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Case Laws
Showing 181 to 200 of 655 Records
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2005 (7) TMI 551 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs used - Penalty - Demand - Limitation - Suppression ... ... ... ... ..... lty under Rule 209A was imposable. We however reduce the penalty to Rs. 50,000/- (Rupees Fifty thousand only) having regard to the facts and circumstances. 10. emsp Penalties were imposed on the dealers who supplied the inputs. No collusion between them and the input user is brought out. The fact that the manufacture was misusing the Modvat scheme cannot bring out collusion with the dealers. This part has to be separately established. The Department failed to do so. We, therefore, set aside the penalties on the dealers. 11. emsp The appeals are disposed off on the following terms (1) Reversal of credit ordered by the Commissioner except reversal order to the tune of Rs. 4,38,483/- is confirmed. (2) Penalty on M/s National Torch and Tubes is reduced to Rs.2 lakhs (Rupees Two lakhs only). (3) Penalty on Shri S.G. Lakhoti, the Power of Attorney holder of the firm is reduced to Rs. 50,000/- (Rupees Fifty thousand only). (4) Penalty on others set aside allowing with their appeals.
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2005 (7) TMI 550 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs - Deemed credit ... ... ... ... ..... learned Commissioner (Appeals). In the case of M/s. Vikas Pipes v. CCE, Chandigarh-II, supra, the Hon rsquo ble High Court has nowhere observed that the declaration ldquo duty liability to be discharged rdquo on the invoices by the manufacturer/supplier of the goods, would be sufficient for allowing the deemed Modvat credit to an assessee under the above said Notification. In that case, the duty liability was discharged but a further proof was required to be furnished by the assessee. It was in that context that the Hon rsquo ble High Court observed that the assessee could be called upon to prove the actual payment of duty by the manufacturer/supplier. But such is not the position in the case in hand. Here the duty liability had not been discharged by the manufacturer/supplier. Therefore, the impugned order allowing the deemed Modvat credit to respondents being erroneous in law, is set aside. The appeals of the Revenue are allowed. (Dictated and pronounced in the open court)
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2005 (7) TMI 549 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... h, I am of the view that the differential credit availed extra by the appellants is liable to be reversed by them. Similarly, after going through the above findings of the appellate authority on the point of time bar. I am of the view that the appellants has not been able to make out any prima facie case even on this count. I also find that the appellants have not pleaded any financial hardship in their stay petition and has also not attached or produced any evidence to that effect. As such, in view of my prima facie observation, I direct all the three dealers to deposit the entire amount of credit within a period of ten weeks from today. Subject to deposit of the credit penalties imposed upon the dealer and upon the Director are dispensed with and then recoveries stayed during the pendency of the appeal. Matter to come up for ascertaining compliance on 12-9-2005, when their appeals itself would be taken up for final disposal after ascertaining compliance. (Dictated in Court)
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2005 (7) TMI 548 - CESTAT, MUMBAI
... ...
... ... ..... NVAT Rules. 7. emsp We find the appellants are a professionally managed company staffed with highly qualified and knowledgeable officers and there is no reason for them not to comply with the provisions of the Central Excise law. The case is about Modvat credit and Modvat credit is not duty. Therefore, M/s. Machino Montell (India) Limited rsquo s decision of the Larger Bench will not squarely apply to the facts of the case and therefore, the total penalty cannot be set aside nor the penalty can be withdrawn as imposed by the lower authorities. We would, therefore, consider that a penalty of Rs. 1,00,000/- would be appropriate. 8. emsp In the light of the aforesaid discussion and the case law submitted by the appellants, we find that imposition of 100 penalty is not justified when especially the recovery has been effected with interest. Accordingly, we feel it appropriate to reduce the penalty to Rs. 1,00,000/- and this appeal is disposed off accordingly. (Pronounced in Court)
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2005 (7) TMI 547 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case ... ... ... ... ..... further time as may be allowed by the Settlement Commission, or fails to comply with any other condition subject to which the immunity was granted and thereupon the provisions of this Act shall apply as if such immunity had not been granted. (iii) The immunity granted to the applicant(s) above, under sub-section (1) of Section 32K of the Central Excise Act, 1944 may, at any time, be withdrawn by the Settlement Commission, if it is satisfied that such person had, in the course of the settlement proceedings, concealed any particular material to the settlement or had given false evidence, and thereupon such person may be tried for the offence with respect to which the immunity was granted or for any other offence of which he appears to have been guilty in connection with the settlement and shall also become liable to the imposition of any penalty under this Act to which such person would have been liable, had no such immunity been granted. All concerned are informed accordingly.
