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Case Laws
Showing 241 to 260 of 934 Records
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2013 (2) TMI 702
Whether termination of the contract and the forfeiture of the performance security for the breaches committed by the appellant were perfectly justified in the light of the report submitted by the agency deployed by the respondent to collect material regarding overcharging of fee and other violations committed by the appellant?
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2013 (2) TMI 701
Disallowance of expenditure - Held that:- We find that the CIT(A), after a detailed discussion on each and every aspect of the matter including the claim of expenditure and after examining the details filed by the assessee in respect of expenditure, came to a reasonable conclusion and addition to the extent of ₹ 5,00,000/- has been sustained for want of verification of expenditure and others and has rightly allowed relief of ₹ 45,46,166/- as sustaining 50% of expenses and running a business with remaining 50% expenses is impossible. The view taken by the CIT(A) appears to be fair and reasonable. We, therefore, confirm the order of CIT(A) in respect of disallowance of expenses.
Addition on account of creditors - Held that:- When the A.O. himself accepted the genuineness of the creditors before the CIT(A) in the remand report and the CIT(A) has deleted the addition to that extent, we are of the considered view that there is no error in the order of CIT(A) in deleting the addition
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2013 (2) TMI 700
The ITAT Mumbai dismissed the department's appeal against the order of CIT(A) regarding the deduction of Rs. 49.98 lacs u/s 54EC and section 54. The appeal was based on a rectification application by the assessee, which was allowed by the CIT(A). The ITAT found no merit in the department's appeal as there was no further modification in the direction. The appeal was dismissed on February 20, 2013.
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2013 (2) TMI 699
Issues involved: Challenge to order dismissing appeal on technical ground, review committee's recommendation, dismissal of appeals by Judicial Member based on technical defect.
Summary:
The High Court of Allahabad heard an appeal challenging the order dismissing the appeal on a technical ground. The appeal was allowed by the respondent, and a review was conducted by the Committee of Commissioners to determine if a second appeal should be filed before the Tribunal. The Committee recommended filing an appeal before the Customs, Excise & Service Tax Appellate Tribunal, New Delhi. However, the Judicial Member of the Tribunal rejected all appeals and the accompanying stay application solely on the technical ground that one of the Commissioners did not date below their signature on the recommendation.
Upon careful consideration, the Court found that the review committee had provided reasons for directing the Department to file an appeal, which the Judicial Member did not take into account. The Court opined that the Tribunal should have examined the grounds on which the Committee had directed the filing of appeals instead of dismissing them on a technical defect. The Court set aside the order and remitted the matter back to the Tribunal for a fresh hearing, emphasizing that the Tribunal should not dismiss the appeals on technical grounds but should evaluate them on their merits.
The Court acknowledged the respondents' prolonged suffering due to the absence of a stay order and urged the Tribunal to expedite the disposal of the appeals, ideally within three months from the date of communication of the Court's order. Consequently, the writ application was disposed of by the Court.
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2013 (2) TMI 698
Whether the appellant could be tried by the Judicial Magistrate, First Class, for the offences punishable under Sections 408, 420, 467, 468 and 471 of the IPC notwithstanding the fact that the First Schedule of the Code of Criminal Procedure, 1973 as amended by Code of Criminal Procedure (Madhya Pradesh Amendment) Act of 2007, made offences punishable under Sections 467, 468 and 471 of the Penal Code triable only by the Court of Sessions?
Whether the recent amendment dated 22nd February, 2008 in the Schedule-I of the Cr.P.C. is to be applied retrospectively?
Whether the cases pending before the Magistrate First Class, in which evidence partly or wholly has been recorded, and now have been committed to this Court are to be tried de novo by the Court of Sessions or should be remanded back to the Magistrate First Class for further trial?
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2013 (2) TMI 697
Issues Involved: Appeal against Service Tax demand u/s 73 of the Finance Act, 1994 for repair services provided by a machinery manufacturer.
