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Showing 241 to 260 of 697 Records
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2011 (11) TMI 643 - MADHYA PRADESH HIGH COURT
Waiver of pre-deposit - all aspects not considered - principles of natural justice - Held that:- The Tribunal committed an error in not appreciating the effect of the judgment cited by the counsel for the petitioner before it and that the prayer for dispensing with the requirement of predeposit need to be examined afresh by the tribunal after considering the judgments which have been noted above and other judgments if any cited before tribunal in the course of arguments - petition allowed by way of remand.
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2011 (11) TMI 642 - SC ORDER
Seizure of goods - Provisional release of seized vessel "old and used Swiber Victorious" - appellant has imported a vessel on Charter Hire basis and cleared duty-free import on re-export basis for Coastal run at Mumbai under Bill of Entry no. 2606686 dated 18.01.2011 by declaring assessable value of USD 23.537 million under valid Essentiality Certificate dated 12.01.2011 for execution of contractual work of petroleum operations for ONGC, exempted under Sr. no. 241 of table & list 12 of Customs Exemption Notification no. 21/2002 dated 1.03.2002 - Undervaluation.
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2011 (11) TMI 641 - ITAT AHMEDABAD
Computation of capital gain - deed of transfer of the flat - application of section 50C - Held that:- CIT (A) observed that payment of ₹ 59,16,000/- was not only related to the flats sold but it related to other properties and relinquishment of other rights also. The ld. CIT (A) was of the view that 1/3rd portion of payment in lieu of vacation of the flat will be justified.
The assessee did not furnish any other basis. In absence of material a different estimation of allocation of the payment of ₹ 59,16,000/- at this stage is not possible. We, therefore, confirm the order of the ld. CIT(A) on the issue as there is no contrary material on record.
As regards valuation of flat as on 1.4.1981 the admitted facts of the case are that the value declared by the assessee is supported by valuation report of a Registered Valuer. The AO has taken different valuation without obtaining valuation report from the DVO. The AO has taken the value as on 1.4.1981 on other basis. We are of the view that assessee’s valuation as on 1.4.1981 is supported by valuation by a technical person i.e. report of a registered valuer and contrary to that no such material or departmental valuation report is available on record. Merely on the basis of other general enquiries the valuation declared by the registered valuer cannot be substituted. We, therefore, set aside the orders of Revenue authorities on this issue and direct the AO to adopt the valuation of the flat as on 1.4.1981 as declared by the assessee.
As regards application of section 50C the ld. AR has himself conceded, therefore this ground of the assessee is rejected. The AO is directed to recalculate the capital gain as per above discussion.
This matter should be restored back to the file of AO for deciding the issue afresh as recomputation of capital gains has also been restored back to the AO for recalculation
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2011 (11) TMI 640 - GUJARAT HIGH COURT
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... ... ..... fer of DEPB credit by an assessee only the amount in excess of the face value thereof would form part of profit as envisaged in clause (iiid) of section 28. We, therefore, answer the question in favour of the Revenue and against the assessees. 45. Before concluding we reiterate that we have proceeded on the basis of three unquestioned premises (i) that the statutory provisions applicable in all cases is same as obtained in the assessment year 2003-04, (ii) that all assessees at the relevant time had turnover of more than 10 crores and (iii) that the cases involved are instances of transfer of DEPB credits. 46. In the result, to the extent mentioned above, decisions of the Tribunal involved in respective appeals are reversed. The appeals are allowed accordingly. 4. In the aforementioned premise this Tax Appeal also requires similar treatment, on setting aside the order impugned of Tribunal. Tax Appeal is allowed in the aforementioned premise and stands disposed of accordingly
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2011 (11) TMI 639 - SUPREME COURT
Whether priority given to the dues payable by an employer under Section 11 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short, `the EPF Act') is subject to Section 529A of the Companies Act, 1956 (for short, `the Companies Act') in terms of which the workmen's dues and debts due to secured creditors are required to be paid in priority to all other debts?
