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Case Laws
Showing 161 to 180 of 644 Records
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2005 (1) TMI 593 - ITAT MUMBAI
Interest on borrowed capital ... ... ... ... ..... Core Health Care Ltd. 2001 251 ITR 61 (Guj.), we find no fault with the impugned order of ld. CIT(A) in allowing deduction for the interest payment of Rs. 5,53,47,977 and so we decline to interfere with the same. 15. In the result, revenue rsquo s appeal No. 3108/Mum./99 for assessment year 1995-96 is dismissed. 16. Now we take up ITA No. 3962/Mum./99 for assessment year 1996-97. The revenue has raised 8 grounds of appeal, similar to those raised in its appeal for assessment year 1995-96. Grounds 6 to 8 are general. Ground Nos. 1 to 5 constitute single issue identical to that raised in assessment year 1995-96. The facts, being identical, we follow our decision rendered above in assessment year 1995-96 on similar issue contained ground Nos. 1 to 5 raised therein and in turn, uphold the impugned order of ld. CIT(A) in allowing deduction for interest payment of Rs. 7,78,22,167. 17. In the result, this appeal No. 3962/Mum./1999 of revenue for assessment year 1996-97 is dismissed.
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2005 (1) TMI 592 - ITAT MUMBAI
Estimation of profits ... ... ... ... ..... re is no escalation clause which will enable the assessee to recoup such increased cost from the sub-developers and partnership firm. It is also stated that the amount of Rs. 31,29,37,580 also includes of Rs. 6,25,00,000 being credit given by partnership firm for construction to development rights to the assessee as capital contribution. After considering all these factors, the estimated surplus will not exceed Rs. 200 crores, which is much less than 7.5 disclosed by the assessee. By his second Remand Report, the Assessing Officer has almost accepted the method adopted by the assessee for estimating of the net profit. Therefore, the net profit disclosed at 7.5 by the assessee is quite reasonable. We entirely agree with the findings given by the Learned CIT(A) and keeping in view the discussion in the foregoing paragraphs and the law in this issue we confirm the findings of Learned CIT(A). 43. In the result, the revenue rsquo s appeal and the C.O. rsquo s appeal are dismissed.
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2005 (1) TMI 591 - ITAT DELHI
Income - Deemed to accrue or arise in India ... ... ... ... ..... ub-clause (c) of clause 2 reads differently. The words deducted have been replaced by borne by and therefore, the entire debate in relation to the provisions of section 44B has been rendered academic. It is not in dispute that remuneration has been paid from the funds of SFDI. In our view SFDI had lsquo fixed base rsquo if not a lsquo permanent establishment rsquo in India. We also see considerable force in the contention of the ld, DR that all the 3 conditions should be found to be existing. If sub-clause (c) of clause 2 of Article 16 is found to be not attracted on the facts and in the circumstances of case, the assessees may loose the benefits of clause 2 for that reason alone. We also see considerable force in the reliance placed by the ld. DR on para 7 of the commentary (PB 141). 29. In views of the discussion in the foregoing paragraphs, we reject the assessees grounds of appeal No. 1 and additional ground. 30. In the result, these appeals are treated as partly allowed.
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2005 (1) TMI 590 - ITAT DELHI
... ...
... ... ..... hat in the absence of prescription of time limit for initiation and completion of proceeding under the Act, the authorities should initiate and complete the proceeding within reasonable period. In the said case a period of 4 years has been held to constitute a reasonable time for levy of interest under section 201(1A) taking into account the various periods of limitation under the Act which range from 2 to 4 years except in exceptional case. In the instant case, the Assessing Officer has given effect to the order of the appellate authority after 16 years from the date of the order of the CIT(A) and 7/10 years from the date of order of ITAT. Thus I am of the view that Assessing Officer has not complied within the directions of appellate authority within the reasonable period. Hence, the order passed by the Assessing Officer for both the years are not legal sustainable. Hence I agree with the final conclusion drawn by my learned brother in dismissing the appeals of the revenue.