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2005 (7) TMI 546 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case ... ... ... ... ..... further time as may be allowed by the Settlement Commission, or fails to comply with any other condition subject to which the immunity was granted and thereupon the provisions of this Act shall apply as if such immunity had not been granted. (iii) The immunity granted to the applicant(s) above, under sub-section (1) of Section 32K of the Central Excise Act, 1944 may, at any time, be withdrawn by the Settlement Commission, if it is satisfied that such person had, in the course of the settlement proceedings, concealed any particular material to the settlement or had given false evidence, and thereupon such person may be tried for the offence with respect to which the immunity was granted or for any other offence of which he appears to have been guilty in connection with the settlement and shall also become liable to the imposition of any penalty under this Act to which such person would have been liable, had no such immunity been granted. All concerned are informed accordingly.
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2005 (7) TMI 545 - CESTAT, BANGALORE
Export - Conversion of Shipping Bills to DEPB Scheme ... ... ... ... ..... into the spirit of the Government Circulars and given more importance to its letter. In our view, the appellant would be entitled for the benefit of conversion into DEPB Shipping Bills in terms of the conditions in Para 4 (a), (b) and (c) read with condition given in Para 3 of the Circular No. 40/2003. Therefore, the entire issue is remanded to the Original authority to strictly examine whether these conditions have been fulfilled. If so, the appellants are entitled for the benefit. The fact that the appellant was not aware of the scheme or somebody told that they would not be entitled, etc. is not at all relevant and would not come in the way of conversion of the Shipping Bills and granting the benefit to the appellants. With these observations, we remand the matter to the Commissioner for fresh decision after giving an opportunity to the appellants. All the issues are kept open. (Operative portion of the order has been pronounced in the open court on completion of hearing)
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2005 (7) TMI 544 - ITAT COCHIN
Appellate Tribunal ... ... ... ... ..... imation on the record of the Assessing Officer in respect of the assessee rsquo s return of assessment year 2000-01 processed under section 143(1) of the IT Act. (ii)Original note put up by Shri G.R. Madhusoodanan Nair, Sr. Tax Assistant to the Assessing Officer, which is the starting point for initiation of the re-assessment proceedings challenged by the assessee in this appeal. (iii)The order-sheet of the re-assessment proceedings. 14. The Assessing Officer is directed to produce on the next date of hearing the record and documents mentioned in para 13 above before us. The Assessing Officer is further directed to allow the assessee or his Advocate to take inspection of the documents and record mentioned in para 13 above in his office during any of the working days before the next date of hearing. The registry is directed to post this appeal on 18-8-2005. The parties have to take notice of the next date of hearing of this appeal as mentioned in this order. Order accordingly.
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2005 (7) TMI 543 - ITAT MUMBAI
Deductions - Profits and gains from infrastructure undertaking ... ... ... ... ..... not necessary to adjudicate to this issue, whether machinery was installed or not. Similarly we have recorded a finding that assessee has violated section 80-IA(2)(v) in the earlier year. Similar position is available in this assessment year. Keeping in view both these factors assessee is not entitled to deduction under section 80-I. As far as the decision relied upon the assessee is concerned, this was not pointed out to the Tribunal while deciding ITA No. 287/Mum./2002. No doubt this decision is having persuasive value but could not be given weightage over and above the decision rendered by the Tribunal in assessee rsquo s own case. Because facts of each case always play important role in applying ratio of law on them. The facts of the assessee and judgment relied upon are not exactly similar. Taking into consideration the overall circumstances we partly allow this appeal of the revenue in terms of Tribunal rsquo s decision rendered in ITA No. 287/Mum./02, extracted supra.
