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2012 (10) TMI 1016
Whether Learned Single Judge as well as the Division Bench has applied the rule of construction on Order XXI Rule 1?
Whether Section 3(3)(c) of the Interest Act, the said provision only states de hors the substantive part of said Section 3, Courts are not empowered to award interest upon interest?
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2012 (10) TMI 1015
Seeking for extension of stay granted - petitioner apprehends that if the earlier stay granted is not extended the Department may proceed to take coercive measures to recover the outstanding demand and thereby cause irreparable loss to the petitioner - it is not in a position to make payment of such huge demand raised against it.
Held that:- We find that presently the appeal stands posted for hearing on 23.10.2012. In such facts and circumstances, we deem it fit and proper to extent the stay granted earlier, vide order dated.28.03.2012, till disposal of the appeal by this Tribunal or the statutory period of six months, whichever is earlier. The appeal stands posted on 23.10.2012 and no separate notice need be served on the assessee for the date of hearing as service of the order in this stay petition itself would suffice.
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2012 (10) TMI 1014
Issues Involved:
1. Settlement Commission orders under section 32-F(7) of the Central Excise Act, 1944.
2. Immunity from interest, penalty, and prosecution granted by the Settlement Commission.
3. Withdrawal of immunities by the Settlement Commission.
4. Conclusiveness of the Settlement Commission's orders under section 32M.
5. Adjudication of original show cause notices post withdrawal of immunities.
6. Compliance with orders for pre-deposit of penalty and interest.
Issue-wise Detailed Analysis:
1. Settlement Commission Orders under Section 32-F(7):
The writ petitions arose from the orders passed by the Customs and Central Excise Settlement Commission under section 32-F(7) of the Central Excise Act, 1944. The Settlement Commission settled the excise duty for M/s Jagat Textiles at Rs. 31,07,774/- and for M/s Uma Textiles at Rs. 8,44,229/-. Immunities from interest, penalty, and prosecution were granted based on full and true disclosure and cooperation by the petitioners.
2. Immunity from Interest, Penalty, and Prosecution:
The Settlement Commission granted immunity from interest in excess of 10% per annum and immunity from penalty and prosecution under the Central Excise Law. The immunity was conditional upon full compliance with the Settlement Commission's order, including the payment of the settled duty amount.
3. Withdrawal of Immunities:
The Settlement Commission withdrew the immunities granted to the petitioners when they failed to comply with the payment conditions. The immunity withdrawal was automatic under section 32K(2) of the Act due to non-payment of the specified sums. The petitioners' subsequent applications for total immunity from interest and penalty due to financial constraints were dismissed by the Settlement Commission.
4. Conclusiveness of the Settlement Commission's Orders under Section 32M:
Section 32M of the Act provides that every order of settlement under section 32F(7) shall be conclusive and no matter covered by such order shall be reopened in any proceeding under the Act or any other law. The High Court emphasized that the Settlement Commission's orders were conclusive and could not be reopened, and the subsequent Miscellaneous Applications filed by the petitioners were not competent.
5. Adjudication of Original Show Cause Notices Post Withdrawal of Immunities:
After the withdrawal of immunities, the petitioners contended that their matters stood revived to the stage of the original show cause notices. However, the adjudicating authority held that since the duty was already settled by the Settlement Commission, the only remaining issues were interest and penalty. The High Court clarified that the conclusiveness of the Settlement Commission's order under section 32M applied, and the duty amount settled could not be reopened.
6. Compliance with Orders for Pre-deposit of Penalty and Interest:
The petitioners failed to comply with the orders for pre-deposit of penalty and interest as directed by the Tribunal. Despite extensions, the petitioners did not deposit the required amounts, leading to the dismissal of their appeals for non-compliance. The Tribunal's discretion to dismiss the appeals was upheld by the High Court, which found no error in the orders confirming the penalty and interest.
Conclusion:
The High Court dismissed all four petitions, upholding the orders of the Settlement Commission, the adjudicating authority, and the Tribunal. The conclusiveness of the Settlement Commission's orders under section 32M was reaffirmed, and the petitioners' failure to comply with payment conditions resulted in the withdrawal of immunities and the imposition of penalties and interest as per the provisions of the Act. The Rule was discharged with no order as to costs.