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2005 (1) TMI 589 - ITAT JAIPUR
Income escaping assessment, Deductions ... ... ... ... ..... d the lsquo screening rsquo of lsquo talc rsquo , if any, was really done mechanically by its suppliers during the relevant period. The appellant, after realizing that its argument has no force and not acceptable, sought to change the basic facts of its case. The case of the appellant is rejected because it is not in consonance with the facts it had stated earlier before the DCIT and in these appellate proceedings before the ld.CIT(A). To sum up, the claim of the appellant that it had beneficiated the ore of talc by mechanical crushing and screening was also rightly rejected by the ld.CIT(A). It is held that the mineral and ore exported by the appellant did not satisfy the specific conditions laid down in the Twelfth Schedule of the Income-tax Act. 13. In view of the above, the order of the ld.CIT(A) is sustained for the reasons given in appeal of the assessment year 1992-93. This ground of the assessee is dismissed. 14. In the result, the appeal of the assessee is dismissed.
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2005 (1) TMI 588 - ITAT BANGALORE
Disallowed Set off the Speculative business loss against other business income - loss incurred - delivery of shares - HELD THAT:- The delivery contemplated by section 43(5) need not be actual but even constructive or implied as was held by the Hon’ble Supreme Court in the case of Duni Chand Rataria [1954 (12) TMI 19 - SUPREME COURT]. The Assessing Officer may have to accept the case of constructive or implied delivery as the actual delivery within the meaning of the aforesaid provisions. The assessee has produced copies of Stock Exchange Procedures and Regulations of Settlement of Transactions. All these were not produced at the time of hearing before the Assessing Officer.
The Assessing Officer may have to examine the issue in the light of these procedures and should also keep in mind advancement of procedures in relation to trading in shares. We, therefore, in the interest of justice, set aside the entire issue back to the file of the Assessing Officer with a direction to decide the same in accordance with law after going through the settlement procedures in the Stock Exchange as well as the consider the copies of detailed Contract Notes produced by the assessee, which according to the assessee, evidences the fact of constructive delivery. The detailed Contract Notes issued by M/s. Sunil Agencies in respect of all the transactions of the assessee may have to be looked into by the Assessing Officer. The Assessing Officer shall therefore re-decide the issue in accordance with law and keeping in view the principle laid down by the Apex Court in the case of Duni Chand Rataria (supra). Needless to say the assessee shall be given a fair and reasonable opportunity of being heard in the matter.
In the result, the appeal is to be treated as allowed for statistics.
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2005 (1) TMI 587 - ITAT MUMBAI
Expenditure incurred in relation to income not includible in total income - disallowance of administrative expenditure u/s 14A - HELD THAT:- In the assessment order, Assessing Officer disallowed administrative expenses and depreciation expenses on proportionate basis. It is the duty of the assessee to allocate the expenditure but in case the assessee fails to allocate the same, the Assessing Officer has no option but to disallow the same on proportionate basis. From the perusal of administrative and other expenses I find that assessee has incurred expenses on Demat for Rs. 63,324, Share Stamp charges of Rs. 18,936, the total of these two expenses works out to Rs. 82,260. In the assessment order the Assessing Officer has disallowed Rs. 73,608 only as expenses attributable to earning of dividend which is claimed exempt u/s 10(33) of the Income-tax Act, 1961.
From the perusal of administrative and other expenses it can be seen that assessee has claimed computer expenses of Rs. 49,500, conveyance expenses of Rs. 28,577.50 and salary expense of Rs. 2,60,933. In the income side total income shown is Rs. 4,42,577.75 which comprises of Rs. 3,40,170.75, being dividend exempt u/s 10(33), Commission received Rs. 15,000 and Warehousing Charges of Rs. 87,407.00. Thus, disallowance made by Assessing Officer u/s 14A is neither excessive not unreasonable. I, therefore, incline to uphold the order of the ld. CIT(A) on this issue.
In the result, the appeal of the assessee is dismissed.
