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Showing 161 to 180 of 1599 Records
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2013 (10) TMI 1440
Cargo Handling Service - appellant contest that activity of packing, unpacking, loading and handling goods within the factory premises will not be covered by the entry for ‘Cargo Handling Services’ because at that stage where such activity was being done they were just handling goods and not “cargo” - extended period of limitation - penalty - difference of opinion - majority order.
Held that: - reference is returned to the original Bench directing the Registry to place the same before that Bench for majority order.
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2013 (10) TMI 1439
Issues involved: Appeal against Service Tax demand for "Sale of Space or Time for Advertisement" service u/s 65 (105) (zzzm) of the Finance Act, 1994.
Summary:
The Municipal Corporation, Ludhiana appealed against an adjudication order confirming a Service Tax demand of Rs. 1,71,46,656/- along with interest under Section 75 and penalties under Sections 76, 77, and 78 of the Finance Act, 1994 for providing the taxable service of "Sale of Space for Advertisement." The petitioner received Rs. 14,70,21,870/- as consideration for providing space for advertisement, claiming it was under statutory provisions of the Punjab Municipal Act, 1976, towards advertisement tax and hence exempt from Service Tax.
Upon examining the Punjab Municipal Act, 1976, it was found that the consideration received for the taxable service, even if collected as tax under the Act, is not immune to Service Tax. The provisions of the Finance Act, 1994 do not require reading down due to Service Tax being levied by a local authority under a State legislation. The amount collected by the Municipal Corporation is to be deposited in the Corporation Fund and does not constitute revenue of the State.
It was held that there was no escape from the assessed liability, and the adjudication order was found to be without infirmity. The issue of whether penalties should have been imposed was left for further consideration. The petitioner was granted a waiver of pre-deposit and a stay on further proceedings, on the condition of remitting the assessed amount within a specified time frame. Failure to comply would result in the waiver being rescinded, and the appeal dismissed.
The petitioner's counsel acknowledged the order, and the application was disposed of accordingly.
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2013 (10) TMI 1438
Issues:
1. Imposition of penalties under Section 78 of the Act.
2. Rejection of refund claim on grounds of being time-barred and unjust enrichment.
Imposition of Penalties:
The appellant received a show cause notice demanding Service Tax for a specific period, which was later confirmed under management, maintenance, or repair service (MMR). The original demand was reduced from the notice amount. The order was challenged before the Commissioner (Appeals) regarding penalties. The penalty under Section 78 of the Act was set aside, and a reduced penalty of &8377; 1000 was upheld.
Rejection of Refund Claim:
A refund claim was filed by the appellant, which was rejected as time-barred and on grounds of unjust enrichment. The Revenue argued that the claim should have been filed within one year from the dates of payment made by the appellant. The appellant cited previous cases to support their position, emphasizing that deposits made should be treated as paid under protest. However, the Revenue contended that these cases were rendered before the relevant amendment to Section 11B. The Tribunal held that the time limit under Section 11B would be applicable for deposits made during proceedings and subsequent refund claims filed after the Tribunal's decision.
The Tribunal considered the arguments from both parties. It clarified that the limitation of one year for refund claims applies to decisions of appellate authorities or courts in favor of the appellant, excluding the adjudicating authority. The relevant date for filing refund claims beyond decisions of appellate authorities is calculated from the date of payment of duty. Since the appellant's refund claim was filed beyond the prescribed limitation period under Section 11B, and the Tribunal cannot exceed statutory provisions, the appeal was rejected.
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2013 (10) TMI 1437
Issues involved: Classification of services u/s 65(105)(zza) and 65(105)(zzm), applicability of exemption to export cargo, time limitation for demand u/s 65(105)(zr), liability for service tax on cargo handling services.
Classification of storage and warehousing services: The Commissioner upheld the classification of storage and warehousing services u/s 65(105)(zza) based on the charges collected for terminal storage, demurrage, and the wide definition of storage activities. It was noted that demurrage charges were linked to storage charges, and the exemption for export cargo only applied to specific activities like loading, unloading, packing, and unpacking.