Summary:
The appeal before the Appellate Tribunal CESTAT Mumbai was directed against Order-in-Appeal No. BR (16) 16/STC/2005, dated 29-7-2005 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-I. The appellant, M/s. M.L. Shah & Co. (Machinery) Pvt. Ltd., Thane, manufacturers of stone processing machines and electrical panels, provided repair services for machines and parts supplied to customers during 1998-99 to 2002-03. The department contended that the service fell under 'Consulting Engineers Service' and issued a show cause notice demanding Service Tax of Rs. 26,641/- u/s 73 of the Finance Act, 1994, along with interest and proposed penalties. The notice was adjudicated, confirming the Service Tax demand, interest, and penalties under various sections of the Finance Act. The lower appellate authority dismissed the appeal, leading the appellant to approach the Tribunal.
Upon review, the Tribunal noted that the appellant's activity of servicing/repairing machines did not fall under the definition of 'Consulting Engineer' as per Section 65(31) of the law. The appellant, being a machinery manufacturer, was not an engineering firm providing consultancy or advice, thus not meeting the criteria of 'Consulting Engineer's Service'. Consequently, the Tribunal set aside the impugned order and allowed the appeal with any consequential relief.
Therefore, the Tribunal ruled in favor of the appellant, determining that the repair services provided by the machinery manufacturer did not qualify as 'Consulting Engineer's Service' under the law, thereby overturning the Service Tax demand and associated penalties.
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2013 (2) TMI 696
Denial of input credit - Proper opportunity not granted - Held that:- In view of the limited opportunity of rebuttals as pleaded the matter is remanded to the learned Adjudicating Authority to re-examine the issue of input credit admissibility as stated above including the documents referred to in Para 5.2 of the first appellate order granting fair opportunity of defence to the appellant. - Matter remanded back - Decided in favour of assessee.
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2013 (2) TMI 695
Issues involved: Challenging an order passed on an Excise Stay Application under section 35G of the Central Excise Act regarding the deposit amount required for hearing of the appeal.
Summary:
The appellant filed an appeal challenging an order directing them to deposit Rs. 8 Lakhs as a precondition for the hearing of the appeal. The appellant raised the issue of not being allowed to cross-examine witnesses, citing a Supreme Court case to support their argument. Both parties agreed for the appeal to be heard and decided finally at the admission stage. The appellant contended that incriminating documents found during a search at other premises were wrongly used against them, as no search was conducted at their premises. They also requested an opportunity to cross-examine individuals relied upon by the department, which was denied. The extended period of limitation invoked was also disputed.
The High Court, after considering the submissions, found that the order passed by the Customs, Excise & Service Tax Appellate Tribunal did not address the points raised by the appellant. The Tribunal's decision was influenced by the presence of incriminating material without considering the appellant's arguments. Consequently, the High Court disposed of the appeal by reducing the deposit amount to Rs. 4 Lakhs instead of Rs. 8 Lakhs, to be paid within three weeks. The appeal was allowed in part, with no costs imposed.
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2013 (2) TMI 694
Issues: Interpretation of exemption notification conditions regarding Cenvat credit utilization and refund eligibility.
In this case, the main issue revolved around the interpretation of para 1A of the exemption notification introduced through an amendment. The respondent assessee had claimed a duty exemption under Notification No. 39/2001 but faced a dispute with the Department regarding the conditions, specifically para 1A, which required utilizing Cenvat credit for duty payment. The Department alleged that the assessee did not utilize the Cenvat credit as per the conditions, leading to a refund claim disallowance. The Tribunal upheld the appellate authority's decision in favor of the assessee, confirming their eligibility for the refund.
The crux of the matter was whether the assessee fulfilled the condition of utilizing the Cenvat credit available on the last day of the month for duty payment on goods cleared during that month, as mandated by the exemption notification. The Department argued that the assessee failed to meet this condition by utilizing the credit in December 2005 instead of earlier months. However, the assessee explained that procedural delays prevented immediate credit utilization, and they only utilized the credit when available in December 2005, exhausting the balance before paying in cash. The appellate authority and the Tribunal found in favor of the assessee, emphasizing that the condition was met as the entire credit balance was utilized before cash payment, as required by the notification.
The Court examined the records and affirmed the Tribunal's decision, stating that there was no evidence of the assessee holding unused Cenvat credit for the relevant period. The Court agreed that the condition stipulated in para 1A was fulfilled since the assessee exhausted the available credit before resorting to cash payment, as per the notification requirements. Consequently, the Court dismissed the Tax Appeal, concluding that no legal question arose from the case. Additionally, a Civil Application related to the matter was disposed of in light of the main judgment.