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2005 (1) TMI 586 - ITAT MUMBAI
Computation of Minimum alternate tax - Deduction of book profit of section 80-IA(b)(iv)(c) qualifying industrial undertaking as per its profit & loss account and not the amount of profit computed in terms of provisions of Chapter IV-D of the IT Act - HELD THAT:- The mandatory requirement of section 115JA is that, for the purpose of section, the profit & loss account has to be prepared in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act, 1956. In the present case, there is no dispute that the profit & loss account has been prepared by the assessee in consonance with the above mentioned statutory requirement.
It is notable that under the Explanation, the book profits cannot be increased by making any adjustment on account of depreciation. Further, the book profits are required to be reduced by the amount of profit derived by the industrial undertaking which is eligible for exemption u/s 80-IA. Under clause (v), there is no mention that the profit derived by the industrial undertaking must be calculated as per the provisions of the IT Act.
Therefore, in our view, the logical interpretation would be that the profits derived by the industrial undertaking as per the books of account have to be reduced from the book profits. In the present case, while computing book profits, which is in consonance with the profit & loss account prepared in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act, the depreciation as provided in the books of account has been considered. If while computing the profits derived by the industrial undertaking, which is required to be reduced from the book profits as per clause (v), the provisions of the IT Act are applied and depreciation as admissible under IT Act is deducted, it would result into an anomalous situation. While the profit derived from the industrial undertaking, which is included in the book profits has been computed as per the books and no adjustment for depreciation has been made, while computing the income eligible for exemption u/s. 80-IA, the quantum of depreciation as per the provisions of the IT Act would be substantially enhanced. This would violate the very purpose of section 115JA. The cases which have been relied upon by the ld. counsel for the assessee support this view.
We, therefore, hold that the profit of the industrial undertaking eligible for exemption u/s 80-IA must be computed as per the books of account and the provisions of IT Act cannot be applied and no adjustment can be made which is not permissible under the section. We, therefore, reverse the order of the Revenue authorities on this point and direct the Assessing Officer to re-compute the book profits in the light of the observations made above.
In the result, the assessee’s appeal stands partly allowed.
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2005 (1) TMI 585 - CESTAT, MUMBAI
Valuation - Demand - Limitation - Penalty - Departmental clarifications ... ... ... ... ..... e case of the appellants. 3. emsp Since the issue stands settled by the Larger Bench decision, we dispose of these appeals by holding that the proportionate cost is includible in the assessable value in the light of C.B.E.C. Circular dtd. 23-1-1996. As regards the penalty, the arguments raised is that the extended period of limitation is not available to the department and therefore, penalty is not sustainable, however, we note that the appellants did not disclose that they were recovering the pattern development charges and die development charges from their customer and this amounts to suppression with intent to evade payment of duty. Therefore, penalty is imposable upon them. However, having regard to the totality of facts and circumstances of the case, we reduce the penalty in Appeal No. E/3389/02 from Rs. 98,851/- to Rs. 10,000/- and the penalty in Appeal No. E/363/02 from Rs. 1,000/- to Rs. 500/-. 4. emsp The appeals are thus partly allowed as above. (Dictated in Court)
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2005 (1) TMI 584 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - SSI Exemption ... ... ... ... ..... so long as it indicates a connection in the course of trade would be sufficient to disentitle the person from getting benefit of exemption under the SSI Notification. We note that the notification applicable during the period in dispute in the present case i.e. Notification No. 8/98 and 3/2002 does not contain any explanation. Identical explanation IX of Notification 1/93 which was considered by the Supreme Court in the case of Rukmani Pakkwell Traders. Further in the case of Rukmani Pakkwell Traders the brand name was affixed on the goods themselves on the scented supari. The decision relied upon by the Ld. Counsel for the applicants in the case of Superex Industries cited supra prima facie squarely applicable to the facts of the present case and following the same, we hold that a strong prima facie case for waiver has been made out. Accordingly, we waive the pre-deposit of duty and I penalty and stay recovery thereof pending the appeal. (Operative part pronounced in Court)
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2005 (1) TMI 583 - CESTAT, KOLKATA
Activated Dimethicone IP - Classification of - Classification of goods - Finality - Strictures against Revenue
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2005 (1) TMI 582 - CESTAT, NEW DELHI
Rate of duty - Effective rate of duty ... ... ... ... ..... of amending the rate of duty in respect of imports covered by them to 10 . In view of this, lower authorities were not right in denying assessment at the reduced rate merely for the reason that the appellant had not got the licence specifically endorsed. Since the amendments are of general nature, covering a particular category of import, there was no requirement to have each licence specifically endorsed with the revised rate of duty. There is also no dispute that the appellant had installed the machines in question for export production and completed export obligation. The letter dated 27-9-2005 of the DGFT also clarified that appellant rsquo s imports were entitled to the lower rate. 5. emsp In view of what is stated above, we hold that appellant rsquo s imports were entitled to assessment at 10 as originally made and subsequent duty demand is not legally justified. The duty demand is set aside and the appeal is allowed with consequential relief, if any, to the appellants.