Classification of airport services: Unitization and screening services were classified under airport services u/s 65(105)(zzm) as they were deemed unrelated to traditional cargo handling activities. Screening was described as necessary for hazardous material detection, while unitization aimed to optimize cargo packaging for efficient loading onto flights by airline staff.
Exemption for export cargo: The appellant contended that all services provided for export cargo fell under cargo handling services, which was not accepted initially. However, considering a Board Circular and the relevant time period, the Tribunal found that the appellant could have genuinely believed in the exemption for export cargo services. The show cause notice issued beyond the normal limitation period was deemed prima facie inapplicable, leading to a waiver of pre-deposit and a stay on recovery during the appeal.
Liability for service tax: The Tribunal acknowledged the appellant's compliance with service tax liabilities for imported cargo but emphasized the bona fide belief in the exemption for export cargo services during the relevant period. It was noted that services provided for export cargo were inherently related and ancillary to the cargo handling services, justifying the waiver of pre-deposit and a stay on recovery pending the appeal.
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2013 (10) TMI 1436
Issues Involved:
The issues involved in the judgment are service tax demand under three categories: Business Auxiliary Service, Manpower Recruitment or Supply Agency, and Information Technology Software Service.
Business Auxiliary Service:
The appeal challenged an adjudication order confirming a service tax demand under the head of Business Auxiliary Service, specifically for service fee and handling commission remitted to the overseas holding company. The total tax assessed was &8377; 5,45,75,893/-. The petitioner claimed benefit under Export of Service Rules, 2005, which was unsuccessful. However, citing a decision in Paul Merchant Ltd. v. CCE, Chandigarh, the Tribunal ruled in favor of the petitioner regarding this aspect.
Manpower Recruitment or Supply Agency Service:
The tax demand under this category pertained to remittances made for manpower supplied by the overseas holding company to the appellant. The demand was &8377; 4,76,196/- for the periods 2007-08 to 2008-09 and &8377; 3,96,829/- for the period 2010-11. The Tribunal mentioned that interim orders were passed in favor of the petitioner in related cases, indicating a possible favorable outcome for the petitioner.
Information Technology Software Service:
The service tax liability confirmed under this category was &8377; 1,59,828/- for the periods 2008-09 to 2009-10 and &8377; 1,13,996/- for the period 2010-11. The Tribunal found the adjudication order on this aspect to be prima facie unsustainable. It noted discrepancies in the classification of services and lack of a fair opportunity for the appellant to respond adequately. Additionally, the tax component confirmed for 2010-11 was already remitted by the petitioner. Considering these circumstances, the Tribunal granted a waiver of pre-deposit and stayed further proceedings for recovery of the adjudicated liability pending the appeal's disposal.
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2013 (10) TMI 1435
Issues involved: Appeal against adjudication order confirming service tax for "Online Information or Database Access or Retrieval" (OIDARS) and "Sale of Space or Time for Advertisement" services.
Issue 1: Taxability of OIDARS service
The appellant appealed against the adjudication order confirming service tax for OIDARS service provided by a foreign news agency. The appellant remitted charges to the foreign news agency for online information and database access, leading to a tax demand of &8377; 1,20,788. The appellant claimed exemption under Notification No. 13/2010-S.T., dated 27-2-2010, which exempts Indian news agencies from service tax for OIDARS services. The Central Government exempted OIDARS services provided by Indian news agencies subject to certain conditions, which the appellant fulfilled. However, the adjudicating authority rejected the claim, stating that the appellant was the recipient, not the provider of OIDARS. Section 66A(1)(b) treats a recipient as the provider of taxable services for certain purposes. The Tribunal held that the appellant, though a recipient, should be considered the provider of OIDARS and entitled to the benefits of the exemption notification.
Issue 2: Stay of proceedings
Based on the above premise, the Tribunal granted a waiver of pre-deposit in full and stayed all further proceedings following the adjudication order until the appeal is disposed of. The Tribunal's decision was made to ensure that the appellant is not unduly burdened during the appeal process.
In conclusion, the Tribunal ruled in favor of the appellant regarding the taxability of OIDARS service and granted a stay on further proceedings pending the appeal's disposal to prevent any adverse impact on the appellant during the legal process.
