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Case Laws
Showing 161 to 180 of 888 Records
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2009 (8) TMI 1129 - KERALA HIGH COURT
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... ... ..... the instance of the Director of Income-tax (Investigation) that the information was sought for. " This was considered by a Division Bench of this Court and relied W.P.(C) Nos. 22697 OF 2009 and connected cases. on,in Kechery Service Co-operative Bank Ltd. vs. Commissioner of Income-tax (CIB) 2003 (2) KLT 32 . It was following both the above verdicts, that the, verdict in W.P. (C)9737 of 2009 and connected cases was passed (which is produced as Ext.P2 in W.P.(C)23563 of 2009), declining interference with regard to the notice issued under Section 133 (6). In the above facts and circumstances, this Court does not find any tenable ground to re-consider the above verdict passed by this Court . Interference is declined and the Writ Petitions are dismissed accordingly. However, considering the mandate given by this Court in W.P.(C) 9737 of 2009 and connected cases, all the petitioners are given six weeks' time to comply with the directions contained in the impugned notice.
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2009 (8) TMI 1128 - SUPREME COURT
Whether the acquisition proceeding should be treated as having been abandoned on account of delay in making the awards and whether more than one award can be passed in respect of the land covered by the same notification?
Whether the acquisition proceeding should be treated as having been abandoned on account of delay in making the awards and whether more than one award can be passed in respect of the land covered by the same notification?
Whether the decision contained in letter dated 9.6.2000 is liable to be nullified on the ground of arbitrariness and violation of Article 14 of the Constitution?
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2009 (8) TMI 1127 - DELHI HIGH COURT
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... ... ..... rds forum of a second appeal to the High Court by virtue of Section 106(3) and which provision makes it clear that all orders passed under S.T. Appeals No.2-3-4 and 5/ 2009. Page 8 the Delhi Sales Tax Act will be treated as if they have been passed under the Delhi VAT Act. Thus vide Section 106(3) the order passed by the Appellate Tribunal will be an order, not under Section 44 of the Delhi Sales Tax Act, but one under Section 74 of the Delhi VAT Act. The unambiguous language of Section 106(2) can lead to no other conclusion than that the appeal will now lie to the High Court under Section 81 of the Delhi VAT Act even if the order which is passed by the Tribunal is in respect to proceedings which were initiated when the Delhi Sales Tax Act was in force. 12. We accordingly hold that the present appeals under Section 81 of the Delhi VAT Act are maintainable. The preliminary objection of the respondent is accordingly rejected. Post the appeals for hearing on 3rd December, 2009.
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2009 (8) TMI 1126 - BOMBAY HIGH COURT
Revision u/s 263 - nature of receipts - receipt of compensation - Whether on the facts and circumstances of the case s. 28(va) of Act 1961 applies ? - HELD THAT:- Payment is for not carrying out any activity or for refraining from carrying out activity in relation to fish farming business which otherwise was being allowed to be carried out by the petitioner, by the erstwhile owner Mr. Vasant Manohar Wagle. In our view, in the facts and circumstances of the case at hand, this s. 28(va)(a) squarely applies. AO, therefore, was justified in holding that the amount was received by the assessee, by way of compensation and/or a sum for not carrying out any activity in relation to business and was the income of the assessee chargeable to income-tax under the head of profits and gains of business or profession.
Admittedly, order passed by the AO was not appealed against by the petitioner. It is apposite to refer to the s. 246 of the Act 1961. Sec. 246 provides appeal against orders. There is no dispute about the proposition that there is no inherent right of appeal. It is to be specifically conferred by the statute providing for an appeal.
The appellate authority in an appeal against an order of assessment has power to confirm, reduce, enhance or annul the assessment or to set aside the assessment or refer the case back to the ITO or make fresh assessment (s. 251). It is thus clear that what remains is final order after giving effect to the orders of the appellate authority, is an order under ss. 143 and 144. It is in this way appeal is of continuation of the exercise of assessing the income of the assessee. Substantive statutory right of appeal, by way of s. 246 thus is made available to the aggrieved person/assessee. Suffice it to say that such substantive right was not resorted to, in the case on hand, by the petitioner/assessee.