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2005 (1) TMI 581 - CESTAT, NEW DELHI
Refund claim - Cost recovery charges for private bonded warehouse - Appeal - Appealable order
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2005 (1) TMI 580 - CESTAT, BANGALORE
Demand - Re-classification of goods ... ... ... ... ..... In other words, the assessment orders have not at all been challenged. In these circumstances, it was contended that the demand is not sustainable. The Hon rsquo ble Supreme Court in the case of Priya Blue Industries Ltd. v. CC (Preventive) reported in 2004 (172) E.L.T. 145 (S.C.) have held that refund claim contrary to assessment order is not maintainable without order of assessment having been modified in appeal or reviewed under Section 28 of the Customs Act, 1962. Similarly, Revenue cannot demand duty unless the order of assessment has been reviewed. In the present case, it is seen that the goods have been cleared after classifying them under 9027.50. No action was taken to modify these assessment orders by filing review application. Therefore, following the ratio of Priya Blue (supra) case we hold that the demand is not sustainable. Hence we allow the appeal with consequential relief. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2005 (1) TMI 579 - CESTAT, MUMBAI
Rectification of mistake - Error apparent on record - Appeal to Appellate Tribunal - Order ... ... ... ... ..... nds no infirmity in its order is inappropriate, particularly when the Tribunal is the ultimate fact finding forum. The Supreme Court remanded the matter back to the Tribunal for disposal on merits. In the final order, which is the subject matter of the present ROM, the Tribunal has recorded that the order-in-original, which is a speaking order of the Commissioner of Customs has upheld that the importers suppressed the fact that the goods imported under ATA CARNET were not meant for exhibition. Therefore, in the light of the Apex Court rsquo s decision in Amrit Foods v. CCE, U.P., we are required to record independent findings on all issues raised before us and since there is no independent findings on the time-bar plea, we allow the present application by recalling Rio India Pvt. Ltd. v. Commissioner our final order Nos. A/441-442/WZB/05-C-I (CSTB), dated 26-10-2005 and re-list the appeal for rehearing along with Appeal C/152/05 of the CHA on 30-1-2006. (Pronounced in Court.)
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2005 (1) TMI 578 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - Extension of stay - Judicial discipline ... ... ... ... ..... restraint and is realizable from the assessee. This amount has already been adjusted from the refund amount. The Sr. Advocate submits that in view of this the Tribunal rsquo s order of granting stay till further orders has been made null and void by the concerned Assistant Commissioner. Shri Loni, ld. JDR has no comments. I find that this is the utmost disregard to the order of this Tribunal. Various courts including the Apex Court has held that Tribunal has power to grant stay beyond 180 days and particularly when the order specifically says that the stay is available till further orders. The Assistant Commissioner has no jurisdiction to sit over the judgment of the Tribunal rsquo s order. I direct the concerned Assistant Commissioner and the Respondent Commissioner to remain present on February 2nd, 2006 and explain their stand. Copy of the above order shall be endorsed to the concerned Assistant Commissioner and the Respondent Commissioner. (Pronounced in the open Court.)