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2011 (11) TMI 638 - ITAT VISAKHAPATNAM
Deduction u/s 80IB(10) - revision u/s 263 - Held that:- The requirement of law u/s 80IB(10) for allowing a deduction under this section is only that the project should be commenced and completed within the period prescribed under clause (a) of this section 80IB(10) of the Act. To prove the completion of project within the specified period if the assessee is not able to file a completion certificate other evidence in this regard may be taken into account to determine the actual date of completion. Therefore, the filing of completion certificate is not a condition precedent for allowing a deduction u/s 80IB(10) of the Act. Moreover, we are dealing with the order of the CIT passed u/s 263 of the Act. It is a settled position of law that where the issue is debatable and the assessing officer has taken one of the plausible view, the assessment order cannot be revised u/s 263 of the Act. In the instant case, we are of the view that assessing officer has allowed the deduction u/s 80IB(10) after having examined the other evidence of completion of project which appears to be plausible view. Therefore, his order cannot be revised u/s 263 of the Act. We, therefore, find no merit in the order of the CIT in this regard.
Interest on partners drawings - Held that:- The withdrawals were made out of the interest free funds. Similar was the position in the assessment year 2007-08 in which the partners credit balance was at ₹ 61,17,712/- and the withdrawal by the partner were at ₹ 26,06,753/-. Since the withdrawals were made out of the interest free funds, no corresponding disallowance of interest paid on loans, can be made. The CIT has not brought out anything in his order that the interest bearing funds were withdrawn by the partners. Moreover, this aspect was duly examined by the assessing officer by making necessary queries. Therefore, we are of the view that without bringing out anything on record that interest bearing funds were diverted for a non-business purpose, the CIT is not justified in holding that the assessing officer ought to have disallowed the corresponding interest on the withdrawal made by the partners of the assessee firm. Thus, we are of the view that the CIT has wrongly exercised his jurisdiction u/s 263 of the Act and we accordingly set aside his order.
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2011 (11) TMI 637 - CESTAT NEW DELHI
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... ... ..... onerate on 3.11.2011. In support of his argument, he submits a visitor s pass issued for that date. 2. Now, if the Revenue is not able to give the relied upon documents and are not in a position to return the non-relied upon documents seized from the Appellants, I do not find any case for asking for any pre-deposit based on such order passed without complying with principles of natural justice. So, I waive requirement of depositing any dues arising from the impugned order for admission of appeal. Further, there shall be stay on collection of such amounts during pendency of the Appeals. 3. Further, no purpose will be served by keeping this appeal pending in the Tribunal. So Revenue is given final notice to inform whether they have supplied or whether they can supply the documents during the next date of hearing when the appeal itself is proposed to be disposed of finally. The case is now posted for final hearing on 19th December 2011. (Dictated & pronounced in open Court)
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2011 (11) TMI 636 - ITAT MUMBAI
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... ... ..... the appeal of the assessee for assessment year 2006- 07 being ITA No.4880/Mum/2009 which involves a solitary issue relating to the addition made by the AO and confirmed by the learned CIT(Appeals) by way of disallowance of expenditure incurred by the assessee on account of remuneration paid to Mr. Krishna Kachalia and the fees paid for his training. 16. Since this issue involved in assessment year 2006-07 as well as all the material facts relevant thereto are similar to assessment year 2005-06, we follow our decision rendered in assessment year 2005-06 in the foregoing portion of this order and uphold the impugned order of the learned CIT(Appeals) confirming the disallowance made by the AO on this issue. 17. In the result, the appeal of the assessee for assessment year 2005-06 being ITA No. 4879/Mum/2009 is partly allowed whereas the assessee’s appeal for assessment year 2006-07 being ITA No. 4880/Mum/2009 is dismissed. Order pronounced on this 18th day of Nov., 2011.
