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Showing 261 to 280 of 1261 Records
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2012 (10) TMI 1011 - ITAT CHENNAI
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... ... ..... for providing any relief to poor etc. We have also considered the case law cited by the assessee. Since we have already held that neither the assessee’s objects include any relief of the poor nor there is any activity carried out by the assessee in this direction, we hold that the same is not applicable qua facts of the case. In the said case, the issue involved before the Hon’ble jurisdictional High Court was that though the objects of assessee were of education and other general utility, its income earned from letting out the Mandapam was held to be that fulfilling the objects of the concerned trust. The same is not the case in hand. In view of our above discussion, we are of the opinion that the DIT(Exemption) has rightly rejected the assessee’s application seeking registration under section 12AA of the Act. Hence, we uphold the impugned order. 6. In the result, appeal of assessee is dismissed. Order pronounced on Tuesday the 9th October,2012 at Chennai
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2012 (10) TMI 1010 - DELHI HIGH COURT
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 - ITAT DELHI
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... ... ..... as no fault has been found with the particulars submitted by the assessee in its Return. “ 13. In view of the foregoing, we are of the opinion that mere erroneous claim in the absence of any concealment or furnishing of inaccurate particulars, is no ground for levying penalty, especially when there is nothing on record to show that the explanation offered by the assessee was not bona fide or any material particulars were concealed or furnished inaccurate . In these circumstances, we have no hesitation in observing that no penalty is exigible in relation to claim for deduction of depreciation in this case. Therefore, action of Ld.CIT(A) to hold that penalty is imposable in this case is found to be not justified or proper. As such, we, while accepting the appeal of the assessee, direct to delete the penalty imposed by Assessing Officer and confirmed by the Ld.CIT(A). 14. As a result, the appeal of the assessee gets accepted. Order pronounced in open court on 26.10.2012.
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2012 (10) TMI 1008 - CESTAT DELHI
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... ... ..... r admission of appeal. 2. Opposing the prayer, learned DR prays that the Government of India pays subsidy to fertilisers so that goods can be used by farmers of the country. The appellants purchased the goods from fertiliser dealers and tried to export the same. 3. We have considered the submissions from both sides. Since the goods were restricted goods the goods were absolutely confiscated. Once the goods are absolutely confiscated, goods belong to the Government and it cannot serve as security for penalty to be paid by the appellant. Further, we note that the offence committed is of grave nature. 4. Therefore we consider it proper to ask for pre-deposit of penalty of 25 lakhs for admission of appeal. The applicant is directed to deposit ₹ 25 lakhs within a period of 8 weeks and report compliance on 17.12.2012. Subject to such pre-deposit, pre-deposit of balance penalty s is waived and its collection stayed during pendency of the appeal. (Pronounced in the open Court)
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2012 (10) TMI 1007 - MADRAS HIGH COURT
In the absence of any provision in the notification for levy of interest, the interest cannot be levied on the duty.
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2012 (10) TMI 1006 - GUJARAT HIGH COURT
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... ... ..... 1852 of 2012 The petitioners have challenged the legality of an order dated 15.6.2012 by which the Commissioner of Income-tax in purported exercise of power under section 127(2) of the Income-tax Act, 1961 transferred the pending assessments of various assessees from Bhavnagar to Ahmedabad. Learned counsel Ms. Mauna Bhatt for the Revenue stated under instructions that the Commissioner shall withdraw such order and pass such further fresh orders as may be found necessary after following the due process of law. All petitions are disposed of in above terms.
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2012 (10) TMI 1005 - MADRAS HIGH COURT
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... ... ..... the Tribunal and direct the assessing officer to assess the turnover at eight per cent. up to August 17, 2001 and at 12 per cent. with effect from August 18, 2001 as per entry 43 of Part DD of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959. As regards the levy of penalty, we, however, do not find any ground to restore the penalty on the ground that the assessment itself was based on book turnover and the dispute was only as regards the rate of tax. We may herein point out that the assessment order does not refer to any entry under which the assessment was sought to be made taking the rate of tax at 16 per cent. As rightly pointed out by the learned Government Advocate, there is no independent entry taking this electrical panel board outside the purview of entry 64 of Part C and entry 43 of Part DD. In the light of the above said facts, we set aside the order of the Sales Tax Appellate Tribunal. Accordingly, this tax case (revision) stands allowed. No costs.