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2005 (1) TMI 577 - CESTAT, KOLKATA
Eggs - Penalty - Personal penalty - Classification dispute ... ... ... ... ..... earned third Member has concluded that the matter has not been referred to him on the point of penalty. However, I feel that the above observation is not correct inasmuch as remand order included remand on penalty point also, in which case learned third Member was required to resolve the difference on this point also i.e. remand to decide on the imposition of penalties. However, as learned third Member has concluded that the matter is not required to be remanded as held by Member (Judicial), we record the final order as under - FINAL ORDER 28. emsp In view of the majority order, the demand of duty is confirmed. Penalty on M/s. Atherton Engg. Co. (Pvt.) Ltd. is reduced to Rs. 25.00 lakhs (Rupees twenty-five lakhs only). Penalty on Shri Vikram Jaitha and Shri R.B. Jaitha is reduced to Rs. 2.00 lakhs (Rupees two lakh) each. Appeals are disposed off accordingly. Sd/- (V.K. Jain) Member (Technical) Dated 21-9-2005 Sd/- (Archana Wadhwa) Member (Judicial) Dated 5-9-2005 (Pronounced)
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2005 (1) TMI 576 - CESTAT, NEW DELHI
Pump - Exemption - Power driven pump ... ... ... ... ..... neither composite machines consisting of two or more machines fitted together to form a whole for the purpose of peforming two or more complimentary or alternative functions inasmuch as the column assembly and discharge head assembly only contribute to the effectiveness of the bowl assembly and does not constitute a composite machine. Note 4 applies where the machine consists of individual components intending to contribute together to a clearly defined functions. As held by the Gujarat High Court and affirmed by the Supreme Court, the main function of the pump i.e. to shift or lift liquid from one point to another point is done only by the bowl assembly and the other two assemblies, column and shaft and discharge head assembly only contribute to the effectiveness of the bowl assembly. Thus, Note 4 also is not applicable. Accordingly, there is no merit in the appeals filed by the Appellants, which are rejected. (Operative part of Order pronounced in open Court on 11-1-2005).
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2005 (1) TMI 575 - CESTAT, MUMBAI
Diagnostic test kits, for detection of HIV antibodies ... ... ... ... ..... diagnostic kits is a diagnostic kit whether it is used in a research lab or in a Pathological laboratory. Further the supplier clearly states that he is not certifying the kits as diagnostic kits because the FDA in America have not still approved them as diagnostic kits but the same kits are being used in Europe as diagnostic kits. For one thing the end use (whether the kits in question are going to be used in a research institution or in a chemical lab) is immaterial, so long as the kits are diagnostic kits. For another we are not sure whether the licensing authority is empowered to make such remarks on the licence. He is required to permit or not permit the import and should not be normally concerned with the use nor he should specify the use that it should be put to. The importer satisfies the conditions of the Customs Notification and therefore is entitled to its benefit. 4. emsp The order of the Commissioner is set aside. The appeal is allowed. (Pronounced in open Court)
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2005 (1) TMI 574 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Appeal - Hearing ... ... ... ... ..... s. Ld. Jt. CDR also submits that the amounts of duty are very large in this case and the revenue rsquo s prayer to argue its case should be granted as the Department has a very good case on merit. 4. emsp After considering the provisions of Section 35F of the Central Excise Act, and the precarious financial condition and the prima facie view that has been consistently taken by the Tribunal that penalties under Section 209A are not leviable when no confiscation of goods is arrived and ordered, we would in the facts of this case dispense with the pre-deposit requirement of duties and penalties as required under Section 35F of the Central Excise Act, 1944. We, however, do not grant stay of recovery of the amount of duties and penalties as arrived at by the ld. Adjudicator and reject the prayer on that account made by the appellants. 5. emsp In view of the above, we would fix the case for regular hearing on 18-2-2005 as per the oral plea made by the Jt. CDR. (Pronounced in Court)
............
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