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2012 (10) TMI 1013
Issues Involved:
1. Eligibility for Tax Exemption: Whether the Tribunal erred in allowing the appeal filed by the assessee regarding the purchase of goods not listed in the Schedule to the Khadi and Village Industries Commission Act and not purchased from certified institutions.
2. Legality of Penalty Deletion: Whether the Tribunal's decision to delete the consequential penalty is legally tenable.
Summary:
Issue 1: Eligibility for Tax Exemption
The Revenue challenged the Tribunal's decision in favor of the assessee, who claimed tax exemption u/s G.O. Ms. No. 122, dated March 20, 1992. The Government of Tamil Nadu had exempted sales by institutions certified by the Khadi and Village Industries Commission (KVIC) from tax. The assessee argued that goods purchased from traders dealing in Khadi and Village Industries products from outside the State should also be exempt. The assessing officer rejected this claim, stating that only products sold by certified institutions were eligible for exemption. The first appellate authority remanded the case, requiring the assessee to prove the goods were from certified village industries. The assessing officer reaffirmed the rejection, noting the goods were bought from dealers, not certified institutions. The Appellate Assistant Commissioner upheld this view, confirming the assessment order.
The Tribunal, however, allowed the appeal, stating the purchases were from recognized societies manufacturing handicraft products. The High Court disagreed, emphasizing that the exemption applied only to products from certified institutions. The Court noted the assessee admitted to purchasing from non-certified dealers and found no evidence linking the products to certified institutions. Thus, the Tribunal's decision was overturned, and the assessment order was restored.
Issue 2: Legality of Penalty Deletion
The Tribunal had set aside the penalty levied due to the assessment order being overturned. The High Court, while restoring the assessment order, considered the bona fide nature of the assessee's exemption claim. Given the genuine misunderstanding regarding the notification's scope, the Court decided not to restore the penalty. Consequently, the penalty was deleted, and only the quantum of assessment was confirmed.
Conclusion: The tax case (revision) is allowed, restoring the assessment order but deleting the penalty due to the bona fide nature of the exemption claim. No costs were awarded.
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2012 (10) TMI 1012
The High Court of Madras directed the third respondent to dispose of a representation dated 31.8.2012 within eight weeks in accordance with the law. The court did not express any opinion on the merits of the matter. The writ petition was disposed of with these directions and no costs were awarded.
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2012 (10) TMI 1011
Issues involved: Challenge to order u/s 12AA of the Income Tax Act, 1961 regarding registration of a society under Tamil Nadu Societies Registration Act, 1975.
Summary:
The appeal challenged the order passed by the Director of Income Tax(Exemptions), Chennai regarding registration under section 12AA of the Income Tax Act, 1961. The authority declined registration to the society based on the nature of its activities, particularly income from rental and Kalyana Mandapam operations. The society claimed to assist poor people in marriages, but the authority considered the expenses as commercial in nature. The Appellate Tribunal considered the objects of the society and relevant legal provisions. The Tribunal found that the society's activities did not align with the definition of 'charitable purpose' u/s 2(15) of the Act, as it primarily catered to a specific community without providing relief to the poor or other charitable activities. The Tribunal upheld the authority's decision to reject the registration application, leading to the dismissal of the appeal.
In the detailed analysis, the Tribunal highlighted the specific objects of the society as providing accommodation and facilities for marriages and auspicious functions of a particular community, which did not meet the criteria of 'charitable purpose' as defined in the Act. The Tribunal emphasized that the society's activities lacked elements such as relief to the poor or other charitable endeavors, as required by the legal provisions. Despite references to case law and financial documents, the Tribunal concluded that the society's objectives and actions did not qualify for registration under section 12AA. The Tribunal supported the authority's decision and dismissed the appeal, affirming the rejection of registration for the society.
