of delay, particularly in the light of the provisions of proviso to s. 264(3) as well as the provisions of s. 5 of the Limitation Act, 1963.
Consequently, we set aside the order of the CIT and remit the matter to the CIT for a decision on merits.
The writ petition stands allowed.
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2008 (8) TMI 901
Whether the forfeiture of security deposit is without authority of law and without any binding contract between the parties and also contrary to Section 5 of the Contract Act?
Whether the writ petition is maintainable in a claim arising out of a breach of contract?
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2008 (8) TMI 900
Issues Involved:
1. Delay in filing and re-filing the Criminal Revision Petition.
2. Sufficiency of the cause for condoning the delay.
3. Examination of the merits of the case by the High Court.
Detailed Analysis:
1. Delay in Filing and Re-filing the Criminal Revision Petition:
The appellant challenged the order of the Delhi High Court, which dismissed the Criminal Revision Petition (Crl.R.P.No.356/2004) due to inordinate delay in filing and re-filing. The respondent was apprehended based on allegations of being a member of a terrorist outfit and was subsequently discharged by the Addl. Sessions Judge due to lack of prima facie legal evidence. The appellant filed the revision petition along with an application for condoning the delay. The High Court dismissed the petition, stating that the delay was unexplained.
2. Sufficiency of the Cause for Condoning the Delay:
The Supreme Court emphasized that the proof of sufficient cause is a condition precedent for exercising judicial discretion. The Court referred to several precedents, including *N. Balakrishnan v. M. Krishnamurthy* and *New India Insurance Co. Ltd. v. Shanti Misra*, which advocate a liberal construction of "sufficient cause" to ensure substantial justice. The Court noted that the explanation for the delay, which involved procedural mishaps and bureaucratic delays, was plausible. The Court highlighted that the State should not be treated differently from private litigants in such matters, as public interest could suffer due to procedural delays.
3. Examination of the Merits of the Case by the High Court:
The Supreme Court found that the High Court did not adequately address the explanations provided by the appellant for the delay. The High Court's summary rejection of the delay explanation was deemed incorrect. The Supreme Court underscored that the High Court should have examined the correctness of the explanation in light of established legal principles. The Supreme Court set aside the High Court's order and remitted the matter for a decision on merits, clarifying that no opinion on the merits of the case was expressed.
Conclusion:
The Supreme Court allowed the appeal, condoning the delay, and remitted the matter to the High Court for disposal on merits, emphasizing a justice-oriented approach over technicalities.
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2008 (8) TMI 899
The High Court of Calcutta dismissed the appeal (CEXA No. 52 of 2008) as the Department's demand was time-barred and suffered from legal infirmity. The Tribunal's decision was upheld, and no substantial question of law was found. All parties were instructed to act on a xerox signed copy of the order.
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2008 (8) TMI 898
Issues involved:
1. Allowability of expenditure for a paper project in Saharanpur as revenue expenditure.
2. Grant of extra shift allowance on the cost of electric installations.
Issue 1: Allowability of expenditure for a paper project in Saharanpur as revenue expenditure:
The assessee spent &8377;63,291 to explore the possibility of setting up a paper project in Saharanpur. The Assessing Officer disallowed the expense, stating it should be capitalized. However, the CIT(A) allowed it as revenue expenditure, citing past instances and the company's objectives. The Tribunal upheld this decision, noting that no enduring benefit was acquired, and the plant was not set up. The Tribunal's view was deemed correct, and the expenditure was considered revenue in nature, leading to a ruling in favor of the assessee.
Issue 2: Grant of extra shift allowance on the cost of electric installations:
The issue was found to be covered by a previous judgment in CIT v. Mahavir Spinning Mills Ltd. Following the reasoning in the mentioned case, the question was answered against the revenue and in favor of the assessee. The reference was disposed of accordingly.
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2008 (8) TMI 897
Block assessment u/s 154B - Addition as undisclosed income - basis of certain bank statements discovered during the ''post search inquiry'' - Gift received from non-resident individuals found in the course of a search.
HELD THAT:- The Tribunal placed reliance on the decision of this Court in CIT v. Ravi Kant Jain [2001 (3) TMI 52 - DELHI HIGH COURT] hold that the computing of undisclosed income pursuant to a search operation can only be done on the basis of evidence found as a result of search. It is therefore, clear that the assessment in the block period can only be done on the basis of the evidence found as a result of search.
Following the same, we feel that the finding returned by the Tribunal in the impugned judgment with regard to the bank statements cannot be interfered with.
In Vishal Aggarwal [2005 (5) TMI 33 - DELHI HIGH COURT] the Tribunal in a similar situation had returned the finding that there was nothing in the assessment order to show that any evidence was found during the search to suggest that the gifts were bogus. The gifts having been declared in the returns of income, fell outside the purview of Chapter XIV-B of the Income Tax Act, 1961. In such a similar situation, this Court in Vishal Aggarwal (Supra), did not interfere with the findings and conclusions returned by the Tribunal and was of the view that no substantial question of law arose for the consideration of this Court.
