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Showing 181 to 200 of 1599 Records
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2013 (10) TMI 1419
Validity of assessment - Held that:- the assessment of the assessee has been completed within the time limit prescribed u/s. 153B(1)(b) of the Act hence, the assessee should not have any grievance.
Addition towards unaccounted sales - Held that:- We find that except the estimate nothing is there on record to suggest that the assessee has invested ₹ 4,50,000/- as seed capital. At the same time unaccounted investment cannot be ruled out also. We, therefore, sustain the addition to ₹ 1,00,000/- and accordingly the assessee gets the partial relief.
Addition on the basis of the DVO report - Held that:- We find that this issue stands covered in favour of the assessee by the decision of the Hon'ble Supreme Court in the case of Sargam Cinema Vs. CIT [2009 (10) TMI 569 - Supreme Court of India ] wherein held Matter could not refer to the Departmental Valuation Officer without the books of account being rejected.
Cash seized during the course of search - whether cash seized should have been adjusted against the advance tax payable in view of Sec. 132B of the Act and no interest should have been levied u/s. 234B and 234C of the Act - Held that:- The Learned Counsel fairly admitted that no specific request was made by the assessee for adjusting the seized cash. In our opinion, if the assessee has not requested the Department for adjustment of the seized cash, in such situation the assessee cannot escape from the levy of interest u/s. 234B and 234C of the Act.
Addition towards the low house hold expenditure - Held that:- Assessing Officer has passed the order u/s. 154 on 03-02-2010 and reduced the addition as there was a mistake in the tabulation. The Ld. CIT(A) gave the relief by 50% reducing the addition. It is true that the addition on account of short house hold expenditure is not based on any concrete material but the reasons given by the Ld. CIT(A) are quite elaborate to support his order and we accordingly sustain the addition.
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2013 (10) TMI 1418
Assessee is entitled to exemption under Section 10AA - Hon’ble Tribunal (ITAT) is correct in law in upholding the finding of the learned Commissioner of Income Tax (Appeals) that the trading activity carried on by the SEZ unit of the respondent – assessee is to be considered as “services” eligible for exemption under Section 10AA of the Income Tax Act by relying on the definition of “services” as per SEZ Rules.
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2013 (10) TMI 1417
Validity of re-assessment proceedings - approval granted by Commissioner of Income Tax instead of Additional Commissioner / Joint Commissioner - Held that:- It is duly recorded in the order of Ld. CIT(A) that the AO had obtained the approval of Commissioner of Income Tax on 31/3/2009. In support the assessee had also filed a letter issued by Commissioner of Income Tax, which is reproduced in the above part of this order. Therefore, there remains no dispute on the fact that re-assessment proceedings have been initiated on the approval received by the AO from Commissioner of Income Tax and the said approval was not given of Additional Commissioner / Joint Commissioner of Income Tax. There is also no dispute that the approval has been issued after a period of four years from the end of the relevant assessment year. If these facts are undisputed, then it has to be held that the reassessment proceedings based on an approval granted by Commissioner of Income Tax instead of Additional Commissioner / Joint Commissioner of Income Tax are required to be held to be invalid. The relevant portion of aforementioned decision has already been reproduced. Relying thereon, we decide this issue in favour of assessee.
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2013 (10) TMI 1416
Additional sale consideration received in respect of property - Undisclosed income - Held that:- The law on the subject is well-settled. The Revenue where it seeks to make an addition as representing undisclosed income of the Assessee, may do so on the basis of reliable material. An addition cannot be made on surmises or on the basis of hypothetical assumption.
In the present case, the finding of fact by the first appellate Authority was that there was no supporting evidence available other than the seized e-mail to arrive at a conclusion that the amount of ₹ 6,60,00,000/- was an additional undisclosed income. The Tribunal, in appeal, has accepted the view of the CIT(A), while holding that the additions have been correctly deleted. We do not find that the findings of facts which have been arrived at by the first appellate Authority and which have been confirmed by the Tribunal, suffer from any perversity to warrant interference in appeal under Section 260A
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2013 (10) TMI 1415
Reopening of assessment - Held that:- AO was not justified in initiating the reopening proceedings in the present case merely on the basis of information received from the investigation wing of the department, without reference to any document or statement in absence of which, the information could not be regarded as a material or evidence that prime facie showed or established nexus or link which disclosed escapement of income. We thus while setting aside the orders of the authorities below in this regard hold that the notice issued u/s 148 of the Act in the present case was not as per the requirement of section 47 of the Act and is thus invalid. The assessment framed in furtherance to the said notice u/s 148 of the Act is thus quashed as null and void in consequence.