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2012 (10) TMI 1010
Reassessment u/s 147 - reasons to believe - Non disclosure of commission income received in cash - Held that:- AO failed to record reasons that there was failure on the part of the assessee to disclose fully all necessary facts for completion of his assessment - . The Assessing Officer has assumed that income by way of commission must have exceeded ₹ 1 lac which has not been disclosed - The reasons recorded are vague in nature - In the absence of recording such facts, the reopening of assessment is bad in law - the assessment made by the AO is annulled - Decided in favor of assessee
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2012 (10) TMI 1009
Issues Involved:1. Imposition of penalty u/s 271(1)(c) for concealment of income and furnishing inaccurate particulars. 2. Bona fide nature of the assessee's actions and the validity of the explanation provided. 3. Applicability of legal precedents and interpretations of "concealment" and "inaccurate particulars." Summary:Issue 1: Imposition of Penalty u/s 271(1)(c)The appeal challenges the confirmation of a penalty of Rs. 6,12,610/- imposed u/s 271(1)(c) by the CIT(A)-XIV, New Delhi. The assessment proceedings were completed u/s 143(3) with the disallowance of depreciation on land and an imported car. The penalty was imposed after the Assessing Officer (AO) initiated proceedings u/s 271(1)(c) and considered the assessee's reply. Issue 2: Bona Fide Nature of Assessee's ActionsThe assessee argued that the mistake in claiming depreciation was discovered during the audit of the subsequent year and was corrected in the return for the assessment year 2006-07, filed before the completion of the assessment for the year 2005-06. The assessee contended that the claim was made inadvertently and was based on prescribed depreciation rates. The CIT(A) upheld the penalty, stating that the concealment of income was established and the levy of penalty was justified. Issue 3: Applicability of Legal PrecedentsThe Tribunal considered various case laws cited by both parties. It noted that the AO did not specify which particulars were inaccurate or concealed. The Tribunal emphasized that assessment and penalty proceedings are distinct, and the findings in assessment proceedings are not conclusive for penalty purposes. The Tribunal referred to the Supreme Court's observations in Dilip N. Shroff v. Jt. CIT and CIT v. Reliance Petro Products (P.) Ltd., which clarified that a mere erroneous claim does not amount to concealment or furnishing inaccurate particulars if the claim was bona fide and all material facts were disclosed. Conclusion:The Tribunal concluded that the assessee had disclosed all relevant particulars and the claim for depreciation was made in a bona fide manner. The mere disallowance of the claim did not constitute concealment or furnishing inaccurate particulars. Therefore, the penalty imposed u/s 271(1)(c) was unjustified. The Tribunal directed the deletion of the penalty and accepted the appeal of the assessee. Order pronounced in open court on 26.10.2012.
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2012 (10) TMI 1008
Issues involved: Attempted export of restricted goods without proper license, confiscation of goods, imposition of penalty under Section 112 of the Customs Act, 1962, waiver of pre-deposit of penalty for admission of appeal.
Summary:
Attempted Export of Restricted Goods: The case involved an attempt to export Muriate of Potash declared as "OWC (Drilling Chemical Additives)" without the required license from DGFT. Customs intercepted the goods and confirmed them to be Muriate of Potash, a restricted item for export.
Confiscation and Penalty: The goods, valued at Rs. 27 crores, were absolutely confiscated, and a penalty of Rs. 50 lakhs was imposed on the appellant under Section 112 of the Customs Act, 1962. The appellant sought a waiver of the pre-deposit of penalty for admission of appeal, citing that the goods were already with the Department.
Arguments and Decision: The learned DR opposed the waiver, highlighting the importance of the goods as fertilizers for the country's farmers. The Tribunal considered the seriousness of the offence and ruled that once goods are confiscated, they belong to the Government and cannot serve as security for the penalty. The Tribunal directed the appellant to deposit Rs. 25 lakhs within 8 weeks for admission of the appeal. The pre-deposit of the balance penalty was waived, and its collection was stayed during the appeal process.
Conclusion: The Tribunal upheld the confiscation of the goods and the imposition of the penalty under the Customs Act, 1962. It required a partial pre-deposit of the penalty for admission of the appeal, emphasizing the gravity of the offence committed.
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2012 (10) TMI 1007
Issues Involved:
1. Validity of the impugned order demanding interest.
2. Compliance with export obligations under the Export Promotion Capital Goods Scheme.
3. Applicability of interest on customs duty in the absence of specific provisions in the relevant notifications.
Detailed Analysis:
1. Validity of the Impugned Order Demanding Interest:
The petitioner challenged the impugned order passed by the third respondent, which demanded payment of interest within 30 days, failing which penal action would be initiated under Section 11(2) of the Foreign Trade (Development and Regulation) Act. The petitioner argued that the impugned order was illegal, arbitrary, and without jurisdiction as there was no provision in Notification No. 160/1992 to demand interest on duty for non-compliance with export obligations.
