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Showing 241 to 260 of 1389 Records
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2014 (7) TMI 1151
Rejection of application seeking compounding of offence punishable under Section 23(1) read with 4(1) of Foreign Contribution Regulation Act, 2010 - Held that:- a perusal of the impugned order shows that no reason for declining the application for compounding has been given and he has no objection if the matter is remanded back to the competent authority on this issue. - in view of the principle of audi-alterem partem, the CBI could not have been heard at the back of the Petitioner and thus he has no objection if the matter is remanded back for re-hearing in the presence of the Petitioner. - Impugned order is set aside - Petition disposed of.
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2014 (7) TMI 1150
Penalty u/s 271(1)(c) - Held that:- The imposition of penalty was found not to be justified and the appeal was allowed. As a proof that the penalty was debatable and arguable issue, the Tribunal referred to the order on the assessee's appeal in quantum proceedings and the substantial questions of law which have been framed therein. We have also perused that order dated September 27, 2010, admitting Income Tax Appeal [2010 (9) TMI 1004 - BOMBAY HIGH COURT ]. In our view, there was no case made out for imposition of penalty and the same was rightly set aside. - Decided in favour of assessee.
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2014 (7) TMI 1149
Demand of outstanding tax due - whether the petitioner should deposit 30% of the tax dues before the appellate authority in terms of Section 62 (1)(4)(c)(i) of the Act - Held that:- Even 30% of the tax to be deposited would be around ₹ 10 crores and odd, which indeed is a greater amount. The petitioner i s a public sector undertaking and is in a comfortable and good financial condition. In that view of the matter, 70% of the dues need not be deposited before the appellate authority and instead of waiving deposit of 30% of the tax amount before the appellate authority, the petitioner is directed to give a bank guarantee to the satisfaction of the appellate authority on or before 01.08.2014. If such a bank guarantee is given by t he petitioner, the appellate authority to consider the case of the petitioner on merits and dispose it in accordance with law. - petitioner also undertake to pay the entire tax dues with interest in accordance with provisions of the Act within a period of one month from the date of the order of the appellate authority in case it is unsuccessful before that authority. This undertaking is of course is subject to any further orders that to be made by any other authority - Petition disposed of.
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2014 (7) TMI 1148
Management fees (Royalty) received from Kamat Hotels (India) Limited - assessable as income from business OR income from House property - Held that:- Receipts received from KHIL constitute business receipts. See Commissioner of Income-Tax Versus Mohiddin Hotels P. Limited And Another [2005 (9) TMI 46 - BOMBAY High Court] - Decided in favour of assessee.
Disallowance u/s 14A read with Rule 8D - Held that:- it is a settled position that when there is no expenditure has been incurred for earning the income which does not part of the total income, then the provisions of section 14A cannot be applied. Considering the above, we are of the opinion that the matter should revisit the file of the AO for applying the principle laid down in the judgment of the jurisdictional High Court in the case of Godrej & Boyce Mfg. Co. Ltd vs. DCIT reported in (2010 (8) TMI 77 - BOMBAY HIGH COURT ) and to decide the issue afresh. AO shall grant a reasonable opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes.
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2014 (7) TMI 1147
Confiscation of goods - classification issue of the coal imported - Held that:- There is no difference in facts and the issue between the Coastal Energy Pvt. Ltd. [2014 (8) TMI 246 - CESTAT BANGALORE] and these cases. Accordingly in these cases also, the demands for customs duty for the normal period in accordance with law is upheld and if amount is not paid or partially paid, balance would be payable with interest as per law for the normal period of limitation - As decided in the case of Coastal Energy Pvt. Ltd., penalties imposed on the appellant are set aside. Confiscation of the goods is also set aside and there shall be no redemption fine also - Decided partly in favour of assessee.
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2014 (7) TMI 1146
Maintainability of appeal - Commissioner of Customs prohibited the appellant from working in Mumbai Customs Zone by exercising the powers under Regulation 23 of the Customs Brokers Licensing Regulations, 2013 - Held that:- as per the provisions of Section 146(2)(f) of the Customs Act, the appeal is maintainable against an order of suspension or revocation of licence. The present impugned order is not in respect of suspension or revocation of the licence. In view of the above provisions, we find that the appeal is not maintainable - Decided against the appellant.