We also take a similar view and find that no interference with the impugned order of the Tribunal is called for on this ground also.
The appeal is dismissed.
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2008 (8) TMI 896
Assessee, job worker, engaged in processing of fabrics – concessional rate of duty paid on man made fabrics containing polyster below 70% - the issue squarely covered by the decision in the case of COMMISSIONER OF C. EX., MUMBAI Versus LAJYA DYEING & BKEACHING WORKS [2008 (2) TMI 41 - SUPREME COURT], where it was held that there is no legal requirement for processors to verify the correctness of declaration furnished by owners.
Also, there is no proof of collusion between the supplier and the assessee - appeal dismissed.
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2008 (8) TMI 895
Issues:
- Disposal of stay petitions involving identical issues arising from 3 different impugned orders confirming demands of duties, interest, and penalties against multiple appellants.
- Allegations of wrongful availing of credit of countervailing duty on imported inputs not received by the appellants in their factories.
- Reliance on evidence like non-stamping of lorry receipts, diversion of imported ingots, and clandestine manufacture of final product.
- Appellants' contentions of duty-paid raw material being received, recorded in CENVAT account, and used in final product manufacture.
- Denial of opportunity for cross-examination of witnesses by the Adjudicating Authority.
- Violation of principles of natural justice in passing impugned orders without considering detailed submissions and denying cross-examination.
- Prima facie merits in appellants' submissions for cross-examination and adjudication based on material evidence doubting reliability of statements relied upon by Revenue.
Analysis:
The judgment by the Appellate Tribunal CESTAT AHMEDABAD involved the disposal of stay petitions related to demands of duties, interest, and penalties against multiple appellants. The issue revolved around the wrongful availing of credit of countervailing duty on imported inputs not received by the appellants in their factories. The Adjudicating Authority relied on evidence such as non-stamping of lorry receipts and diversion of imported ingots to support the allegations. However, the appellants argued that duty-paid raw material was received, recorded, and used in final product manufacture. They raised concerns over the denial of the opportunity for cross-examination of witnesses, violating principles of natural justice.
The Tribunal found merit in the appellants' submissions, highlighting the need for cross-examination to verify the reliability of statements relied upon by the Revenue. It emphasized the importance of offering witnesses for cross-examination, especially when statements are disputed and material evidence questions their correctness. The judgment emphasized the appellants' right to challenge and question the evidence presented against them, ensuring a fair adjudication process. As a result, the stay petitions were unconditionally allowed, impugned orders were set aside, and the matter was remanded for fresh decision after cross-examination and consideration of detailed submissions made by the appellants. The appellants were granted the liberty to raise further pleas based on the outcomes of cross-examination, ensuring a fair and thorough review of the case.
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2008 (8) TMI 894
Deduction on bad debt - word "established" - Whether even after the amendment to s. 36(1)(vii) which after amendment provides that deduction on account of bad debt should be allowed once the same is established to have been written off in the books of accounts without proving anything else, the Tribunal was correct in law in upholding the disallowance on the ground that the assessee appellant had failed to prove that the debt had become irrecoverable? - HELD THAT:- It is apparent that prior to amendment, the assessee could claim deduction on account of bad debt, only if it was established that any debt or part thereof had become a bad debt in the previous year. The legislature in its wisdom chose to amend the Act and the amended provision is absolutely clear that once the assessee writes off any bad debt or any part thereof as being irrecoverable, the assessee is entitled to claim deduction for the same.
The word "established" has been deleted from the amended provision. The intention of the legislature is absolutely clear that the assessee is no longer required to establish that the debt is bad. He has only to prove that he has written off the debt in his books of accounts as a bad debt. Once he writes off the debt as being irrecoverable, his claim for deduction cannot be rejected on the ground that debt has not been established to have become irrecoverable debt.
In view of the clear-cut language of the Sec. 36(2)(iii) and the distinction between the unamended and amended provisions, there is no manner of doubt that the intention of the legislature was that the assessee was entitled to claim deduction in case he, in his books of account, had written off the debt as a bad debt. In our view the language is crystal clear and brooks of no other interpretation.
As per the amended provisions of the IT Act, 1961 once the debt has been written off as a bad debt, it is not the requirement of law that the assessee should establish that the debt has in fact become bad. The reason behind this is that after amendment to s. 36(2), in case the assessee recovers any part of the debt the same is assessable as his income in the year when the debt is recovered.
In view of the above discussion, the question is answered in favour of the assessee and against the Revenue.
Appeal filed by the assessee is allowed and disposed of accordingly.
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2008 (8) TMI 893
The Supreme Court dismissed the Civil Appeal regarding the determination of whether Sofema SA, New Delhi, is a Permanent Establishment under the Double Taxation Avoidance Agreement for Assessment Year 1997-98. The Court found that there was no evidence or justification from the Department to show that Sofema SA is a PE, leading to the dismissal of the appeal.