2. Compliance with Export Obligations Under the Export Promotion Capital Goods Scheme:
The petitioner obtained a licence under the Export Promotion Capital Goods Scheme to import machinery at a concessional customs duty rate, subject to the condition of exporting goods worth four times the CIF value within five years. Due to unforeseen circumstances, the petitioner failed to meet the export obligation, leading to the enforcement of the bank guarantee and recovery of Rs. 18 lakhs towards duty liability.
3. Applicability of Interest on Customs Duty in the Absence of Specific Provisions:
The customs authorities issued a show-cause notice demanding an additional duty amount and levied 24% interest per annum on the duty amount. The petitioner contended that there was no provision in Notification No. 160/1992 for levying interest on duty. The petitioner relied on a previous judgment (Cochin Malabar Estates v. Customs and Central Excise) where it was held that in the absence of specific provisions in the notification, interest could not be levied on duty.
Judgment:
The court considered Notification No. 160/1992 and the previous judgment in Cochin Malabar Estates v. Customs and Central Excise. It concluded that the respondents could not levy interest as there was no specific provision in the notification or the Customs Act for such a levy. The court referenced Circular No. 131/1995-Customs, which provided for interest in cases of non-fulfillment of conditions, but noted that Notification No. 160/1992 was not covered by this circular. The court also cited a Division Bench decision which held that interest could not be demanded in the absence of specific provisions in the notification or the Customs Act.
Conclusion:
The court found no merit in the arguments of the respondents and held that no interest could be levied against the petitioner for failing to comply with the conditions mentioned in the licence. The writ petition was allowed, and the impugned order demanding interest was set aside.
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2012 (10) TMI 1006
The Gujarat High Court ruled that the Commissioner of Income-tax's order transferring assessments from Bhavnagar to Ahmedabad under section 127(2) of the Income-tax Act, 1961 was challenged by petitioners. The Revenue agreed to withdraw the order and issue fresh orders following due process of law. All petitions were disposed of accordingly.
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2012 (10) TMI 1005
Issues involved:
The issue involves the correct levy of tax on electrical control panel for the assessment year 2001-02, as well as the imposition of penalty based on the rate of tax determined by the Tribunal.
Summary:
The assessee filed a tax case (revision) challenging the Sales Tax Appellate Tribunal's order for the assessment year 2001-02. The substantial question of law was whether the Tribunal was correct in confirming the tax levy at 16 per cent. on the electrical control panel, which the assessee argued should be taxed at eight per cent under entry 64 of Part C of the First Schedule. The assessing officer had initially rejected the claim for concessional levy and imposed a penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959.
The Appellate Assistant Commissioner agreed with the assessee that the item should be taxed at nine per cent under entry 64 and set aside the assessment, including the penalty. However, the Sales Tax Appellate Tribunal allowed the Revenue's appeal, stating that the electrical panel boards did not fall under entry 64 of Part C and that the assessee had not claimed concessional levy before the Appellate Assistant Commissioner. Consequently, the Tribunal restored the original assessment, leading the assessee to file the present tax case (revision).
The High Court examined the relevant entries in the First Schedule and concluded that electrical panel boards should indeed be taxed at eight per cent under entry 64 of Part C, but only until August 17, 2001. From August 18, 2001, the tax rate would be 12 per cent under entry 43 of Part DD. Therefore, the assessing officer was directed to assess the turnover accordingly.
Regarding the penalty, the High Court found no justification to reinstate it, as the assessment was based on book turnover and the dispute was primarily about the tax rate. The Court noted the absence of any specific entry excluding the electrical panel board from the purview of entries 64 and 43.
In conclusion, the High Court set aside the Sales Tax Appellate Tribunal's order, allowing the tax case (revision) and directing the assessment of turnover at eight per cent until August 17, 2001, and 12 per cent from August 18, 2001 onwards. No costs were awarded in this matter.
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2012 (10) TMI 1004
Issues Involved:
1. Non-placement of bail order before the detaining authority.
2. Relevance of the bail order as a vital document.
3. Application of Section 5A of the COFEPOSA Act.
Summary:
1. Non-placement of bail order before the detaining authority:
The Petitioner filed a Writ Petition u/s Article 226 of the Constitution of India seeking a writ of habeas corpus to quash the detention order dated 17th April 2012 u/s 3(1) of the COFEPOSA Act. The Petitioner argued that the bail order dated 18th May 2011, which imposed stringent conditions on the detinue, was not placed before the detaining authority, thereby vitiating the subjective satisfaction of the detaining authority. The Respondent contended that the bail order was not relevant as the detention was based on a subsequent incident on 26th August 2011.