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2014 (7) TMI 1145
Validity of proceeding u/s 153C - unexplained credit u/s 68 - Held that:- On the date notice was issued u/s 153C of the Act, there is no assessment proceeding pending before the assessing officer for the aforesaid assessment year. Therefore, in absence of any incriminating material showing concealed/undisclosed income of the assessee, the assessing officer could not have proceeded to assess income which has already been reflected in the books of accounts and disclosed in the return of income filed by the assessee. Even otherwise also, conclusion drawn by the assessing officer in the assessment order that the agricultural income is unexplained also found to be not on cogent material, because of the fact that the CIT(A) has accepted 50% of the income shown as agricultural income against which the department is not in appeal. Further, in the remand report, the assessing officer himself has accepted that the assessee has earned income from coconut trees and casurina plantation which can be considered as agricultural income. In aforesaid view of the matter, the proceeding initiated u/s 153C of the Act in absence of any incriminating material and only on the basis of the material already disclosed by the assessee is invalid and consequently the assessment orders passed are also unsustainable in law. Accordingly, we quash assessment orders passed in all these assessment years - Decided in favour of assessee
Disallowance of agricultural income - Held that:- While completing assessment u/s 143(3) of the Act for the impugned assessment year, the assessing officer rejected assessee’s claim of agricultural income and treated it as unexplained credit u/s 68 of the Act. The CIT(A) allowing partial relief modified the addition made by the assessing officer. While considering identical nature of dispute in case of M/s. Avinash Estates and Resorts Ltd. Vs. DCIT [2014 (10) TMI 668 - ITAT VISAKHAPATNAM ] and other group companies, this bench has directed the assessing officer to disallow 25% out of the agricultural income declared by the assessee. Respectfully, following the same, in the present case also we direct the AO to disallow 25% out of the agricultural income declared by the assessee.
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2014 (7) TMI 1144
Validity of Commissioner's order - Revenue is of the view that the learned Commissioner would have decided the classification and assess the bill of entry. Moreover, while imposing the redemption fine and penalty, the learned Commissioner failed to assess the value of the goods - Held that:- As the direction given by the adjudicating authority in the impugned order has already been complied with, therefore, the appeal filed by the Revenue has become infructuous.
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2014 (7) TMI 1143
Arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961 - Held that:- If the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.
Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.
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2014 (7) TMI 1142
Mis-declaration of Goods – Packing material or cable ties – Assesse filed Bill of Entry declaring imported goods as packing materials – On examination, it was found that imported goods were actually not packing materials, but ‘Cable Ties’, which attract Anti-Dumping Duty – Show cause notice was issued for misdeclaration of goods, proposing confiscation and penalty – Commissioner (Appeals) upheld charge of Anti-Dumping Duty however, set aside order of confiscation and imposition of penalty – Held that:- goods were imported from Taiwan, therefore, Anti-Dumping Duty is liable to be charged on said goods at rate of difference between landed value and reference of price – Respondent ought to have declared imported goods as ‘Cable Ties’, inasmuch as goods, ‘Cable Ties’ were specifically mentioned under Notification – Evident from records that, at no material time, assessee had disclosed that imported goods were ‘Cable Ties’ and therefore, no force in contention that there was no misdeclaration or suppression on their part – Impugned order set aside – Decided in favour of revenue.
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2014 (7) TMI 1141
Revision Application – Non-Compliance of High Court Rules – Whether Tribunal was legally justified to have set aside penalty order whereas applicant was neither registered nor transaction in question was entered in books of account of dealer –Held that:- If revision was preferred by Revenue, he shall ensure service of revision upon assessee and file affidavit of service in manner prescribed in Rules – Therefore, in case of revision filed by Commissioner, affidavit of service must accompany revision, but for valid reasons, this condition would stand dispensed with – In current case no such affidavit was filed, meaning thereby there was no notice or opportunity to assesse and revision has not been filed in manner prescribed in Rules – Thus, fit case where court must reject revision having not been filed in accordance with rules and for non-compliance of requirement of High Court Rules – revision failed – Decided against Revenue.
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2014 (7) TMI 1140
Bomb Blast in Surat - Blast due to demolition of Barbri Maszid - Offence recorded under TADA - Compliance to Section 20A of TADA - Held that:- statute vests the grant approval in an authority specifically designated for the purpose. That being so, no one except the authority so designated, can exercise that power. Permitting exercise of the power by any other authority whether superior or inferior to the authority designated by the Statute will have the effect of re-writing the provision and defeating the legislature purpose behind the same - a course that is legally impermissible.