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2011 (11) TMI 635 - CESTAT AHMEDABAD
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... ... ..... he appellant. In our considered view, the entire issue needs to be gone into detail right from the allegations made in the show cause notice, defences taken by the appellant before the adjudicating authority and that can be done only at the time of final disposal of the appeal. At this juncture, we are of the considered view that the appellant has not made out a prima facie case for complete waiver of the pre-deposit of the amounts involved. However, keeping in mind that the appellant has deposited an amount of ₹ 37,90,754/- during the pending proceedings before the adjudicating authority, we direct the appellant to further deposit an amount of Rs. One crore (Rupees one crore only) within eight weeks from today and report compliance on 04.02.2012. Subject to such compliance being reported by the appellant, the condition of pre-deposit of balance amounts involved is waived and recovery thereof is stayed till the disposal of appeal. (Dictated and pronounced in the Court)
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2011 (11) TMI 634 - MADHYA PRADESH HIGH COURT
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... ... ..... ation, neither Section 340 nor Section 195 of I.P.C. are relevant. Paragraph 5 & 6 of the complaint if read together indicate that certain false declarations have been made by the applicant. These declarations are for the purpose of being used in adjudication (which are conceded to be judicial proceedings within the meaning of section 193 Cr. P.C.) in order to avail drawback which was not permissible. Learned counsel for the Union of India cited a decision that even inquiry is a judicial proceeding. In these circumstances, if the allegation is that evidence has been fabricated or false evidence has been given by the applicant with an intention that it may ultimately be used in the judicial proceedings is sufficient to constitute the offence under Section 193 of IPC. Again, this is not to mean that the applicant is to be held guilty of that charge but it only means that he is liable to be tried for the same. There is no merit in this petition. It is dismissed accordingly.
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2011 (11) TMI 633 - ITAT PUNE
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... ... ..... the financial year 1996-97 and determine the loss or depreciation which is required to be carried forward in accordance with the aforesaid discussion. In fact, we find that even the working adopted by the assessee in the return of income also does not correspond to the aforesaid principles. Under these circumstances, we, therefore, deem it fit and proper to set-aside the order of the Commissioner of Income-tax (Appeals) and to remit the matter back to the file of the Assessing Officer, who shall revisit the working of book profit for the purposes of section 115JB in so far as it relates to clause (iii) of Explanation 1 to section 115JB(2) of the Act. The Assessing Officer shall carry out the aforesaid limited exercise in accordance with our aforesaid discussion and after allowing the assessee a reasonable opportunity of being heard as per law. 21. In the result, appeal of the assessee is partly allowed. Decision pronounced in the open court on this day of 30th November, 2011
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2011 (11) TMI 632 - DELHI HIGH COURT
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... ... ..... falling under the Commissionerate at Indore, M.P. The decision of this Court in Bombay Snuff Pvt. Ltd. (supra) was upheld by the Supreme Court in the case of Ambica Industries v. Commissioner of Central Excise 2007 (213) E.L.T. 323 (S.C.). In view of the fact that in the present case the situs of the adjudicating authority falls within the Central Excise Commissionerate, Indore, the appropriate High Court would be the Madhya Pradesh High Court at Indore and not this court. Consequently, we allow these applications. The appeals are, therefore, permitted to be withdrawn by the appellant and the same may be filed before the High Court of Madhya Pradesh at Indore. These applications and the appeals stand disposed of accordingly.
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2011 (11) TMI 631 - ITAT PUNE
Claim of deduction under section 10A in respect of Unit-B primarily - whether the said Unit is neither separate and nor has a distinct identity but was a mere expansion of the existing business - Held that:- Approach of the Assessing Officer is untenable, inasmuch as on facts and in law, as succinctly brought out by the Commissioner of Incometax (Appeals), Unit-B is entitled to be understood as a separate and independent Unit for the purpose of claiming deduction under section 10A of the Act. Moreover, in the course of hearing before us, the learned Counsel for the respondent-assessee pointed out that even after the expiry of tax holiday period of 10 years in Unit-A, the activities and profits of Unit-A have shown positive growth and this itself shows that there was no intention to claim separate deduction for Unit-B merely for the purposes of enjoying tax holiday. The aforesaid plea has not been controverted before us. Considering the totality of circumstances, in our view, the Commissioner of Income-tax (Appeals) rightly dis-agreed with the apprehension of the Assessing Officer on this matter and has correctly upheld the assessee’s claim for treating Unit-B as a separate and independent Unit for the purposes of claim of deduction under section 10A of the Act. In this view of the matter, we, therefore, find no merit in the Ground of appeal raised by the Revenue and the same is dismissed accordingly.