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2013 (2) TMI 693
The High Court of Jharkhand allowed the writ petition filed by the petitioner, directing the Commissioner (Appeals) to give an opportunity of hearing in a case related to Central Excise Act, 1944 and Finance Act, 1994. The decision was based on a previous court order in a similar case.
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2013 (2) TMI 692
The Supreme Court dismissed the Civil Appeal but extended the time for depositing the penalty by four weeks from the date of the judgment. No costs were awarded. (Case Citation: 2013 (2) TMI 692 - SC)
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2013 (2) TMI 691
Issues involved: Review of Tribunal order u/s 254(2) of the Income Tax Act, 1961 regarding applicability of section 40(a)(ia) of the Act.
The present Miscellaneous Application filed by the applicant-Revenue sought review of the Tribunal's order dated 15.5.2012 in ITA No.116/Chd/2012 concerning the Assessment Year 2007-08. The issue in question pertained to the applicability of section 40(a)(ia) of the Act, with the Tribunal basing its decision on the precedent set by the Special Bench. The applicant-Revenue argued that the narrow interpretation adopted could undermine the legal framework for enforcing TDS provisions, requesting the Tribunal to rectify the order and reinstate the applicability of section 40(a)(ia) to such cases (para. 2).
The learned D.R. for the applicant-Revenue was unable to identify any defects in the Tribunal's order upon being asked, while the learned A.R. for the assessee contended that a review through a Miscellaneous Application was not permissible under the Act (paras. 3-4).
Upon considering the arguments presented, it was noted that the applicant-Revenue sought the recall of the Tribunal's order for review based on certain facts. However, it was clarified that under section 254(2) of the Act, rectification of any mistake apparent from the record is allowed, but review of the Tribunal's order is not permitted under the same section. Consequently, the Tribunal found no merit in the Miscellaneous Application and dismissed it (para. 5).
In conclusion, the Tribunal dismissed the Miscellaneous Application filed by the applicant-Revenue, thereby upholding its original order (para. 6).
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2013 (2) TMI 690
Issues Involved:
The issues involved in this case are the challenge to the order of Commissioner (Appeals) setting aside penalties under Rule 26 of the Central Excise Rules, 2001, and the imposition of separate penalties for buying material without payment of duty.
Challenge to Order of Commissioner (Appeals):
The present appeal under Section 35(G) of the Central Excise Act, 1944 was filed against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, which dismissed the Revenue's appeal against the respondent. The Revenue challenged the order of Commissioner (Appeals) setting aside the penalties under Rule 26 of the Central Excise Rules, 2001. The Tribunal affirmed the finding of Commissioner (Appeals) that it is not necessary to impose penalty for buying material without payment of duty. Therefore, imposition of separate penalties in the present case was not interfered with.
Demand of Duty and Penalty:
The Court noted that the demand of duty and penalty against the assessee for the offence of manufacturing rolled products from unaccounted material had been affirmed in a previous case. The Tribunal affirmed the order passed by the Commissioner (Appeals) setting aside the penalties under Rule 26 of the Rules, stating that imposition of penalties is not mandatory under the Rules framed. As a result, the Court found no substantial question of law arising for consideration and dismissed the present appeal.
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2013 (2) TMI 689
Is Rule 25A, as introduced in the Mineral Concession Rules, 1960, w.e.f. 1st April, 1991, by way of amendment dated 20th February, 1991, clarificatory in nature, and hence retrospective, or is it only prospective in nature?
Whether the dismissal of the SLP on 24th August, 2001, filed by the appellant against the judgment of the High Court dated 2nd July, 2001 in OJC No. 11537 of 1999 would attract the principles of res judicata, so as to disentitle the appellant from urging the invalidity of the application of the legal heirs in place of the deceased Dr. Pradhan, in the pending proceedings in OJC No. 3662 of 2002, the judgment which is the subject matter of the present appeal?
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2013 (2) TMI 688
the existing unit if on the basis of the efforts made by the incumbent, becomes 100 per cent. exporting unit and as such the fixed capital investment till the recognition took place shall qualify for exemption if other condition which made, i.e., the period within which, the unit must be become 100 per cent. exporting unit.