Exercise of the power vested in the District Superintendent of Police under Section 20-A (1) would involve application of mind by the officer concerned to the material placed before him on the basis whereof, alone a decision whether or not information regarding commission of an offence under TADA should be recorded can be taken. Exercise of the power granting or refusing approval under Section 20-A (1) in its very nature casts a duty upon the officer concerned to evaluate the information and determine having regard to all attendant circumstances whether or not a case for invoking the provisions of TADA is made out. Exercise of that power by anyone other than the designated authority viz. the District Superintendent of Police would amount to such other authority clutching at the jurisdiction of the designated officer, no matter such officer or authority purporting to exercise that power is superior in rank and position to the officer authorised by law to take the decision.
If the Statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes or methods of doing that thing must be deemed to have been prohibited.
Section 20-A (1) is mandatory is also no longer res integra having been settled by this Court in Rangku Dutta @ Ranjan Kumar Dutta v. State of Assam [2011 (5) TMI 902 - Supreme Court Of India]. This Court in that case held that since the provision was couched in negative terms, the same is mandatory in nature no matter the statute does not provide any penalty for disobedience.
Requirement of a mandatory statutory provision having been violated, the trial and conviction of the petitioners for offences under the TADA must be held to have been vitiated on that account. The argument that the first information report regarding the two incidents had been registered before the introduction of Section 20-A (1) in the statute book making approval of the competent authority unnecessary has not impressed us. It is true that the two incidents had taken place and cases registered regarding the same under TADA before Section 20-A (1) came on the statute book, but the fact remains that the provisions of TADA were removed from the reports pursuant to the recommendations of the Review Committee. By the time fresh evidence came to light requiring re-introduction of the provisions of the Act approval for recording information regarding commission of offences under TADA, had become necessary. The fact that such approval was considered necessary even by the investigating agency and was prayed for, only shows that the authorities were aware of the requirement of law and had consciously attempted to comply with the said requirement no matter by applying for such approval to an authority not competent to grant the same. - Decided in favour of Appellant.
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2014 (7) TMI 1139
False declaration – Evasion of Duty – Vide impugned judgment respondent stood acquitted under Section 132 and Section 135(1)(a) of Customs Act, 1962 – Held that :- Accused was intercepted by PW-1 and was asked whether he had any gold or silver items to which he again replied in negative though Metal detector gave positive indication –PW-2 was formal witness and had served summons to accused and had recorded his statement under Section 108 –This statement was in handwriting of respondent himself and by no stretch of imagination can it be said to be coerced statement as it was running into six pages where certain personal information was disclosed – Defence of respondent that he was eager to pay duty but was not allowed to do so was wholly mala fide – Conviction order thus was justified – Sentence already undergone by respondent, would be sentence to be suffered by him – Decided in favour of Appellant.
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2014 (7) TMI 1138
Waiver of pre deposit - Levy of Clean Energy Cess - Assessee contends that alleged quantity of raw coal nor coal after its processing in the washery located within the mine, was not despatched to any destination beyond the coal mine, warranting levy and demand of Cess - Held that:- In case the appeal is likely to be allowed, why should the assessee be saddled with huge amount at that stage. - when majority of Cess has been deposited and either view is possible then the Tribunal should have allowed the application of the Assessee after safeguarding the interest of the Revenue. - interest of Revenue may be safeguarded by requiring the Assessee to give security (other than cash or bank guarantee) of the entire amount of the remaining amount of Cess, penalty and interest. - Decided conditionally in favour of assessee.
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2014 (7) TMI 1137
Courier Service - Non filing of returns - Penalty u/s 76, 77 & 78 - Held that:- National Manager - Accounts of the appellant-firm had clearly admitted to non-payment of Service Tax since October 2003 onwards. From the records, it is seen that, since October 2003 onwards the appellant-assessee has also not filed Service Tax returns. Even for the earlier period, no return has been filed for the period April 2002 to September 2002. From the evidence available on record and from the admission by the National Manager - Accounts of the appellant-firm, it is clear that the appellant-assessee did not discharge Service Tax liability. From the investigation report also it is clear that the appellant did not cooperate with the investigating agency with regard to the quantification of the Service Tax liability and, therefore, as a last resort, the Service Tax liability had to be computed based on the balance sheet figures and trial balance figures which were taken out from the computer maintained by the appellant. In these circumstances, determination of the Service Tax liability by the adjudicating authority based on the figures/records maintained in the computer cannot be faulted at all. - while re-determining the tax liability from these figures, the question of determination of assessable value and tax would automatically arise and, therefore, the adoption of the figures in the balance sheet as cum-tax value by the adjudicating authority cannot be faulted - Decided partly in faovur of Revenue.