Incomes by way of sales-tax refund, liabilities no longer required written back and Profit on sale of assets are eligible incomes for computing deduction under section 10A of the Act for Unit-A
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2011 (11) TMI 630 - GUJARAT HIGH COURT
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... ... ..... have jurisdiction to decide an appeal in respect of any order passed by the Commissioner (Appeals) under Section 129A, where order relates to any goods imported or exported as baggage. 6. It could not be pointed out by the learned advocate as to how any error is committed by the Tribunal in interpreting the law in the order impugned. The provision relied upon unequivocally speaks of the Tribunal having no jurisdiction in a matter which is relating to the goods imported and exported as baggage and as these facts are apparent in the matter on hand, there does not appear to be any infirmity or error having been committed by the Tribunal in passing such an order. 7. Resultantly, this appeal deserves no further consideration and is dismissed. We clarify at this stage that as remedy of appeal is not available to the appellant and as that order is confirmed in this Tax Appeal, this order shall not debar the appellant to pursue any other and further legal remedies available to him.
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2011 (11) TMI 629 - CESTAT NEW DELHI
Time limitation - wrong availment of credit - whether proviso to Section 11A (1) of CEA, 1944 would be invoked keeping in view the facts of the case that there is no allegation that wrong availment of Cenvat credit took place on account of wilful misstatement, suppression of fact etc., on the part of the assessee? - Held that: - the SCN does not make any allegation of misstatement or deliberate contravention of the provisions of the CEA, 1944 or of the Rules made thereunder with intent to payment of duty and, as such, the proviso to Section 11A (1) has not been invoked. In the order-in-original passed by the Assistant Commissioner simply confirms the demand without considering the aspect of limitation, though in course of hearing, this point had been raised. Even the para 2 of the SCN mentions that the alleged wrong availment of Cenvat credit had been detected by the audit on the basis of the records produced by the respondent - also, there was bonafide doubt about excisability of the goods due to divergent views of the High Courts, extended period of 5 years could not invoked - Cenvat credit demand is hit by limitation - appeal dismissed - decided against Revenue.
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2011 (11) TMI 628 - CALCUTTA HIGH COURT
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... ... ..... no reason and is cryptic. Therefore, the order dated 16th May, 2011 cannot be sustained and is, thus, set aside and quashed. Accordingly, the writ petition is allowed. Hence, the Customs and Central Excise, Settlement Commission, Kolkata is directed to hear the application dated 14th March, 2011 afresh and shall pass a reasoned order to be communicated to the petitioner within eight weeks from date of presenting a certified copy of this order after giving an opportunity of hearing. 4. I make it clear that I have not gone into the merits of the application filed before the Commission. 5. Since the writ petition is disposed of at the stage of admission without calling upon respondents to file affidavits, controverting the allegations, allegations made are deemed not to have been admitted by them. 6. No order as to costs. 7. Urgent certified photocopy of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.
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2011 (11) TMI 627 - KARNATAKA HIGH COURT
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... ... ..... vision Bench of this court in W. A. No. 2417 of 2007 (Volvo India Pvt. Ltd. v. State of Karnataka 2013 1 VST-OL 586 (Karn)) vide judgment dated April 2, 2009 held that section 8(5) of the CST Act is prospective in nature and only a benefit is extended and the same cannot be considered as a matter of right. Further it is held that the assessee who wants to avail of benefit under section 8(5) of the CST Act requires to fulfil the conditions mentioned therein. In the instant case admittedly the petitioner has not produced form No. C to take benefit under the amended section 8(5) of the CST Act. Therefore the assessing authority committed an illegality in granting tax exemption benefit to the petitioner-company even in the absence of production of form C. Rightly the reassessing authority reversed the order of assessment making the petitioner-company liable to pay tax. I find no justifiable ground to interfere with the same. Accordingly, the writ petitions are here by dismissed.