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2013 (2) TMI 687
Processing of the product will also amount to manufacture. -
‘manufacture’ with its grammatical variations and cognate expressions means producing, making, extracting, altering, ornamenting, finishing, assembling or otherwise processing, treating or adapting any goods, and includes any process incidental or ancillary to such activities
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2013 (2) TMI 686
Issues: Appeal against granting of exemption under Notification No. 21/2002, dated 1-3-2002 Sr. No. 230.
Summary:
1. The appeal concerns the benefit of exemption under Notification No. 21/2002, dated 1-3-2002, Sr. No. 230 granted to the respondents by the Commissioner, which the Revenue challenges.
2. The case involves M/s. Gammon India Ltd. importing equipment under a Concession Agreement with Andhra Pradesh Road Development Corporation and M/s. Rajamundry Godavari Bridge Ltd., claiming exemption under the said Notification. The Revenue contends that as per the Concession Agreement, the respondents are neither the contractor nor the sub-contractor, thus not eligible for the exemption. The Commissioner (Appeals) allowed the benefit after reviewing relevant records, leading to the Revenue's appeal.
3. The Revenue's appeal to the Tribunal is based on the argument that the Notification must be strictly followed. The Tribunal examined the Concession Agreement and a certificate confirming the respondents as sub-contractor, concluding that the respondents are indeed eligible for the exemption as the work was awarded solely to them, distinguishing this case from previous judgments cited by the Revenue.
4. The Tribunal rejected the Revenue's appeal, citing that the facts of this case differ from previous cases where the benefit of the Notification was denied. The Tribunal upheld the Commissioner's decision, dismissing the Revenue's appeal and disposing of the respondents' cross-objection accordingly.
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2013 (2) TMI 685
Issues involved: Denial of exemption u/s Notification No. 21/2002-Cus., duty demand, penalty imposition, and confiscation of Rig.
Summary:
Denial of Exemption and Duty Demand:
- The appellants appealed against the order denying exemption u/s Notification No. 21/2002-Cus., where the imported Rig was required to be used exclusively for road construction.
- The impugned order alleged that the Rig was used by Delhi Metro Rail Corporation for purposes other than road construction, leading to duty demand and penalty imposition.
Contentions and Submissions:
- The appellants contended that the Rig was indeed used for road construction, and any testing at the Delhi Metro Rail Corporation site was solely for assessing its reusability for road construction.
- The appellant provided evidence, including a log book, to support the claim that the Rig was used for testing purposes only.
Revenue's Argument:
- The Revenue argued that even if the Rig was used for testing, it should have been used solely for road construction to comply with the Notification's condition.
- Due to the alleged violation of the Notification's condition, the Revenue opposed granting the benefit of the Notification to the appellants.
Judgment and Observations:
- After considering the submissions from both sides, the Tribunal observed that the Rig was used for testing purposes only, not for the actual Delhi Metro Rail Corporation project work.
- The Tribunal found that the Rig's use for testing was in line with the Notification's requirement of being used for further road construction work.
- Consequently, the impugned order was set aside as the appellants had complied with the conditions of Notification No. 21/2002, serial No. 230.
- The appeals were allowed with any consequential relief deemed necessary.
Note: The judgment was delivered by Member (J) Ashok Jindal.
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2013 (2) TMI 684
The penalty was not sustainable on the plain reading of provisions of sub-section (10A) coupled with the show-cause notice.
where no ground of evasion or avoidance of tax is made out with the alleged breach of provisions of section 78, no penalty could be levied,
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2013 (2) TMI 683
Income from sale of shares - ‘capital gains’ OR ‘business’ - Held that:- Going through the order of Commissioner of Income Tax (Appeals), we find no good reason to interfere with the findings of Commissioner of Income Tax (Appeals) in holding that the assessee is only an investor and the intention of the assessee is only to invest in shares and there is no motive of trading in business activities in shares. The Commissioner of Income Tax (Appeals) also held that all the transactions are delivery based transactions and no borrowed funds were utilized for making such investments . The assessee has been dealing in investments in shares in earlier years and reported as income from sale of shares either under the head short term capital gains or long term capital gains and this position was not disturbed by the Department. The Revenue could not file any material evidence to rebut the above findings of the Commissioner of Income Tax (Appeals). - Decided against revenue.
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