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2014 (7) TMI 1136
Condonation of delay - delay of 311 days - Invalid of service of order - Held that:- Security service is an agent of the applicant and it is also responsibility of the security service to receive the mails, courier etc. We find force in the submission of the learned Authorised Representative that the appellant appeared in the personal hearing before the adjudicating authority and thereafter, there was no follow up by the applicant in respect of the present proceedings. Thus, it is a clear case of sheer negligence and/or inaction on the part of the appellant. - No satisfactory reason for condonation of delay in filing the appeal. Accordingly, both the applications for condonation of delay of filing appeals are rejected - Decided against assessee.
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2014 (7) TMI 1135
High Court admitted the appeal against the order of tribunal [2014 (2) TMI 209 - CESTAT AHMEDABAD] - Whether CESTAT committed error in interpreting provisions of Rule 4(4) of Service Tax Rules, 1994 read with Rule 9(1) of Cenvat Credit Rules, 2004 by allowing Cenvat credit distribution to the branches of assessee, though there was no registration of assessee U/s 4(A) under Service Tax Rules, 1994?
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2014 (7) TMI 1134
Entitlement to benefit u/s 10(10C) - Held that:- As per section 10(10C), the scheme is to be framed as per the guidelines as may be prescribed. Further a perusal of the heading of rule 2BA shows that it prescribes the guidelines for the purpose of section 10(10c). The guidelines, as its nomenclature suggests, are just for the purpose of guidance, while framing the scheme of voluntary retirement by the institutes/companies and cannot be said to be mandatory in nature but only procedural or guiding in nature. If the scheme as a whole, otherwise in accordance with the provisions of section 10(10C) and as per the guidelines under rule 2BA except as to some departures from the guidelines, but not in violation of the guidelines as a whole or of the provisions of section 10(10C), its object and purposes, then, in such an event, merely because the scheme differs at one or two points from the guidelines is not sufficient to deny the benefits granted under the section 10(10C) to an employee in view of the beneficial nature of the provision keeping in view the purpose and object sought to be achieved through such a provision. We, therefore, are of the view that denial of exemption to the assessee only because he has received compensation on his retirement a little more than the limit prescribed by rule 2BA, will be against the spirit of the provisions of the section 10(10C), especially, when no such limit has been prescribed under section 10(10C) and also in view of our observations that provisions of rule 2BA are not mandatory but in the shape of guidelines which are to be taken into consideration while framing the scheme
The assessees are entitled to exemption under section (10)(10C) of the Act up to the amount of ₹ 5 lakhs as provided under the relevant provisions of the said section - Decided in favour of assesse.
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2014 (7) TMI 1133
Validity of assessment u/s 153A - Addition u/s 68 - CIT(A) deleted the addition - Held that:- We uphold the contention of the assessee that no addition can be made for this assessment year u/s 153A has no incriminating material was found during the course of search and as no assessment is pending as on date of search. - Decided in favour of assessee.
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2014 (7) TMI 1132
Deduction under section 10A denied - as per AO or the assessment year 2009-10, the assessee itself did not consider the receivables of ₹ 37,75,28,906 for the purpose of claim of deduction under section 10A, hence, granting of deduction u/s 10A on such amount does not arise - CIT(A) allowed the claim - Held that:- The issue in the present case before us is that the gross bills raised by the assessee are paid by the foreign clients in convertible foreign exchange and then only the assessee makes the payment to the foreign client from the same amount which in accounting terms is known as setting off or netting off. Since the same is done with the approval of the Reserve Bank of India the assessee is only to claim deduction under section 10A of the Act on the total amount of gross bills raised by the assessee as the same was received in convertible foreign exchange. The issue in the present appeal is similar to that of J. B. Boda and Co. Pvt. Ltd. [1996 (10) TMI 70 - SUPREME Court] and, therefore, we find no infirmity in the order of the Commissioner of Income-tax (Appeals) in following the judgment of the hon'ble Supreme Court and the same is upheld. - Decided in favour of assessee.
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