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2005 (7) TMI 542 - ITAT BANGALORE
Interest chargeable, Rectification of mistakes ... ... ... ... ..... case of assessee for assessment year 1999-2000. In that case revenue attempted to charge interest under sections 234B and 234C vide order under section 154. Order under section 154 was set aside. Hence, we see no reason to interfere with the finding of learned CIT(A) who held that Assessing Officer was justified in refusing to delete the interest charged under sections 234B and 234C on the application filed by assessee under section 154. The issue is debatable and Assessing Officer was justified in refusing to rectify a debatable issue. 13. Another grievance of the assessee is that assessment order dated 19-3-2002 is passed beyond the period of limitation. No arguments were advanced. It is seen that appeal has been filed against order under section 154. It is also noticed that assessment order has been passed within the time period allowed as per provisions of section 153(1)(a). Hence there is no merit in the grievance of the assessee. In the result, the appeal is dismissed.
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2005 (7) TMI 541 - ITAT MUMBAI
Capital gains - Cost of acquisition ... ... ... ... ..... quisition of DW was held to be nil in this case also. There is no proposition laid down that cost of DWs will be not workable. 11. In Ganesh Enterprises rsquo case (supra) cited by learned DR, it was held that cost of acquisition of DW is the loss incurred on subscription and sale of NCDs. According to this decision of the Tribunal, cost of DWs would be difference between market price of NCDs and subscription price of NCDs. Thus, this decision supports the proposition that DWs had a cost of acquisition. 12. In Kamal Trading Co. rsquo s case (supra), it was held that application money paid by the assessee was the cost of acquisition of DWs. Thus, this decision also supports the preposition that DWs have cost which is workable. In view of the above, we hold that the CIT(A) was not justified in deleting the capital gains worked out on sale of DWs. Accordingly his order is reversed and that of Assessing Officer is restored. 13. In the result, the appeal of the revenue is allowed.
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2005 (7) TMI 540 - ITAT MUMBAI
Income from house property, ... ... ... ... ..... the requisite enquiries either himself or through the Assessing Officer for disposing of the matters. Reasonable opportunity of hearing shall be provided to both the parties. It was submitted by the learned counsel for the assessee that a flat purchased by the assessee was already in occupation of the present tenant when it was purchased and it is due to this reason that the rent of the flat was low. This aspect of the matter should also be examined by the learned CIT(A). 17. Before parting with the matter, it may be mentioned that we have considered the matter in the light of the provisions of the Bombay Rent Act as it is this Act which was in force during the relevant assessment years under appeal. This Act has now been replaced by the Maharashtra Rent Control Act, 1999 which has come into force from 31-3-2000. The new Act broadly follows the old Bombay Rent Act. 18. In view of the above, all the appeals filed by the revenue are treated as allowed for statistical purposes.
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2005 (7) TMI 539 - ITAT MUMBAI
Housing boards or authority - establishment of Corporation - modes of development of an area - Whether the income of the assessee is not exigible to tax by virtue of the exemption u/s 10(20A) of the Income-tax Act, 1961? -
Whether the Assessing Authority and the Tribunal were in gross error in holding that business of assessee has not commenced and as such, its income u/s 28 of the Income-tax Act, 1961 cannot be computed ?
HELD THAT:- A perusal of the order of the Assessing Officer makes it clear that the main thrust of the argument of the assessee before the revenue authorities was that the assessee falls within the scope of "Local Authority" as defined u/s 10(20) of Chapter III, which deals with income which do not form part of the total income. This plea of the assessee was rejected, and rightly so, by the Assessing Officer, following the decisions of the Hon’ble Supreme Court in the cases of Veljibhai Muljibhai Soneji [1963 (5) TMI 58 - SUPREME COURT], Calcutta State Transport Corporation [1996 (2) TMI 7 - SUPREME COURT] and in the case of U.P. Forest Corporation [1998 (3) TMI 5 - SUPREME COURT].
It was one of the contentions taken by the assessee in the instant case before the revenue authorities that Irrigation Minister is ex-officio Chairman; one of the non-official Member is nominated by the State Government as Vice Chairman; other officials like Chief Secretary and Secretary of the various departments are ex-officio Members; and five of the MLAs and 3 of the MLCs are also Members of the assessee and thus it has a ‘popular representation’. We are afraid; this is not what Hon’ble Supreme Court has stated that the "Members of the Corporation, either wholly or partly, directly or indirectly, must be elected by the inhabitants of the area". Section 3(2) of the VIDC Act does not say that ex-officio Chairman "must be elected by the inhabitants of the area". So also in the case of MLAs and MLCs. In short, the revenue authorities rightly rejected assessee’s claim of status of "Local Authority". The local citizens of the area should elect them directly or indirectly. Perhaps the case of Irrigation Minister, MLAs/MLCs can be considered as indirect election. On a careful study this is also to be rejected. Therefore, this plea of the assessee was rightly rejected and held that the assessee is not a "Local Authority" as defined under General Clauses Act, 1897.