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2011 (11) TMI 626 - ITAT AGRA
Addition on account of net profit rate of 8% to the gross receipts -apply the net profit @ 8% on net receipt after reduction of cost of material ad other charges deducted - Held that:- Cost of material reimbursed cannot be a part of the contract receipt which has rightly been deducted by the ld. CIT(A) and therefore, we find no error in his order.
Separate addition u/s. 40(a)(ia) - Held that:- Disallowance made under section 40(a)(ia) of the Act is independent of any other provisions of the Act.The turnover of the total sales, gross receipts or turnover from the business or profession is less than the monitory limit as provided under section 44AB is without any material on record in the preceding Assessment Year. Nothing has been placed by the assessee in the Paper Book containing 85 pages. Further, the remand report has also not confirmed total sales, gross receipts or turnover to be below the monitory limit specified under section 44AB of the Act in the preceding year. Therefore, in the circumstances and the facts of the case, the ld. CIT(A) is not justified in deleting the addition made by the Assessing Officer.
Unexplained opening balance of the assessee’s capital - Held that:- This is the first year of the assessee and, therefore it was argued that there is no possibility of any income and which cannot be introduced as opening capital which of course submitted by the ld. Authorised Representative in his submission dated 16.06.2009 is out of the Savings Bank Account of the assessee maintained with ICICI Bank, Sanjay Place as at 01.04.2005. The bank account number is 628701501674. Addition to be deleted.
Addition on account of investment in Car and scooter - Held that:- As submitted that the car has been purchased from the borrowed fund from ICICI Bank, Agra and the copy of loan account was submitted and the scooter was introduced in business as capital contribution by the proprietor at its cost price which was taken on loan and an installment of ₹ 3010/- per month was being paid to repay the loan on scooter. Therefore, in the circumstances and facts of the case, we find no error in the order of the ld. CIT(A) who has rightly deleted the addition made by the A.O.
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2011 (11) TMI 625 - GUJARAT HIGH COURT
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... ... ..... les of maintenance of confidence by the Sarpanch of Members of the Gram Panchayat. Hence, we find that in the meantime, until the revision is finally heard, the interim relief deserves to be granted, staying the operation and implementation of the order passed by the District Panchayat in appeal. Consequently, respondent No.5 shall not be entitled to hold the office as Sarpanch of the Gram Panchayat and the person eligible to hold the office of the Sarpanch shall be Up-Sarpanch, unless he is disqualified to hold the post. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. (Jayant Patel, J.) (Akil Kureshi, J.) (R. M. Chhaya, J.) After the pronouncement of the judgement and order, Mr.Kavina, learned Counsel with Mr.Majmudar for respondent No.5 prays to suspend the operation of the judgement and order for some time, so as to enable his client to approach before the higher forum. Considering the facts and circumstances, the said request is rejected.
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2011 (11) TMI 624 - CALCUTTA HIGH COURT
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... ... ..... s in this proceeding. Considering the balance of convenience and keeping in view the interest of both the parties we think following course of action for the time being would subserve the interest of justice;- The respondent shall prepare statement in writing detailing stocks of any grade lying at their hands and the places where the same are lying, and the conditions thereof. This shall be certified by the learned Advocate-onrecord of the respondent and such statement shall be handed over to the learned Advocate-on-record of the appellant within a fortnight from date. This, however, would be without prejudice to the rights and contention of the parties and it would be taken into consideration, if required, by the learned Trial Judge later on. The allegations contained in the petition are not admitted by the respondent, since we have not called upon to file any affidavit-in-opposition. All parties are to act on a photostat signed copy of this order on the usual undertakings.
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