As apparent from s. 264 that there is a wide power with the CIT under revisional jurisdiction. He may call for records of proceeding under this Act, may make such inquiry or cause such inquiry to be made and pass such order thereon however, not being an order prejudicial to the assessee. Even though, power vested with the learned CIT seems to be wide under s. 264, it cannot be said to be too wide to that of the power vested with the appellate authority while deciding an appeal filed by the assessee under s. 246. There is a discretion vested with the CIT to pass such order as he deems fit on the facts obtaining in the case. However, such discretion has to be exercised by the CIT judiciously i.e. in a judicious manner.
The categorical observation made by the CIT that the assessee was not having any legal rights as a tenant in the property sold by the land owner to M/s Goa International School (P) Ltd. is legal and proper. With this observation, learned CIT has repelled the ground pertaining to s. 45 of the Act 1961.
CIT has also referred to the submissions made by the Authorised Representative and in para 6 reference is made to the written submissions made by the petitioner's Authorised Representative Mr. Mahesh Dhond, chartered accountant. The learned CIT reached the conclusion that there is no transfer of any capital asset by the assessee for the compensation received in his hands as capital gains.
CIT reached to the conclusion that there is no case for interference with in revisional jurisdiction. On examination of the order passed by the learned CIT within the parameters of s. 264 in our opinion, contention on behalf of the petitioner that it is a non-speaking order cannot be accepted. In our view, the learned CIT has passed a well reasoned order referring to the material available on record and considering the submissions made on behalf of the parties. We are unable to find any fault with the order passed by the learned CIT under s. 264 of the Act 1961. Relevant question No. 2 accordingly answered against the petitioner.
Judicial review under Arts. 226 and 227 of the Constitution - Nomenclature alone does not decide the invocation of powers of this Court by the citizen. We have considered the pleadings in the writ petition with prayer. Learned counsel for the petitioner, submitted, that the case for judicial review is established. Learned Government advocate Mr. Rivonkar submits that there is no case for invocation of extraordinary jurisdiction of this Court. We have also considered the provisions laid down under ss. 153, 154 and 260A of the Act 1961. Apart from this, we have considered the material placed on record by the petitioner along with the writ petition; judicial review by this Court under Arts. 226, 227 has its own self-impose restrictions and limitations. In our considered opinion, there is no case for interference in the order passed by the learned CIT in the case on hand, question No. 3 accordingly answered against the petitioner.
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2009 (8) TMI 1125 - SC ORDER
Allegation that assessee fradulently availed Modvat credit without physically receiving the goods - decision in the case of COMMR. OF C. EX., CHANDIGARH Versus SHAKTI ROLL COLD STRIPS PVT. LTD. [2008 (7) TMI 89 - PUNJAB & HARYANA HIGH COURT] - appeal dismissed.
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2009 (8) TMI 1124 - SUPREME COURT
Whether nomination of mother by a member of a Provident fund governed by the Imperial Bank of India Employees’ Provident Fund Rules before his marriage confers ownership on the nominee and destroys right of succession of the widow under Succession Act?
Whether nomination only indicates the hand which is authorized to receive the amount on the payment of which trustees of the provident fund get a valid discharge?
Whether the provident fund can be claimed by the heirs of the member of the provident fund in accordance with the law of succession governing them?
Whether it was proper for the High Court to rely upon a forged and fabricated Will which was not even signed by Niharbala?
Whether it was proper for the High Court to accept the alleged Will on record in its revisional Jurisdiction, in absence of any application to that effect?
Whether the High Court was entitled to take Will on record without giving fresh opportunity to lead evidence on it?
Whether the High Court was right in interpreting and relying upon section 3(2) of Provident Fund Act, 1925?
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2009 (8) TMI 1123 - SC ORDER
Pipes for delivery of water - Exemption under Notification No. 6/2006-C.E. - Order - Appealable order - Appeal by Department - Non-representation - The decision in the case of COMMISSIONER OF C. EX., KOLKATA-III Versus ELECTROSTEEL CASTING LTD. [2008 (10) TMI 424 - CESTAT, KOLKATA] contested - Held that: - the decision in the above case upheld - appeal dismissed.