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2013 (10) TMI 1434
Issues involved: Interpretation of Cenvat Credit Rules u/s 2(1), applicability of Rule 14 of Cenvat Credit Rules, imposition of penalty u/s 11A of Central Excise Act, 1944.
Summary:
Interpretation of Cenvat Credit Rules u/s 2(1):
The appellant, a manufacturer of electric storage batteries, included charges towards freight and insurance in the assessable value of goods sold and paid excise duty accordingly. However, the department denied Cenvat credit of Service Tax paid on outward transportation charges, citing an amendment to Rule 2(1) of the Cenvat Credit Rules. The appellant contended that as per the terms of sale, the 'place of removal' was the buyer's premises, and they were entitled to the credit as they bore transportation costs.
Applicability of Rule 14 of Cenvat Credit Rules:
The department sought recovery of an amount along with interest and penalty under Rule 14 of the Cenvat Credit Rules, which was contested by the appellant. The appellant argued that they discharged Excise duty liability inclusive of transportation costs and thus should be granted the Cenvat credit.
Imposition of penalty u/s 11A of Central Excise Act, 1944:
The lower appellate authority rejected the appellant's appeal, leading to the appellant approaching the higher authority. The Tribunal noted that the 'place of removal' was the buyer's premises, making transportation up to that point an eligible input service. Relying on this interpretation, the Tribunal granted the appellant unconditional waiver from pre-deposit of dues and stayed the recovery during the appeal's pendency.
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2013 (10) TMI 1433
Issues involved: Determination of liability for service tax on business auxiliary services, management, maintenance or repair services, consulting engineer services, and applicability of Notification No. 12/2003.
Liability for Business Auxiliary Services (BAS): The appellant, engaged in ship manufacture and repair, faced a demand for service tax on handling charges collected under BAS. The handling charges were added due to VAT Act requirements, but the Tribunal found that the handling charges were not chargeable separately for tax as they were related to the main activity of maintenance and repair. The Tribunal also noted that the value shown in the invoice need not be equal to the cost, and intent should be considered over contractual terms.
Liability for Consumables in Repair Services: Another demand was made for including the cost of paints used in ship repair. The Tribunal found that the cost of consumables, like paint, should not be included in the taxable value of services provided, citing precedents where only the service component, not material costs, is liable for tax. The Tribunal ruled in favor of the appellant on this issue.
Liability for Consulting Engineer Services: A demand for consulting engineer services received by the appellant was contested, with the appellant arguing that services were received prior to the taxable period. The Tribunal found that there was no specific finding that the services were received in the taxable period, leading to a prima facie case for waiver of the tax liability.
Operative Order: The Tribunal waived the pre-deposit requirement and granted a stay against recovery during the appeal process, based on the prima facie cases made by the appellant on various liability issues.
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2013 (10) TMI 1431
Issues involved: Application seeking waiver of pre-deposit of duty and penalty u/s 11AC of the Central Excise Act, 1944 for export of goods.
Summary:
The judgment by the Appellate Tribunal CESTAT, KOLKATA addressed an application seeking waiver of pre-deposit of duty amounting to Rs. 1.48 lakhs and an equal penalty imposed under Section 11AC of the Central Excise Act, 1944. The ld.A.R. for the Revenue contended that the appeal before the Tribunal was not maintainable as the issue pertained to export of goods and the order was passed by the ld. Commissioner (Appeals). The ld. Consultant for the Appellant did not dispute these facts. The Tribunal concurred with the Revenue's argument, stating that the proper forum for pursuing the matter was the revisionary Authority of the Government of India against the said order, not the Tribunal. Consequently, the appeal was dismissed as not maintainable, and the Stay Petition was also disposed of.
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2013 (10) TMI 1430
Issues Involved:
1. Legality of retrenchment under the Industrial Disputes Act, 1947.
2. Applicability of Section 25FF vs Section 25N of the I.D. Act.
3. Entitlement to reinstatement and back wages.
4. Consistency of relief with previous judgments involving similarly situated workmen.
Summary:
Issue 1: Legality of Retrenchment under the Industrial Disputes Act, 1947
The respondents challenged the termination of 256 workmen by the Labour Court, Sangli, which was upheld by a Single Judge and a Division Bench of the Bombay High Court. The Labour Court found the termination illegal due to non-compliance with Section 25F of the I.D. Act, as adequate statutory notice was not given. The Single Judge also held that the lift irrigation schemes were "Industrial Establishments" under the I.D. Act, and thus, the retrenchment was illegal for not complying with Section 25N.