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2012 (10) TMI 1004 - BOMBAY HIGH COURT
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... ... ..... subjective satisfaction of the detaining authority is vitiated due to nonconsideration of the bail order imposing drastic conditions. It is not the case of the Respondents that on the date of passing of the detention order, the conditions in bail order were no longer in force. On account of nonconsideration of vital document of bail order, the subjective satisfaction of the detaining authority stands vitiated. Therefore, reliance placed on Section 5A of the COFEPOSA Act will not save the order of detention. Therefore, the Petition must succeed and we pass the following order. ORDER The Rule is made absolute in terms of prayer clause (a) which reads thus “( a) That this Hon'ble Court be pleased to issue a Writ of Habeas Corpus or any other appropriate writ, order or direction quashing and setting aside the said order of detention bearing No.PSA1211/ CR110/ SPL/3(A) dated 7.4.2012 and be pleased to direct that the detenu Imran Ibrahim Qadri be set at liberty.”
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2012 (10) TMI 1003 - ITAT AMRITSAR
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... ... ..... three cases the notices u/s 148 were served in similar manner. The Hon’ble ITAT have held all the three assessments made by the AO to be bad in law. Since the relevant assessment orders in all the three cases have been quashed, the penalty proceedings initiated in these assessment orders under appeal are also, therefore, invalid and bad in law and are hereby cancelled.” 6.2. Keeping in view the aforesaid discussions as well as the relevant portion of the impugned order, as reproduced above, we are of the considered opinion that the Ld. first appellate authority has rightly deleted the penalty in dispute on the basis of quantum order passed by this Bench, dated 21st May, 2012. We are of the view that no interference is called for in the well reasoned order passed by the ld. first appellate authority. Therefore, we uphold the impugned order by dismissing the appeals filed by the Department. 7. In the result, all the three appeals filed by the Revenue are dismissed.
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2012 (10) TMI 1002 - GAUHATI HIGH COURT
Utilisation of CENVAT credit - whether CENVAT credit of Basic Excise Duty can be utilized for paying education cess?
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2012 (10) TMI 1001 - ITAT CHENNAI
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 - CESTAT KOLKATA
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... ... ..... for waiver of pre-deposit under the proviso to Section 35F of the Act cannot modify that order subsequently like an appellate authority, nor can keep tinkering with the order as and when applications for modification of the order are filed. It is significant to notice that the Supreme Court has ruled that the Tribunal does not even have the power to review its orders while exercising its appellate power under Section 35C of the Act, See (2003) SCC 230 - 2003 (151) E.L.T. 481 - C.C.E. v. A.S.C.U. Ltd., when this is the legal position with regard to the exercise of the power in respect of the main appeal itself, it cannot be higher while passing orders in exercise of the power under the proviso to Section 35F, which is a provision stipulating the condition for the maintainability of the appeal.” In these circumstances, we do not find merit in the Misc. Application filed by the Applicant, and accordingly, the same is dismissed. (Pronounced in the open Court on 25.10.2012)
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2012 (10) TMI 999 - ANDHRA PRADESH HIGH COURT
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... ... ..... the matter in appeal to the CESTAT against the order of the Commissioner setting aside the demand of duty imposed by the assessing authority/adjudicating authority. 5. The Tribunal concurred with the Commissioner (Appeals) by finding that the assessee had utilized the Cenvat credit for payment of duty on the goods removed during July, August and September, 2007; that there was no dispute with regard to utilization of credits within the alleged limit; that there was no dispute that the credits were utilized for the subsequent periods during the defaulted period; and that the Commissioner had followed the precedents in Lloyds Steel Industries Ltd. 2005 (183) E.L.T. 351 (Bom.) , Heavy Engineering Corporation Ltd. 2008 (230) E.L.T. 179 (Tri.-Kolkata) and M.M. Silk Mills 2007 (211) E.L.T. 78 (Tri.-Mumbai) , for the appellate conclusion. 6. In the circumstances above, no substantial question of law arises for consideration. The appeal is accordingly dismissed. No costs.
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2012 (10) TMI 998 - SUPREME COURT
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 - SC ORDER
Tax liability of the petitioner determined by the authorities for the period 1991-92 i.e., from 1-4-1991 to 31-3-1992 and 1992-93 i.e., 1-4-1992 to 31-3-1993 - works contract - Valuation - determination of the taxable turnover.