We are of the view that the word "Authority" used in section 10(20A) does not necessarily require for a direct or indirect elected character unlike the word "Local authority" used in section 10(20). The authority should be one constituted firstly in India; secondly by or under any law enacted; and thirdly either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages or for both. In section 10(20) necessarily the Local Authority’s area of activity must be "within its own jurisdictional area"; whereas it appears in section 10(20A ) the area of activity is not limited to area but limited to the activity itself. The activity must be limited to either dealing with or satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages or for both.
Thus, the revenue authorities were not correct in holding that the assessee is not entitled to benefit u/s 10(20A), particularly relying on the decisions which deal with the powers of the "Local Authority". The Hon’ble Supreme Court in the case of Gujarat Industrial Development Corporation [1997 (8) TMI 3 - SUPREME COURT] has held, the word ‘development’ in section 10(20A) is to be construed liberally.
Hence, we answer Question No. (I) in favour of the assessee and against the revenue.
We are of the view that there is no doubt that the assessee had commenced its entrusted activity - business. Assessee-Corporation was formed for completion of the already existing projects or for further entrusted projects. There is no doubt that even before the projects were entrusted to the assessee, some portion of the canals were completed and water supplied to various fields and water charges were being collected by the Irrigation Department of the State. Merely because the assessee had taken over construction activities it does not mean that the assessee has not commenced the business. It is almost exactly like an industrial undertaking. If an existing undertaking is purchased by a new assessee, it does not mean that the new assessee had not commenced its business. The new owner may expand the existing undertaking and its capacity. To say that only when it is in full swing and completed the entire expansion the business commenced is an incorrect appreciation. We have no doubt that the view canvassed by the learned standing counsel has no legal sanctity.
Thus, we answer Question No. (II) also in favour of the assessee and against the revenue.
In the result, appeal of the assessee stands allowed.
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2005 (7) TMI 538 - ITAT MUMBAI
Revision - Challenged the Order passed by CIT u/s 263 - Claim u/s 37(1) - deferred revenue expenditure - method of accounting - HELD THAT:- It is not the case of the revenue that method of accounting adopted by the assessee is not permissible under the law. If the assessee is permitted under Companies Act to maintain its accounts and to claim the entire expenses as deferred revenue expenses and part of it is debited to the P & L account, the revenue cannot disallow the claim of the assessee that he has treated it to be deferred revenue expenses of the P & L Account if the expenses allowable u/s 37(1) of the Income-tax Act. For the purpose of Income-tax Act, we have to examine the nature of the expenses. If the nature of the expenses are allowable as incurred for business purposes, it should be allowed in toto irrespective of the fact that it was claimed to be deferred revenue expenditure for the purpose of the Companies Act or to show higher book profit to its shareholders.
Since the Assessing Officer has applied his mind while dealing with the issues and duly considered the explanations of the assessee, we do not agree with the findings of the CIT that the assessment order is erroneous and prejudicial to the interests of the revenue. We, therefore, hold that CIT acceded his jurisdiction u/s 263 of the Income-tax Act. We, therefore, quash his order.
In result, appeal of the assessee is allowed.
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2005 (7) TMI 537 - ITAT MUMBAI
Appellate Tribunal, Income escaping assessment, Return of income, etc., not to be invalid on certain grounds
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2005 (7) TMI 536 - ITAT MUMBAI
... ...
... ... ..... back the funds received by it out of which advance-tax is paid. None of this criteria will disentitle the assessee from the grant of interest under section 244A. Further, grant of interest is mandatory as there is a use of the word lsquo shall rsquo while directing the Assessing Officer to grant the interest. 10. In view of above, we hold that assessee is entitled for interest on the refund arising due to payment of advance-tax in the assessment year 1994-95 and as determined by the Assessing Officer vide its order under section 154 on 24-12-1997. The claim of the assessee that interest be granted from 1-4-1994 to 14-8-1995 when it requested to adjust the refund in the assessment year 1996-97 is reasonable and is liable for acceptance. In view of this the order of the CIT(A) is reversed. The assessee be granted interest under section 244A up to 14-8-1995 on the refund determined by the Assessing Officer for the assessment year 1994-95. Thus, appeal of the assessee is allowed.