2. Relevance of the bail order as a vital document:
The Court noted that the bail order imposed significant restraints, such as retaining the detinue's passport, requiring weekly attendance at the Investigating Officer's office, and prohibiting the detinue from leaving Mumbai or India without permission. The Court held that these conditions were vital and relevant to the detaining authority's subjective satisfaction. The Court referenced the Apex Court's decisions in Sunila Jain v. Union of India and Ahamed Nassar v. State of Tamil Nadu, emphasizing that every relevant and vital document must be placed before the detaining authority to ensure a fair decision-making process.
3. Application of Section 5A of the COFEPOSA Act:
The Respondent argued that u/s 5A of the COFEPOSA Act, the grounds of detention are severable, and even if one ground is invalid, the detention order can still stand on the remaining grounds. However, the Court held that the subjective satisfaction of the detaining authority was vitiated due to the non-consideration of the bail order, which imposed drastic conditions. Therefore, reliance on Section 5A could not save the detention order.
Conclusion:
The Court concluded that the non-placement and non-consideration of the bail order, which imposed significant conditions, vitiated the subjective satisfaction of the detaining authority. Consequently, the detention order was quashed, and the detinue was ordered to be set at liberty. The Rule was made absolute in terms of prayer clause (a) of the Petition.
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2012 (10) TMI 1003
Issues involved: Appeals filed by Revenue against CIT(A) order for assessment year 1999-2000.
Issue 1: Reliance on ITAT decision
The Revenue filed appeals against CIT(A) order, contending that the Ld. CIT(A) erred in allowing the appeal of the assessee by relying on the decision of ITAT Amritsar Bench, which quashed the AO's order on a legal issue without considering the facts, even though the issue was not final. The Revenue sought to set aside CIT(A) order and restore that of the AO.
Issue 2: Initiation of penalty proceedings
The Revenue argued that CIT(A) erred in holding the initiation of penalty proceedings u/s 271(1)(c) as bad in law due to a dispute regarding the service of notice on the POA of the assessee. The Revenue asserted its right to challenge ITAT's decision before the Punjab & Haryana High Court. The Revenue prayed for dismissal of the appeals.
Judgment Details:
The facts presented by the Revenue were undisputed by both parties, eliminating the need for repetition. The Ld. counsel for the assessee highlighted that previous orders by the Bench had quashed the assessments in dispute, leading to the dismissal of penalty under section 271(1)(c) of the Income Tax Act, 1961. The Ld. DR, however, relied on the Assessing Officer's orders.
Upon hearing both parties and reviewing relevant material, including previous Bench orders, it was concluded that the assessments in dispute had been quashed, rendering the penalty under section 271(1)(c) irrelevant. The Ld. CIT(A) also canceled the penalty based on the previous Bench decision. The impugned order of the CIT(A) cited the invalidity of the assessments and subsequent penalty proceedings, leading to their cancellation.
Based on the discussions and the impugned order, it was determined that the Ld. first appellate authority correctly deleted the penalty based on the quantum order passed by the Bench. No interference was deemed necessary in the well-reasoned order of the Ld. first appellate authority, resulting in the dismissal of the appeals filed by the Revenue.
Therefore, all three appeals filed by the Revenue were dismissed.
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2012 (10) TMI 1002
The High Court of Gauhati recalled an impugned order and restored a Central Excise reference to its original number. The court ruled in favor of the assessee, stating that CENVAT credit of Basic Excise Duty can be used for paying education cess. The reference was disposed of accordingly.
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2012 (10) TMI 1001
Disallowance qua assessee’s claim of deduction under section 80-IB - Held that:- In view of analysis of the facts of the case, we hold that the assessee’s produce manufactured is an item covered by Item Nos.27& 28 of Eleventh Schedule of the ‘Act’ being a rubber fitting. Accordingly, we hold that the CIT(A) has rightly upheld the rejection of assessee’s claim of deduction/s 80IB of the Act. Decided in favour of the Revenue.