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2008 (8) TMI 892
Issues Involved:
1. Legitimacy of the defense case.
2. Compliance with mandatory provisions of Section 55 of the Narcotic Drugs and Psychotropic Substance Act, 1985.
3. Delay in sending samples to the Forensic Science Laboratory (FSL).
4. Bias due to the investigating officer being the complainant.
Issue-wise Detailed Analysis:
1. Legitimacy of the Defense Case:
The appellant contended that he was falsely implicated by Inspector Jarnail Singh due to a personal grudge stemming from a vehicular accident on 26.7.1997. The defense presented a written apology (Ex. DB) and complaints (Ex. DC and Ex. DD) to substantiate this claim. However, the court found the document of apology dubious as it lacked the signature of Inspector Jarnail Singh and was not corroborated during cross-examination. The complaints were produced only during the examination of Gurdial Singh, the appellant's father, and their receipt was not proven. Consequently, the court deemed the defense version untrustworthy and rejected it.
2. Compliance with Mandatory Provisions of Section 55 of the Act:
The appellant argued that there was non-compliance with Section 55 of the Act, which mandates that the officer in charge of a police station affix their seal on seized articles. The court referred to the Supreme Court's decision in *Karnail Singh v. State of Rajasthan* which clarified that compliance with Section 55 is not necessary if the seized articles are forwarded to an officer empowered under Section 53. In this case, the samples were handed over to Inspector Baldev Singh (PW 1), who maintained their integrity. The court found no prejudice caused to the appellant due to the handling of the samples, thus dismissing this contention.
3. Delay in Sending Samples to the Forensic Science Laboratory (FSL):
The appellant argued that the 40-day delay in sending the samples to the FSL rendered the prosecution's case doubtful. The court noted that the recovery of opium from the appellant was corroborated by reliable witnesses, including DSP SS Mann. The integrity of the samples was maintained, as evidenced by the intact seals when received by the Chemical Examiner. The court concluded that the delay did not prejudice the appellant and rejected this argument.
4. Bias Due to the Investigating Officer Being the Complainant:
The appellant contended that Inspector Jarnail Singh, being the complainant, should not have been the investigating officer. The court referred to the decision in *State v. V. Jayapaul*, which held that an investigating officer can investigate a case even if they are the complainant, unless bias is proven. The court found no evidence of bias or unfair investigation, noting that the defense's version was a fabricated story. Thus, this contention was also dismissed.
Conclusion:
The Supreme Court upheld the conviction and sentence of the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substance Act, 1985. The court found no merit in the appeal and dismissed it, directing the appellant to serve the remaining sentence as per the law.
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2008 (8) TMI 891
Valuation - new machine - rejection of transaction value - rebuttal evidence in the form of another Chartered Engineer’s Certificate - Held that: - the transaction value of second-hand machineries cannot be rejected in the absence of any contemporary import of identical goods at identical prices - the Transaction Value is accepted while restricting the RF and penalty to 10% and 5% respectively - appeal allowed - decided partly in favor of appellant.
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2008 (8) TMI 890
Valuation - Superior Kerosene Oil (SKO) - Liquefied Petroleum Gas (LPG) - ONGC is paying Excise duty on a value which is declared as assessable value, but this price is different from what they are collecting from their customers, namely HPCL, BPCL, IBP and IOCL - Held that: - There is no dispute that additional consideration which is paid by the oil marketing companies has been paid out of the subsidy from oil pool account and not received from ultimate consumers - appeal allowed - decided in favor of appellant.
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2008 (8) TMI 889
Issues involved: Refund claim rejection u/s Priya Blue Industries Ltd. v. Commissioner case and time-barred claim.
In the case before the Appellate Tribunal CESTAT BANGALORE, the issue involved was the rejection of refund claims by the Original Authority based on two grounds. Firstly, the assessment was not challenged by the appellants, citing the Priya Blue Industries Ltd. v. Commissioner case, which deemed the refund claim inadmissible. Secondly, the refund claim was considered time-barred as it was not filed within the statutory period.
The learned advocate for the appellant, a renowned Institute namely Indian Institute of Science, argued that the failure to claim the benefit of exemption notification under Customs Notification No. 51/96 at the time of import was due to a clerical error. He referenced the Aditya Birla Nuvo Ltd. v. CC, Bangalore case, where it was held that the filing of a refund claim itself constitutes a challenge to the assessment order. The advocate contended that the clerical error could be corrected u/s Section 154 of the Customs Act at any point in time, and the Priya Blue case should not be applicable in this scenario.
Upon careful consideration, the Member (T) found that the Original and Appellate Authorities did not address the appellant's submission regarding the clerical error preventing the refund claim. It was also noted that the claims were filed within the statutory limits, contrary to the finding that they were time-barred. In the interest of justice, the matter was remanded to the Original Authority for a de novo decision within two months, with the appellants given an opportunity for a personal hearing and required to produce all evidence relied upon.
This judgment highlights the importance of considering all aspects of a case, including clerical errors and statutory timelines, in determining the admissibility of refund claims and ensuring a fair opportunity for parties to present their case before the authorities.
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9911796707