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2009 (8) TMI 1122 - CESTAT AHMEDABAD
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... ... ..... . The said clearances to the advance license holder was at a price lower than the price at which the goods were being cleared to other buyers. It is the Revenue’s contention that such surrendering of advance license by the customer to the appellants were in the nature of the additional consideration, which would form part of the price of the final products for the purposes of excise duty. 2. Both the sides agree that the issue is no more res integra and stands settled by the majority decision of the Tribunal in the same appellant’s case setting aside the demands on the ground of Revenue neutrality. Reference in this regard is made to majority decision in the case of M/s. Reliance Industries, being Order No. A/564-566/WZB/AHD/2009, dated 17-3-2009 2009 (244) E.L.T. 254 (Tri.-Ahmd.) . As such by following the ratio of the above decision we set aside the impugned orders and allow both the appeals with consequential relief to the appellant. (Pronounced in Court)
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2009 (8) TMI 1121 - ANDHRA PRADESH HIGH COURT
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... ... ..... that CESTAT has started functioning since yesterday and therefore a direction may be issued to CESTAT to dispose of the interlocutory application filed by the petitioner in Appeal No. 420 of 2009. He further requested that the interim order of suspension passed by this Court on 7-7-2009 may be extended. 4. Having heard Sri M.S. Ramachandra Rao, learned counsel for the petitioner and Sri A. Rajashekar Reddy, Assistant Solicitor General appearing for the respondents and in view of that fact that CESTAT is functioning since yesterday, we are of the opinion that it would suffice if a direction is issued to CESTAT to dispose of the interlocutory application filed in Appeal No. 420 of 2009 within a period of three weeks from the date of receipt of a copy of this order. Till such time the interim order of suspension passed by this Court on 7-7-2009 shall continue. 5. With the above directions, the Writ Petition is disposed of, at the admission stage. No order as to costs.
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2009 (8) TMI 1120 - DELHI HIGH COURT
Alleged contravention of the provisions of Section 8(1) and 8 (2) of the FERA, 1973 - peanlty imposed
Held that:- The learned counsel appearing on behalf of the respondent though submitted a written note opposing the case of the appellant but has not been able to substantiate the proof of alleged statement of Surinder Kumar Dhawan, which is the basis of the involvement of the present appellant in this case. The voluntariness of the statement of the present appellant has also not been proved. No copy of the statement dated 2-7-1986 has been placed on record. Thus, there is no evidence which may prove the role of the appellant in this case. Further in this case the enquiry is not fair inasmuch as no opportunity has been granted to the appellant to cross-examine the witnesses who recorded the statement of the appellant and of other accused persons or the witnesses to the recovery of the incriminating documents or the witnesses to the recovery of the alleged foreign exchange from Surinder Kumar Dhawan and as such even the lighter burden to prove their case by preponderance of probability has not been discharged by the respondent. Moreso, they have also not been able to lead evidence before the adjudicating authority that the alleged confessional statement, on which reliance has been placed by the respondents, was made voluntarily and was not recorded by using any force upon him as alleged by the appellant in his written communication sent on 14-9-1985.
Thus no ground for imposition of penalty upon the appellant in this case and consequently, the penalty imposed by respondent No. 3 vide order dated 10-4-1991, upheld by respondent No. 2 though by reducing the penalty amount, is not sustained.
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2009 (8) TMI 1119 - ALLAHABAD HIGH COURT
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... ... ..... ears that the AO has estimated the turnover and levied the tax. The first appellate authority, after examining the books of accounts, has estimated the turnover and reduced the tax and the Tribunal also upheld the same. Needless to mention that in a number of cases including TTR No. 163 of 2007 CTT vs. M/s Chaudhary Brick Field Gonda decided on 30.07.2009, this Court has taken a view that question of estimation is a question of fact. Also in the case of New Plaza Restaurant v. ITO 309 ITR 259 (H.P.), it was observed that the estimate is the question of fact. No interference is required in such cases as per the ratio laid down in the case of Zora Singh vs. CIT 296 ITR 104 P and H. In the instant case, no question of law is emerging from the impugned order of the Tribunal. Hence, no interference is required in the Tribunal's order which is hereby sustained along with the reasons mentioned therein. The revision filed by the Commissioner Trade Tax, U.P. Lucknow is dismissed.