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2012 (10) TMI 996 - SUPREME COURT
Punishment for contravention in relation to poppy straw – Appeal against conviction – Appellant was convicted under Section 15 of NDPS Act and sentenced him to undergo rigorous imprisonment (RI) alongwith fine – High court also affirmed conviction order by rejecting appeal of appellant – Held that:- true that independent witness was not examined on side of prosecution – In order to substantiate its claim, prosecution examined PW-1, PW-2, PW-3 and PW-6 – It is better if prosecution examines at least one independent witness to corroborate its case but in absence of any animosity between accused and official witnesses, there is nothing wrong in relying on their testimonies and accepting documents placed for basing conviction – No animosity established on part of official witnesses by accused in defence and no infirmity in prosecution case – True that Section 15 of NDPS Act speaks about punishment for contravention in relation to poppy straw – As per sub-section (b) where contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees – Even after taking two samples of 250 grams each, quantity measured comes to 69.50 kgs which is more than commercial quantity – Taking note of all materials, court in entire agreement with conclusion arrived at by trial Court and affirmed by High Court – Decided against Appellant.
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2012 (10) TMI 995 - BOMBAY HIGH COURT
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... ... ..... pus or any other appropriate Writ, order or direction quashing and setting aside the said order of detention bearing No.PSA¬1211/CR¬7/SPL¬ 3(A) dated 04.10.2012 and be pleased to direct that the Detenu Baliyavalpp Raheem Mohammed Nizar be set at liberty.”
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2012 (10) TMI 994 - BOMBAY HIGH COURT
Detention order under COFEPOSA Act - retaining the passport of the detenu - Held that:- In the present case, the detention order was passed under Section 3(1)(i) of COFEPOSA. The Customs Department has retained the passport of the detenu. The likelihood of the appellant indulging in smuggling activities was effectively foreclosed. The contention that despite the absence of a passport, the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation. RAJESH GULATI Versus GOVT. OF NCT. OF DELHI & ANR. [2002 (8) TMI 832 - SUPREME COURT]
In the case of Mohammed Ashfaq Hallare (2012 (6) TMI 844 - BOMBAY HIGH COURT), the Division Bench was dealing with the order of detention under sub-section (1) of Section 3. This was also a case where the argument was that the detenu was not possessing any passport which completely ruled out the possibility of the detune travelling abroad and indulging in smuggling goods in future. Even this Court has dealt with the same submission based on a case of Abdul Sathar (Supra) made by the learned APP. This Court rejected the submissioin. As the order of detention has been based only on clause (i)of sub-section (1) of Section 3, the order of detention must go only on the basis of this ground.
Hence, as the Petition deserves to succeed on this ground. This Hon'ble Court be pleased to issue a Writ of Habeas Corpus or any other appropriate Writ, order or direction quashing and setting aside the said order of detention
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2012 (10) TMI 993 - ANDHRA PRADESH HIGH COURT
Maintainability of appeal - Held that: - appeal dismissed the on the ground that no substantial question of law is involved and on the concurrent findings of fact recorded by the quasi judicial authorities whose correctness is alone in question - the decision in the case of Commissioner Versus Deepak Galvanising & Engg. Indus Pvt. Ltd. [2012 (9) TMI 928 - ANDHRA PRADESH HIGH COURT] referred - appeal dismissed being not maintainable.
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2012 (10) TMI 992 - CESTAT MUMBAI
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... ... ..... deciding export incentives as far as DEPB concerned, clarified the position, the benefit of the said clarification cannot be denied to the appellant-assessee, on the ground that they have not challenged the assessment order No. 4/99, dated 18-11-1999. 5.2 In the instant case, the appellant has paid the excess amount of export incentives taken ‘under protest’. Therefore, without vacating the protest, the department could not have rejected the refund claim which has not been done in the instant case. 5.3 Further, in an identical case pertaining to M/s. Jindal Iron and Steel Company, based on the direction of the Hon’ble Bombay High Court, the benefit under serial No. 91 has been extended and the excess amount taken was refunded vide order, dated 16-3-2004 cited supra. Therefore, in the instant case also, the assessee is entitled for the benefit. 6. Accordingly, we allow this appeal with consequential relief. (Operative part pronounced in Court)
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