Royalty fee - contention of the assessee is that its claim of royalty expenditure @ 2% of the total sales paid to M/s. LRC Products Ltd. as technical know-how fee is liable to accepted in toto instead 75% as upheld by CIT(A) - Held that:- CIT(A) has not rightly deleted the disallowance of expenditure as made by the Assessing Officer to the tune of 25%. Therefore, we hold that the payment made by the assessee in the shape of technical knowhow fee by way of royalty @ 2% of the gross sales is Revenue expenditure. So, the issue is decided in favour of the assessee.
Logo charges - revenue or capital expenditure - Held that:- title of the ‘logo’ in question has not passed over to the assessee. Further, there is no acquisition of assets or part of any capital asset. Usage of logo by the assessee is only for displaying it on the product manufactured i.e. rubber contraceptives. That too, for a limited period as provided in the agreement in lieu of payment @ 2% of the gross sales. When we apply the tenor of the case law above cited to the facts of the instant case, we hold the instant ‘logo’ charges are also revenue expenditure within the meaning of Sec.37 of the Act in the nature of wholly and exclusively for the purpose of assessee’s business. Consequently, we see no reason to interfere in the findings of the CIT(A).- Decided in favour of the assessee.
Reopening of assessment - Held that:- A perusal of the reasons recorded, makes it clear that there is no allegation against the assessee that there was any failure on its part in not disclosing full and true particulars regarding its claim of deduction under section 80HHC as necessary for the assessment. Therefore, the re-opening, in our opinion, does not withstand the test of first proviso of Sec.147. We also notice that neither the Assessing Officer nor the CIT(A) have specifically considered the thin line providing reopening of an assessment in two different scenarios(supra). The reasons contained in the notice further make it un-ambiguous that the Assessing Officer had earlier accepted the assessee’s claim of deduction during the assessment already finalized. Later on, i.e. formed another opinion on merits. This, in our considered view, is nothing but mere change of opinion by Assessing Officer which is not permissible in the eyes of law. We reiterate the trite proposition of law that an assessment already finalized can only be reopened under the specific instances stated under section 147 of the Act; and not beyond the circumstances stated therein.Therefore, we hold that the reopening in question is not valid in the eyes of law - Decided in favour of assessee.
Disallowance under section 14A - Held that:- Rule 8D of the Income Tax Rules, 1962 is only applicable with effect from Assessment Year 2008-09 i.e. not qua impugned Assessment Year 2005-06. It is in the light of said decision that the CIT(A) has interfered in the findings of the Assessing Officer correctly directed to disallow 2 percent as expenditure in earning the exempt income. See GODREJ AND BOYCE MFG. CO. LTD. Versus DEPUTY COMMISSIONER OF INCOME-TAX AND ANOTHER [2010 (8) TMI 77 - BOMBAY HIGH COURT] - Decided in favour of assessee.
Deduction under section 80-IB on income from sale of DEPB - AO declined the assessee’s claim and held that though the DEPB could be related to inputs consumed, but since the source of the DEPB sold is Government’s scheme, therefore, the same cannot be held to have been derived from an industrial undertaking - Held that:- It is noticed that the Hon’ble Supreme Court in in case of Topman Exports Vs. CIT [2012 (2) TMI 100 - SUPREME COURT OF INDIA] has held that it is not the sale price of DEPB or DFRC (Duty Free Replenishment Certificate) which has to be taken into consideration for the purpose of taxability. Rather their Lordships of the Hon’ble Apex Court have been pleased to hold that it is the net profit instead of sale price of DEPB, which has to be taken into consideration for the purpose of assessment. Coming to the facts of the instant case, we see that the A.O. as well as the CIT(A) have not adverted to these vital aspects of the issue involved. Faced with this situation, we deem it appropriate that the Assessing Officer shall re-examine the issue in accordance with law - Decided in favour of assessee for statistical purposes.
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2012 (10) TMI 1000
Issues Involved:
1. Recall of Tribunal's Orders
2. Compliance with Pre-deposit Order
3. Receipt and Acknowledgment of Tribunal's Order
4. Financial Hardship and B.I.F.R. Status
5. Notice of Hearing and Dismissal of Appeal
Summary:
1. Recall of Tribunal's Orders:
The Applicant/Appellant filed a Miscellaneous Application to recall the Tribunal's Orders dated 17.11.2011 and 14.02.2012. The Tribunal had previously remanded the matter for de novo adjudication, resulting in the Commissioner confirming a duty of Rs. 37,36,702/- and imposing an equivalent penalty u/s 11AC of the Central Excise Act, 1944. The Applicant/Appellant sought waiver of pre-deposit u/s 35F of the Central Excise Act, 1944.