Issue 2: Applicability of Section 25FF vs Section 25N of the I.D. Act
The appellants argued that the termination was due to the transfer of the lift irrigation schemes to a sugar factory, invoking Section 25FF, which pertains to the transfer of undertakings. The Supreme Court noted that the transfer of these schemes constituted a transfer of an undertaking, and thus Section 25FF applied. However, the appellants failed to absorb the workmen in other activities of the irrigation department or ensure their employment with the new employer.
Issue 3: Entitlement to Reinstatement and Back Wages
The Single Judge had ordered reinstatement with 25% back wages, which was challenged by the appellants. The Supreme Court, considering the long duration of the case and the fact that many workmen had reached superannuation, held that reinstatement was not feasible. Instead, the workmen were entitled to continuity of service, 25% back wages, and retirement benefits on par with another group of 10 workmen who had received similar relief.
Issue 4: Consistency of Relief with Previous Judgments Involving Similarly Situated Workmen
The respondents pointed out that another set of 10 workmen from the same schemes had been awarded reinstatement with 25% back wages, and the appellants' challenge to this award had been dismissed by the Supreme Court. The Court emphasized the need for consistency and fairness, ruling that the 163 workmen should receive similar relief to avoid contradictory orders.
Final Order:
1. The 163 workmen will be categorized into those who have reached superannuation, those yet to reach it, and those who have expired.
2. Benefits will be provided until the date of superannuation, the date of this judgment, or the date of expiry, as applicable.
3. All workmen will receive 25% back wages in addition to last drawn wages under Section 17B of the I.D. Act.
4. Retirement benefits will be aligned with those given to the other group of 10 workmen.
5. Payments to be made within three months, with no order for reinstatement.
6. Compliance report to be filed in the Labour Court at Sangli.
Both appeals were disposed of with no order as to costs.
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2013 (10) TMI 1429
Seeking to withdraw the Lookout Circular (L.O.C) issued - Offence punishable u/s 304(ii) IPC - 'EVP Theme Park' - mishap occurred while having ride in the Octopus - HELD THAT:- L.O.C. containing full particulars of the person is being sent throughout the world. Even to Interpol also. It is being sent using software techniques. Its effect is that the person against whom L.O.C. has been issued, if lands in an Indian Airport, he will be apprehended. There will be difficulty for him to land in a foreign country also as he will not allowed to enter the country from the Airport.
Petitioners are facing criminal prosecutions. They are granted bail/anticipatory bail. They are holders of valid Indian Passports. They have strong roots in the society. They are business people. They need to travel abroad often. So far there is no valid restriction on their movement by any Court order or Ministry of Home Affairs or External Affairs. They are not stated be involved in any heinous crimes. They are not terrorists. Nor anti-social elements. There is no allegation that they have absconded. Thus, they cannot be brought under any one of the categories with respect to whom L.O.C. orders are being issued .
In the facts and circumstances of this case and due to the subsequent developments, so far as the petitioners are concerned, L.O.C. orders becomes irrelevant.
Thus, the 1st respondent, namely, the Deputy Commissioner of Police, Ambattur Range, Chennai is directed to withdraw the Look Out Circular order issued as against the petitioners.
Accordingly, this criminal Original Petition is disposed of.
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2013 (10) TMI 1428
Private complaint under Section 200 of Cr.P.C - Investigation u/s 156(3) CrPC by the Deputy Superintendent of Police - Non-production of a valid sanction order u/ 19 of the Prevention of Corruption Act, 1988 - HELD THAT:- the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.
Decision in the case of Subramanium Swamy v. Manmohan Singh and another[2012 (2) TMI 140 SUPREME COURT] and STATE OF U.P. VERSUS PARAS NATH SINGH [2009 (5) TMI 973 - SUPREME COURT] followed.