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2013 (10) TMI 1414
Revision u/s 263 - nature of expenditure - Held that:- The CIT(A) was bound to give a clear-cut finding whether the expenditure incurred by the Assessee is a capital expenditure or whether it is a revenue expenditure and whether the expenditure has accrued during the year or not. The order passed by the CIT(A), in our opinion, is cryptic and has not dealt with the issue involved. We, therefore, set aside the order of CIT(A) and restore this issue to the file of CIT(A) with the direction that the CIT(A) should re-decide this issue on merit whether the expenditure incurred by the Assessee is a capital expenditure or whether it is a revenue expenditure and if it is a revenue expenditure, whether the expenditure has accrued during the year or not after giving proper and sufficient opportunity to the Assessee. Thus, this ground is allowed for statistical purpose.
Non deduction of tds - Held that:- The facts of the present case, are governed by section 40(a)(i ) of the Act 1961. Order passed by the Assessing Officer, in our view, is legal, proper and in accordance with the Scheme of Act 1961. In view of which we have taken in the matter, the appeal deserves to be allowed by quashing and setting aside the Order passed by the learned Commissioner of Income-Tax (Appeals)
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2013 (10) TMI 1413
Public servant Prosecution for an offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act - Held that:- It is an admitted position that in none of the judgments relied on by the appellant, this Court had considered any provision similar to Section 87 of the Rajasthan Municipalities Act and, therefore, those judgments cannot be read to mean that a Municipal Councillor in no circumstance can be deemed to be a public servant. Mr. Adhiyaru points out that provisions pari materia to that of Section 87 of the Rajasthan Municipalities Act did exist in the respective enactments under consideration in these cases and, therefore, it has to be assumed that this Court, while holding that Municipal Councillors are not public servant, must have taken note of the similar provision. However, in fairness to him, he concedes that such a provision, in fact, has not been considered in these judgments. We are of the opinion that for ascertaining the binding nature of a judgment, what needs to be seen is the ratio. The ratio of those cases is that Municipal Councillors are not public servants under Section 21 of the Indian Penal Code. But Section 87 of the Rajasthan Municipalities Act, as discussed above, make Councillor and member of Board a public servant within the meaning of Section 21 of the Indian Penal Code. Hence, all the judgments of this Court referred to above are clearly distinguishable.
Not only this, in the case in hand, we are concerned with the meaning of the expression ‘public servant’ as defined under Section 2(c) of the Prevention of Corruption Act, 1988 and, hence, decisions rendered by this Court while interpreting Section 21 of the Indian Penal Code, which in substance and content are substantially different than Section 2(c) aforesaid, shall have no bearing at all for decision in the present case.
As the trial is pending since long, we deem it expedient that the learned Judge in seisin of the trial makes an endeavour to dispose of the trial expeditiously and in no case later than six months from the date of receipt of a copy of this order.
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2013 (10) TMI 1412
Issues involved: Interpretation of Notification No. 12/2003-ST for service tax on maintenance or repair service, consideration of value of material for retreading of tyres, applicability of extended period of limitation for demand and penalty under Sections 76 and 78 of the Finance Act.
Interpretation of Notification No. 12/2003-ST: The respondents contended that the value of material supplied on payment of appropriate VAT should not be considered for service tax payment, citing the case of Wipro GE Medical Systems Pvt. Ltd. vs. CST, Bangalore. However, the Tribunal, relying on the case of Safety Retreading Co. (P) Ltd., held that the maintenance and repair service is distinct from works contract service for service tax purposes. It was noted that the respondents failed to prove satisfaction of conditions under Notification 12/2003-ST, leading to the setting aside of the Commissioner (Appeals) order.
Consideration of value of material for retreading of tyres: The Revenue argued that the value of material should be included for service tax calculation based on the Tribunal's decision in the case of Safety Retreading Company (P) Ltd. vs. CCE, Salem. The Tribunal concurred, emphasizing that the value of rubber used in retreading tyres is relevant for service tax under maintenance and repair service, thereby declaring the impugned order unsustainable and setting it aside.
Applicability of extended period of limitation: Regarding the extended period of limitation, similar to the case of Safety Retreading Co. (P) Ltd., a difference of opinion arose and was referred to a Third Member. The Tribunal concluded that demands beyond the normal limitation period are not sustainable, leading to the dismissal of penalty under Section 78 of the Finance Act. Consequently, the demand and penalty beyond the normal period were set aside, while upholding the rest of the impugned order. The appeal and cross objections were disposed of accordingly.