2. Compliance with Pre-deposit Order:
The Tribunal directed the Applicant/Appellant to deposit all dues within six weeks from the receipt of the Order dated 17.11.2011 and report compliance on 09.01.2012. The Applicant/Appellant failed to appear or request an adjournment on multiple occasions, leading to the dismissal of the Appeal on 14.02.2012 for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944.
3. Receipt and Acknowledgment of Tribunal's Order:
The Applicant/Appellant claimed they received the Order dated 17.11.2011 only on 18.01.2012, arguing that the compliance period should extend to 29.02.2012. The Tribunal found no merit in this claim, noting the lack of substantiation and the Applicant/Appellant's failure to inform the Tribunal of the late receipt and seek an extension.
4. Financial Hardship and B.I.F.R. Status:
The Applicant/Appellant argued financial incapacity to deposit the amount due to their negative net worth and B.I.F.R. status. The Tribunal dismissed this argument, emphasizing that the Applicant/Appellant did not take appropriate steps to communicate their financial hardship or seek an extension in a timely manner.
5. Notice of Hearing and Dismissal of Appeal:
The Applicant/Appellant contended they were not given notice of the hearing on 14.02.2012. The Tribunal found this claim unconvincing, noting that compliance matters were listed on 13.02.2012, and all advocates present were informed of the rescheduling to 14.02.2012. The Tribunal cited the Hon'ble Allahabad High Court's judgment in Bihariji Packaging Vs. Union of India, affirming that non-compliance with pre-deposit orders naturally leads to dismissal of the appeal without entering into the merits.
Conclusion:
The Tribunal dismissed the Miscellaneous Application, finding no merit in the Applicant/Appellant's claims and emphasizing the importance of adhering to procedural requirements and timely communication with the Tribunal.
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2012 (10) TMI 999
Issues:
The issues involved in this case are related to the default in payment of duty by the respondent, utilization of Cenvat credit, imposition of penalty, and the appeal process.
Default in Payment of Duty:
The respondent allegedly defaulted in payment of duty for the months of May and June, 2007 but later paid the same along with interest. The assessing authority issued a show cause notice proposing a duty demand under provisions of Section 11A of the Central Excise Act, 1944.
Utilization of Cenvat Credit:
The assessing authority noticed that the respondent had utilized Cenvat credit for the subsequent period during the defaulted period. The Commissioner (Appeals) concluded that the appellant had correctly paid duty even during the defaulted period, and the Tribunal concurred with this finding.
Imposition of Penalty:
The adjudicating authority imposed a penalty under Rule 27 of the Central Excise Rules, 2002 for contravention of Rule 8(3A). The penalty was upheld by the Appellate Authority, and the assessee did not appeal against it.
Appeal Process:
The Revenue appealed to the CESTAT against the order of the Commissioner setting aside the demand of duty. The Tribunal dismissed the appeal, stating that no substantial question of law arose for consideration based on the facts and precedents cited.
In conclusion, the appeal by the Revenue under Section 35G of the Central Excise Act, 1944 was dismissed by the Tribunal as no substantial question of law was found to arise for consideration based on the utilization of Cenvat credit, payment of duty, and imposition of penalty in the case.
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2012 (10) TMI 998
Whether the Advisor to the Administrator had the jurisdiction to approve the acquisition of the appellants’ land?
Whether the reports prepared by the LAO under Section 5A(2) were vitiated due to non- consideration of the objections filed by the landowners and the same could not be made basis for deciding whether the land was really needed for the particular public purpose?
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2012 (10) TMI 997
The Supreme Court condoned delay, granted leave, and expedited the hearing in the case. Key persons involved were Mr. H.L. Dattu, Mr. Chandramauli Kr. Prasad, Mr. K.V. Vishwanathan, Ms. Anitha Shenoy, Mr. N. Venkatraman, Mr. Sanand Ramakrishnan, and Mr. Rajeev Mishra.
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9911796707