In the result the principles laid down by the Court in the above referred judgments apply to the facts of the present case. Therefore, no error was found in the order passed by the High Court. The appeals lack merit and are accordingly dismissed.
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2013 (10) TMI 1427
Inherent Jurisdiction of High Court in quashing a criminal proceeding or FIR or complaint u/s-482 CrPC - Criminal court's power for compounding the offences u/s 320 of CrPC is distinct & different - No power of quashing heinous and serious offences of mental depravity or offences like murder, rape, dacoity - Commitment of offences w.r.t. Banking activities & offences under Sections 420/471 IPC - Harmful effect on the public - Threatens well being of society - HELD THAT:- when the specific allegation is made against the respondent-accused that he obtained the loan on the basis of forged document with the help of Bank officials, yet on investigation it was found that the ingredients of cheating and dishonestly inducing delivery of property of the bank (Section 420 IPC) and dishonestly using as genuine a forged document (Section 471 IPC), charge sheet was required to be submitted under Sections 420/471 IPC against the accused persons.
Offences w.r.t. Banking activities - HELD THAT:- The debt which was due to the Bank was recovered by the Bank with an order passed by Debts Recovery Tribunal. Therefore, it cannot be said that there is a compromise between the offender and the victim. The offences when committed in relation with Banking activities including offences under Sections 420/471 IPC have harmful effect on the public and threaten the well being of the society. These offences fall under the category of offences involving moral turpitude committed by public servants while working in that capacity. Further it may be claimed that the bank is the victim in such cases but, actually, the society including Bank's customers are infirm. There was neither an allegation regarding any abuse of process of any Court nor anything on record to suggest that the offenders were entitled to secure the order in the ends of justice.
Decision in the case of GIAN SINGH VERSUS STATE OF PUNJAB AND ANR [2010 (11) TMI 1058 - SUPREME COURT] was followed.
In the instant case, the High Court did not consider the above factors while passing the impugned order. Hence, Supreme Court was of opinion that the High Court has erred in addressing the issue in right perspective.
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2013 (10) TMI 1426
Denial of deduction claimed u/s. 80IB(10) in respect of project Tulips - Held that:- Legal position it is settled that clause (d) will not apply if project is approved prior to 01-04-2005. In the present case, it is an admitted position that Tulip project was approved and commenced on 19- 03-2003. In view of the above, the objection of Assessing Officer in respect of construction of commercial user could not be sustained. It is also pertinent to mention that Assessing Officer himself has accepted in assessment order that commercial area of 8801 sq. ft. is within permissible limits of PCMC for housing project constructed in the residential zone. Therefore, commercial user constructed Tulip project was within the norms of PCMC for housing project. Accordingly, issue raised in ground No.1 & 2 has rightly been decided in favour of assessee because clause (d) inserted in the provisions of section 80IB(10) restricting commercial area has prospective effect from 01-04- 2005. We uphold the same.
Violation of clause (c) on the basis of report given by Ward Inspector - Held that:- Material as available on record reveals that three flats were separately sold to Mr. Oomer K. George through separate deeds. Three electricity connections were provided for respective flats and even municipal authorities recognizes three flats by assessing them separately for the purpose of municipal taxes. There is apparently nothing on record that assessee has played a role in selling the flats in combined manner even purchaser Mr. Oomer K. George during appeal also confirmed the fact that three flats were joined by him and assessee has not played any role in the same. In view of the above objection on violation of clause (c) and in view of the merger of three flats by one Mr. Oomer K. George was not accepted by CIT(A) , accordingly disallowance of claim of deduction u/s. 80IB(10) on this ground was rejected and claim of assessee was allowed. This reason of factual legal finding needs no interference from our side. We upheld the same.