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2009 (8) TMI 1118 - MADRAS HIGH COURT
Sale as contemplated under section 3 of the Central Sales Tax Act - Held that:- What has been decided by the lower appellate authorities were all disputed questions of facts relating to inter-State sale falling under section 3 of the Central Sales Tax Act. While examining the findings rendered by the Appellate Assistant Commissioner as affirmed by the Tribunal, we find that the lower appellate authorities have chosen to accept the stand of the respondent-assessee based on the relevant documents found in the assessment file. With reference to those documents when such a categoric finding came to be recorded by the Tribunal, we are not in a position to interfere with the said findings in the absence of any other valid material displayed by the Revenue which was omitted to be considered by the lower appellate authorities.
In the absence of any question of law, the orders impugned cannot be revised under section 38 of the Tamil Nadu General Sales Tax Act. Revision dismissed.
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2009 (8) TMI 1117 - KARNATAKA HIGH COURT
Reassessment orders - Held that:- There is considerable force in the submission of the learned counsel for the petitioner that the orders impugned are not speaking orders. The orders, annexure F series, of the first respondent-assessing officer being illegal cannot be sustained, and as a consequence, the demand notices, annexure G series, are also unsustainable.
In the result, the petitions are allowed. The assessment orders, annexure F series and demand notices, annexure G series, are quashed. The proceeding is remitted with a direction to consider afresh the petitioner's objections after extending a reasonable opportunity of hearing to the petitioner and to pass the orders thereon, in accordance with law.
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2009 (8) TMI 1116 - KERALA HIGH COURT
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... ... ..... We therefore feel that the forfeited amount should not be set off from the total amount of exemption granted to the petitioner. We feel the full amount of exemption granted for the period provided in the certificate should be made available to the appellant that is without such amount being reduced by the amount of collected tax forfeited. Consequently writ appeal is disposed of by upholding the forfeiture but with a direction to the assessing officer to modify the assessments issued for 1991-92 and 1992-93 converting the supplies to Civil Supplies Department from exempted turnover to taxable turnover and grant consequential relief in later years. Once this is done there will be no justification to set off of tax paid on taxable turnover from out of the total amount of exemption granted under notification. We make it clear that the entire amount paid should be adjusted towards tax liability and interest if any payable under section 23(3A) of the Kerala General Sales Tax Act.
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2009 (8) TMI 1115 - PUNJAB AND HARYANA HIGH COURT
Condonation of delay - Held that:- These appeals are allowed being squarely covered by the Division Bench judgment of this court rendered in Sachdeva & Sons Rice Mills Pvt. Ltd., Amritsar v. State of Punjab [2009 (3) TMI 426 - HIGH COURT OF PUNJAB & HARYANA] The matter is remanded back to the Tribunal for deciding the questions of law raised in the appeals by the respondent-State in accordance with law, within four months from the date a certified copy of this order is received. The Tribunal is directed to intimate the parties by issuing notices to them of the next date of hearing so fixed by it.
It is pertinent to notice that along with the appeals, the dealer-assessee have also filed miscellaneous applications seeking condonation of delay in re-filing the appeals. Since no serious objection has been raised by the learned counsel for the Revenue-respondent, therefore, the same are allowed as prayed.
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2009 (8) TMI 1114 - ITAT DELHI
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... ... ..... the assessee directly by NBCC which is also confirmed by allotment letter dated 28.4.1998 referred in the possession letter and in respect of which possession was handed over on 29.3.2000. The formalities which are pending are in respect of transfer deed pending for execution but neither the notes on account nor the auditor s report reveal that the possession was never taken. On the contrary provision was made in the accounts in respect of depreciation on the basis of payment made and possession taken over. We, therefore, hold that the assessee is entitled to depreciation. Merely because registration formalities were pending, claim of depreciation cannot be disallowed in view of the decision of Hon ble Supreme Court in the case of Mysore Minerals, 239 ITR 775 which has been followed by the Hon ble Delhi High Court in the case of CIT vs. Bharat Aluminium Co. Ltd., 292 ITR 600. 15. In the result, the appeal is partly allowed. Pronounced in the open court on 28th August, 2009.