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2013 (10) TMI 1411
Assessee is entitled for deduction under S.80IA of the Act on the profit computed by the Assessing Officer in respect of the project in Cauvery Basin, Trichy(Tamil Nadu) as the assessee is a developer and not a works contractor as presumed by the Revenue. The circular issued by the Board, relied on by learned counsel for the assessee, clearly indicate that the assessee is eligible for deduction under section 80IA (4) of the Act. The department is not correct in holding that the assessee is a mere contractor of the work and not a developer.
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2013 (10) TMI 1410
Unexplained cash credit - Held that:- The companies from which the share application money had been received by the assessee-company were genuinely existing and the identity of the individual investors were also established and they had confirmed the fact of making investment, the finding that assessee had discharged initial burden and addition under Section 68 could not be sustained
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2013 (10) TMI 1409
Presumption of marriage results into claiming of maintenance under Section 125,Cr.P.C. - Wider Interpretation of the term “wife” - HELD THAT:- if man and woman have been living together for a long time even without a valid marriage, then term of valid marriage entitling such a woman to maintenance should be drawn and a woman should be entitled to maintain application under Section 125,Cr.P.C. On the other hand, in the present case, it was proved, by cogent and strong evidence, that they had been married to each other.
Where a woman married a man with full knowledge of the first subsisting marriage then she must be aware that second marriage with such a person is impermissible and there is an embargo under the Hindu Marriage Act and therefore she has to suffer the consequences thereof. But, it would not apply to those cases where a man marries second time by keeping that lady in dark about the first surviving marriage.
Court gave a purposive interpretation of Section 125,Cr.P.C by considering the application of destitute wife or hapless children or parents, the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice”, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India states that India has chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice.
The decision of Capt.Ramesh Chander Kaushal vs. Veena Kaushal (1978) 4 SCC 70
For this reason, Court was not inclined to grant leave and dismiss this petition
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2013 (10) TMI 1408
The Supreme Court refused bail, requesting the Trial Court to expedite the trial due to the petitioner being in custody since 18.12.2011. Petitioner can renew bail application if trial not concluded within one year. Special leave petition is disposed of.
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2013 (10) TMI 1407
Issues involved: Appeal against Order-in-Appeal, Refund of Cenvat Credit under Rule 5 of Cenvat Credit Rules, 2004, Verification of conditions for refund, Eligibility for refund under Cenvat Credit Rules, 2004.
Refund Claim under Rule 5 of Cenvat Credit Rules, 2004:
The Revenue appealed against the Order-in-Appeal rejecting their appeal against the refund of Cenvat Credit amounting to Rs. 28,79,05,870 sanctioned to M/s. Automobile Corporation of Goa Ltd. Honda. The Revenue contended that the adjudicating authority did not verify if all conditions under Notification No.5/2006-CE(NT) were met for granting the refund. The lower appellate authority upheld the refund, stating that the claims were prima facie admissible under Rule 5 of Cenvat Credit Rules, 2004, subject to documentary substantiation.
Verification and Eligibility for Refund:
The history of the case involved multiple rounds of litigation where the lower appellate authority directed verification of refund claims by the jurisdictional Assistant Commissioner. The Assistant Commissioner verified the claims and sanctioned the refund after excluding a time-barred amount. The lower appellate authority upheld the sanction of refund, emphasizing that the claims had been audited and verified at various levels. The Revenue contended that the Assistant Commissioner did not verify the claim as required by Notification No.5/2006.
Judgement:
The Tribunal found no infirmity in the lower appellate authority's order, which upheld the sanction of refund after thorough verification and audit. The Tribunal noted that the case had already undergone scrutiny up to the CESTAT level, with the appellant's claim consistently upheld. The Tribunal rejected the Revenue's appeal, stating that if any defects were found in the refund applications, they should have been raised during the pre-audit stage. As no such objections were raised, the Tribunal concluded that the Revenue's appeal lacked merit and therefore rejected it.
Separate Judgement by Judges:
No separate judgement was delivered by the judges in this case.
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2013 (10) TMI 1406
Compensation for additional cost on account of increase in the rate of service tax on insurance premium under the insurance policy - compensation towards additional cost incurred on account of increase in the rate of service tax, though qua bank guarantee charges.