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2005 (7) TMI 535 - CESTAT, MUMBAI
Demand - Clandestine removal ... ... ... ... ..... ot be sustained. Confiscation of land/building/plant/machinery is also set aside. 9. emsp Penalty on both the manufacturing units is sustainable in view of our upholding the duty demands both on shortage of inputs as well as final products and the illicit clearance of final products. However, in the totality of the facts and circumstances of the case, we reduce the penalty on M/s. Plastotex (Bombay) Pvt. Ltd. to Rs. 3,00,000/- (Rupees three lakhs) and the penalty on M/s. Omniplast (Bombay) Pvt. Ltd. to Rs. 4,00,000/- (Rupees four lakhs). As regards penalty on the General Manager, Shri A.C.B. Nambiar, while holding that he is liable to penalty, we reduce the penalty to Rs. 10,000/- (Rupees ten thousand) in each case. 10. emsp In the result, we uphold the duty demands in both cases, set aside confiscation of goods (both raw materials as well as finished products) and of land/plant/building/machinery, reduce the penalties to the extent set out above and partly allow the appeals.
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2005 (7) TMI 534 - CESTAT, MUMBAI
SSI Exemption - Option to pay full duty ... ... ... ... ..... ere absent. Heard the DR. The DR could not include any specific material in the grounds to over turn the findings as arrived by the ld. Commissioner (Appeals). It is well settled that the SSI unit can avail and opt for payment of duty at full rates and is required to pay duty on goods stenciled with the brand name of the Vehicle for which the Leaf Springs are designed. Merely because Board has permitted vide a classification that parts and Sr. Nos of original equipment suppliers will not disentitle SSI claim for such specified goods, the SSI unit cannot be forced to avail the SSI benefit. When the decision of the Apex Court on Brand name and Trade Name are considered, we find no reason to accept Leaf Springs marked TISCO or ACT POWER LEAF to be lsquo not branded rsquo goods and eligible to SSI benefit. We find no merits in the grounds taken to upset the Commissioner (Appeals) findings. 3. emsp Consequently Revenue in appeal is not upheld and is rejected. (Pronounced in Court)
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2005 (7) TMI 533 - CESTAT, NEW DELHI
Confiscation and penalty - Misdeclaration ... ... ... ... ..... curate export declarations made by the said exporter before it and could, on comparison of the CIF values declared by the exporter before them and the CIF values mentioned in the two invoices, authentically inform the Customs authorities here about such discrepancy. The document dated 24-7-99, which was an official report submitted in pursuance of the enquiries made by the department carried its own evidentiary value without resorting to any presumption. The contents of the said document were sufficient to establish the fact that the appellant had under-valued the goods covered by these two invoices, since the correct valuation declared before the Customs authorities of Hong Kong in respect of these two invoices as per their official record was now authentically communicated in this report. 9. emsp For the foregoing reasons, we do not find any valid ground for interfering with the impugned order. The appeal is, therefore, dismissed. (Dictated and pronounced in the open Court)
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2005 (7) TMI 532 - CESTAT, BANGALORE
Refund - Unjust enrichment ... ... ... ... ..... he cases where there is evidence for duty burden being passed on to the buyer, we allow refund to the tune of Rs. 35,50,906/- (Rs. 35,94,234/- minus Rs. 43,328/-) allowed vide OIA No. 37/2004-C.E., dated 23-2-2004, and an amount of Rs. 14,86,706/- allowed vide Order in appeal No. 38/2004 dated 24-2-2004, along with interest 12 p.a. from the date of payment of duty as per the Supreme Court rsquo s Order. We also uphold the sanction of interest by the Commissioner (Appeals) to the respondents on the refund amount of Rs. 22,75,046/- sanctioned earlier by DC, vide his Order No. 12/2002 dated 15-4-2002. But for the above modification, the, impugned orders are otherwise upheld and the Revenue rsquo s appeals are dismissed. 13. emsp Summing up (1) In respect of O-I-A No. 37/2004-C.E., Revenue rsquo s appeal is partially allowed by restricting the refund to Rs. 35,50,906/-. (2) In respect of O-I-A No. 38/2004, Revenue rsquo s appeal is rejected. (Pronounced in open Court on 1-7-2005)
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