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2009 (8) TMI 1113 - KERALA HIGH COURT
Penalty on the petitioner under section 45A of the Kerala General Sales Tax Act, 1963 challenged
Held that:- A reading of exhibit P13 order itself shows that the aforesaid six documents, both original and forged, have been attached as annexure D only as "samples of such originals as well as forged export documents as specimens testifying the fraud". If these documents are only specimens and samples, the petitioner cannot contend that the respondents have completed the penalty proceedings adopting sampling method. In fact, during the hearing of the case, the learned Government Pleader produced a file containing all the 137 export bills produced by the petitioner and the corresponding export bills obtained from the ports, all of which showed that the export bills produced by the petitioner contained forged signature of the port officer and that the goods mentioned in the originals were not HSD, but provisions, rice, etc. In this context the fact that it was burden of the petitioner to prove that the entire quantity has been shipped and therefore they are not liable for the penalty also cannot be forgotten. In this factual situation, contention is only to be rejected.
In this case, it is the mere commission of an offence that has been committed by the petitioner. Penalty confirmed. Appeal dismissed.
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2009 (8) TMI 1112 - KERALA HIGH COURT
Constitutional validity of the provisions introduced to the Kerala Tax on Luxuries Act, 1976 by the Finance Act, 2006 with effect from April 1, 2006, authorising levy of luxury tax at the rate of ₹ 5 per connection per month to be collected and remitted by every cable TV operator from the person enjoying the connection challenged
Held that:- It is the settled position that so long as the levy of tax is constitutional, the court has no authority to go into the reasonableness of the levy or justification of the same which are purely matters of legislative policy. Further, cable TV subscribers as a whole or any substantial number have not approached this court raising objection against the levy which means that there is general acceptability of the tax liability by those who are liable under the Act. We, therefore, find no merit in the challenge raised by the individual subscriber against the levy of luxury tax on cable TV subscriber who enjoys the luxury.
Those who have access to only programmes from Doordarshan channels are not comparable to other class of cable TV subscribers who get access to large number of other channels and entertainment programmes. So much so, we do not find any substance in the allegation of discrimination pertaining to exclusion of subscribers who have taken only cable connection giving Doordarshan channels only. This contention also, therefore, fails and is rejected. The right to collect tax unlike in other statutes is not left to the discretion of the cable TV operators, but the statute makes it their duty to collect and remit the same to the Government. Thus the constitutional validity of the legislation upheld.
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2009 (8) TMI 1111 - MADHYA PRADESH HIGH COURT
Whether the items in question manufactured and supplied by the petitioner to M/s. Kirloskar Brothers Ltd., are covered by entry 7, Part IV of the Second Schedule to the Act or entry 89 of the First Schedule to the Act and are taxable accordingly?
Held that:- In the instant case, it is not in dispute that the items in question can also be used as accessories to the electric motor but when the electric motor itself is integral part and inseparable form the monoblock pump then in such a case items in question will not be accessories of the electric motor but accessories of the monoblock pump. When these items are used as accessories to the monoblock pump sets of less than 10 horse power capacity they are covered by entry No. 89 of the First Schedule. The accessories used in the pump sets covered by specific entry No. 89 of the First Schedule cannot be held to be covered by entry No. 7, Part IV of the Second Schedule which is a general entry in respect of electric machine, its part and accessories.
Thus, we set aside the impugned order of the Commissioner dated October 12, 2004 and hold that the "terminal boxes" and "fan covers" sold by the petitioner to Kirloskar Brothers and used as accessory in monoblock pump sets below 10 horse power mentioned in annexure B/2 of the petitioner’s applications under section 68 are covered by entry No. 89 of the First Schedule. Appeal allowed.
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2009 (8) TMI 1110 - KERALA HIGH COURT
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... ... ..... proceedings are obviously in respect of the CST assessment and hence there is absolutely no power, competence or jurisdiction for the second respondent for having passed exhibits P4 and P5 orders which hence are impugned in the present writ petition. Heard the learned Government Pleader as well, who submits with specific reference to section 9(2) of the CST Act that the idea and under standing of the petitioner, as to the relevant provisions of law and the scope of assessment are quite wrong and misconceived. This court finds that the learned Government Pleader is fully justified in making the said submission and the legal position is crystal clear. This court does not find any reason to interfere with the impugned order and the remedy of the petitioner, if aggrieved with regard to the fixation of the facts and figures, lies elsewhere. The writ petition fails and it is dismissed without prejudice to the rights of the petitioner to pursue such statutory remedy, if so advised.
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