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2013 (10) TMI 1405
Opportunity of bearing heard - essence of principles of natural justice - Held that:- We are of the considered opinion that this matter deserves to be restored back to the file of the AO to be decided de novo as per law, needless to say after providing an adequate opportunity of hearing to the assessee. We, therefore, restore this issue back to the file of the AO to be decided afresh as per law after analyzing the facts of the case. Side by side, we hereby direct the assessee to present before learned AO either in person or through an authorized representative within 30 days on receipt of this order and assist the AO in all respect to get this appeal finalized at an early date. In any case, AO is at liberty to proceed as per law
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2013 (10) TMI 1404
The Appellate Tribunal CESTAT CHENNAI dismissed the appeal due to non-compliance of the stay order under Section 35F of the Central Excise Act, 1944. The applicant failed to make the required predeposit of Rs. 65 lakhs despite extensions granted.
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2013 (10) TMI 1403
Deduction u/s. 80IA(4) claim allowed
Disallowance u/s 14A - Held that:- Admittedly Rule 8D of the I.T. Rules is not applicable for the A.Y. 2008-09 and this legal position has been clarified by the Hon'ble High Court of Bombay in the case of Godrej and Boyce Mfg. Co. Ltd. Vs. DCIT (2010 (8) TMI 77 - BOMBAY HIGH COURT). Now the next question is whether there, any justification to apply Sec. 14A on the facts on this particular case. As per the record, the assessee’s interest free funds are more than the investment made in the shares of the subsidies. We, therefore, concur with the finding of the Ld. CIT(A) that there is no justification for making the disallowance at least in this year by invoking Sec. 14A of the Act.
Deduction u/s. 80IA(4) - exemption u/s. 10A - Held that:- In the case of Gem Plus Jewellery India Ltd. (2010 (6) TMI 65 - BOMBAY HIGH COURT) the issue was in respect of computation of the profits and gains derived from export for the purpose determined the exemption u/s. 10A. In the said case, disallowance of the PF/ESIC payments had been made because of the statutory provisions i.e. Sec. 43B which was in respect of employer’s contribution and Sec.36(1)(v) r.w.s. 2(24) (x) in the case of employee’s contribution which have been deemed to be the assessee’s income. The Hon'ble High Court held that the disallowance was added back by the Assessing Officer which has increased in the business profits of the assessee and exemption u/s. 10A is allowable with reference to such enhanced income. We, therefore, following the principles laid down by the jurisdictional High Court in the case of Gem Plus Jewellery India Ltd. (supra) allow the plea of the assessee and direct the Assessing Officer to consider the said addition for the purpose of computing the deduction u/s. 80IA(4) of the Act.
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2013 (10) TMI 1402
As CIT(A) has passed ex parte order we restore all these appeals back to the file of the learned CIT(A) for de novo appellate order after giving due opportunity of hearing to both the parties. The assessees are directed to cooperate with the appellate proceedings before the learned CIT(A).
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2013 (10) TMI 1401
Revision u/s 263 - Held that:- The non application of mind by the assessing officer to the material available on record with regard to the amount recovered by the police amounts to an error which is prejudicial to the interest of the revenue. No doubt, the addition made in the hands of Shri Abdul Rasheed was deleted by the CIT(A). But this fact has to be examined by the assessing officer and whether the assessee has explained the source for the above said money or not has to be verified and reasons recorded in the assessment order itself. Since the assessing officer has not verified the source for the above said amount, this Tribunal is of the considered opinion that the Administrative Commissioner has rightly exercised his jurisdiction u/s 263 of the Act
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2013 (10) TMI 1400
No proper regulatory regime - For monitoring harmful effects of soft drinks on human health, particularly children - Mandatory disclosures on the labels of soft drinks - Disclosure of warnings with particular ingredient, and its harmful effects - Proper mechanism to check & control “Food Additives” - Check and control the misleading advertising - HELD THAT:- Food and Safety Standards Authority of India, to gear up their resources with their counterparts in all the States and Union Territories and conduct periodical inspections and monitoring of major fruits and vegetable markets to ascertain whether they conform to such standards set by the Act and the Rules. Penal provisions are also provided in the Act. It is, therefore important that the provisions are properly and effectively implemented so that the State can achieve an appropriate level of human life and health, safeguarding the right to life guaranteed under Article 21 of the Constitution of India.
The Writ Petition is disposed of with the above directions to strictly follow the provisions of the FSS Act as well as the Rules and Regulations framed thereunder.
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