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2013 (10) TMI 1425
Admission of additional evidence - Held that:- In the assessment proceedings resumed on 10.12.2010, 13.12.2010 and 28.12.2010, the AR has been asked to explain the issues raised in the CIT’s order u/s 263 of the Act. Once again, no specific information has been called for during these dates and thereby the AO proceeded to complete the assessment on 31.12.2010 i.e., within a span of 20 days. This, in our view, resultantly implies that the assessee has not been provided with proper opportunity in the light of rule 46A (1) (d) which provides one of the exceptional circumstances under which the Ld.CIT(A) can admit the additional evidence in the first appellate proceedings. It is also relevant to note that before admitting the additional evidence, the Ld.CIT(A) has called for a remand report from the AO on the additional evidence furnished by the assessee and accordingly considered the submission of the AO dated 27.01.2012 by giving proper opportunity to the AO to examine the said additional evidence.
We are of the view that the Ld.CIT(A) has not contravened Rule 46A of the I.T. Rules while admitting the additional evidences filed by the assessee during the first appellate proceedings. Therefore, we do not find any justifiable reason to interfere with the order of the Ld.CIT(A) on this count and the same is upheld.
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2013 (10) TMI 1424
Order passed u/s. 263 annulled - Held that:- As the order passed u/s. 263 of the Act dated 29.3.2011 was quashed by the Tribunal for A.Y. 2006-07, there is no surviving order so as to pass consequential order in terms of section 143(3) r.w.s. 263 of the Act. Hence, the CIT(A) is justified in annulling the assessment order dated 30.6.2011 passed u/s. 143(3) r.w.s. 263 of the Act. The ground taken by the Revenue is rejected.
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2013 (10) TMI 1423
Set off the loss on account of forfeiture of licence fee against income - Held that:- Since the assessee was allotted the licence by the Excise Department, which was later on transfer to one Shankar Lal Patidar but the said licence was cancelled by the Excise Department and the amount of licence fees deposited by the petitioner was forfeited by the Excise Department, the assessee is entitled to set off on account of such forfeiture.
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2013 (10) TMI 1422
Issues involved: Calculation of Central Excise duty, rejection of petitioner's application, interpretation of Section 32H of the Central Excise Act, 1944.
Calculation of Central Excise duty: The petitioner, a registered company engaged in manufacturing Slurry Explosives and Detonating Fuses, received a show cause notice demanding Central Excise duty. The petitioner filed an application for settlement, which was approved with a duty payable of &8377;90,66,563 and a penalty of &8377;3,80,000. Subsequently, the petitioner claimed a lower tax liability of &8377;65,62,817 due to a departmental mistake in calculation. The respondent rejected this claim citing Section 32H of the Act, preventing reopening of completed proceedings post-1-6-2007.
Rejection of petitioner's application: The respondent rejected the petitioner's claim for lower tax liability, stating that they were precluded from reopening completed proceedings after a certain date as per Section 32H of the Act. The petitioner challenged this rejection through a writ petition.
Interpretation of Section 32H of the Act: The Court acknowledged a mistake in the Department's calculation of duty, particularly regarding the value of goods cleared on specific dates. Despite the technical preclusion under Section 32H, the Court directed reconsideration of the issue based on the counter affidavit's contents, emphasizing the need for a fresh enquiry and decision by the respondent after hearing the petitioner.
Conclusion: The Court set aside the previous order and directed the respondent to review the petitioner's application, investigate the objections raised, and issue a new decision in compliance with the law after providing the petitioner with a hearing opportunity. The writ petition was disposed of without costs, and any related pending petitions were to be closed.
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2013 (10) TMI 1421
Penalty u/s 271(1)(c) - Held that:- We find that the case squarely falls within the parameters of "ignorance", even by the CA, who conducted audit and tax audit. In such a case, the bonafide of the assessee gets explained automatically. In these circumstances, the penalty, in our opinion cannot be levied on the assessee. In so far as the bonafides of the CA firm is concerned, even the Hon'ble Supreme Court has accepted the fact that certain "silly mistakes" can never be ruled out. We, therefore, cannot hold even the CA to be guilty of committing a mistake, because, the relevant expression was inserted in the relevant assessment year only which went unnoticed by everyone.
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2013 (10) TMI 1420
The Appellate Tribunal CESTAT NEW DELHI dismissed the stay application due to non-prosecution by the appellant. The appellant was directed to pre-deposit the assessed liability, including penalty, within four weeks. The appeal was rejected for non-compliance with the order.
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