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Showing 261 to 280 of 2046 Records
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2018 (10) TMI 1790
Whether the exercise of discretion under Section 231(2) of the Cr.P.C. by the Additional Sessions Judge was valid and legally sustainable?
HELD THAT:- The statutory framework governing the order of production and examination of witnesses is contained inter alia in Sections 135 and 138 of the Indian Evidence Act, 1872. A conjoint reading of Sections 135 and 138 would indicate that the usual practice in any trial, be it civil or criminal, is for the examination-in-chief of a witness to be carried out first; followed by his cross-examination (if so desired by the adverse party), and then re-examination (if so desired by the party calling the witness) - Section 231 of the Cr.P.C. indicates that the Judge is given the discretion to defer cross-examination of a witness, until any other witness or witnesses have been examined.
What follows from the discussion is that the norm in any criminal trial is for the examination-in-chief of witnesses to be carried out first, followed by cross-examination, and re-examination if required, in accordance with Section 138 of the Indian Evidence Act, 1872. Section 231(2) of the Cr.P.C., however, confers a discretion on the Judge to defer the cross-examination of any witness until any other witness or witnesses have been examined, or recall any witness for further cross examination, in appropriate cases - Judicial discretion has to be exercised in consonance with the statutory framework and context while being aware of reasonably foreseeable consequences.
The party seeking deferral under Section 231(2) of the Cr.P.C. must give sufficient reasons to invoke the exercise of discretion by the Judge, and deferral cannot be asserted as a matter of right. Several High Courts have held that the discretion under Section 231(2) of the Cr.P.C. should be exercised only in “exceptional circumstances”.
There cannot be a straitjacket formula providing for the grounds on which judicial discretion under Section 231(2) of the Cr.P.C. can be exercised. The exercise of discretion has to take place on a case-to-case basis - The guiding principle for a Judge under Section 231(2) of the Cr.P.C. is to ascertain whether prejudice would be caused to the party seeking deferral, if the application is dismissed.
In the present case, a bald assertion was made by the Counsel for the Respondent-Accused No. 2 that the defence of the Respondent-Accused No. 2 would be prejudiced if the cross-examination of CWs 1 to 5 is not deferred until after the examination-in-chief of CWs 2 to 5 - impugned Order is liable to be set aside since the High Court has given no reasons for reversal of the Order of the Additional Sessions Judge, particularly in light of the possibility of undue influence and intimidation of witness(es) since the Respondent-Accused No. 2 and Accused No. 7 are “highly influential political leaders” - Appeal allowed.
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2018 (10) TMI 1789
Rectification of mistake - case of applicant is that the appeal filed by them had been dismissed ex parte without considering the grounds of appeal or recording the same - HELD THAT:- In examining the evidences as well as the background, the role of each of the appellant has been scrutinised. A considerable portion of the order is a recitation of the record of proceedings of the hearing which were conducted over several days - As the applicant was not represented it is but natural that the record of proceedings would not relate to the role of the appellant or their submissions. The appellant was imposed with a penalty of ₹ 75,00,000/- under Section 112 of Customs Act, 1962 for the established role in the import effected by M/s. Hindustan Engineering Corporation.
It cannot be said that the grounds of appeal were not considered - absence of certain details on the cover sheet attached to the order does not, in any way, affect the disposal of the appeal. That is the matter on which the registry is concerned and not the bench.
There are no merits in the application for rectification of mistake - application rejected.
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2018 (10) TMI 1788
Classification various products being manufactured by the appellant - Cake Mixes, Baker Mixes, Bread improvers, Cake Improvers, Baker Puff Mix etc., which are used by the sweet shops, bakers, confectioners and super market for making cakes, manufacturing of biscuits, making of instant energy drinks, nutritional supplements etc. - appellant has classified these products under Chapter heading 2106 90 99 of First Schedule to Tariff Act (for short CETA) Central Excise Act, and removed them at Nil rate of duty up to 28-2-2011 by availing of exemption from Central Excise Duty under Sl. No. 30A of Notification No. 3/2006, dated 1-3-2006 - benefit of exemption in terms of Sl. No. 19 of Notification No. 1/2011, dated 1-3-2011.
Whether impugned goods to be classified under Chapter heading 2606, 0404, 2106 and 1102/1108 as claimed by the appellant or under Chapter Heading 1901 20 20 as claimed by the Department?
HELD THAT:- As the appellant does not manufacture the product of Malt extract to group on (i) is not relevant and so is the case for products falling in group, (ii), which consists of all the material derive from flour, groats or meals, which derive from essential character from such material which is not the case here.
Though the starch content in cake decor is quite substantial by weight, i.e. 40% to 45% (which is next only to sugar at 45% to 50%), however, still, in terms of the HSN Notes to Chapter heading 19.01, as extracted above, it emerges that the percentage content of starch is not relevant for classification of the product under this heading. What is relevant is that the product should derive its essential character from starch which is also supported by the HSN Notes to the Chapter Heading 2106 - Further in the present case, the main ingredients providing the essential character to the product are colours and flavours.
The essential character of the product is imparted by colours and flavours. The Ld. Commissioner at paragraph 52.2 has accepted this fact but has concluded the classification of the product would be under the Chapter Heading 1901, on the ground that the same is used for decoration of bakers’ wares of Chapter Heading 1905 of CETA. There is nothing in the Tariff Heading 2106 which bars the use of the products falling therein in the decorations of the bakers’ wares. On the contrary, each of the product group under the HSN Notes to Tariff Heading 2106 reflects those can be used in bakerswares as well.
The product ready to use mixes, comprises of milk solids to the extent of 45% to 50% to enhance taste, nutrition and also provide milky note, sugar 25% to 30% to impart sweetness of the product and flour 15 to 18% to act as filler and remaining portion phosphate and salt, which act as buffering agent and regulator, to give stability to the product and salt is used as preservative - The product does not fall under any of the category of the products covered by Chapter heading 1901 as discussed in preceding paragraph. Since, it is not a malt extract, preparation, milk preparation also the product is out of the purview of Chapter 4, as only half of the composition of the product is milk solids and contains impermissible ingredients like flour etc., and therefore, only heading left for deciding classification is Tariff Heading 2106, which is referred to other food products not elsewhere specified.
Classification of bakers mix, bread improver and break mix - HELD THAT:- These are classifiable under chapter Heading 1102 of the not under 1901 as argued by the appellant on the basis of the precedent decision of this Tribunal in case of HELIOS FOOD ADDITIVES PVT. LTD. VERSUS COMMISSIONER OF C. EX., PUNE-II [2006 (9) TMI 56 - CESTAT, MUMBAI] - the appellant contention regarding classification of items under Heading 1102 is more appropriate and needs to be affirmed in the appeal.
Classification bakers ware mix, biscuit improvers, biscuit mix - HELD THAT:- The product would be classified under chapter Heading 1108 of CETA - thus the Department contention regarding the classification of this product under Chapter heading 1901 is not sustainable and require to be set aside.
Extended period of limitation - HELD THAT:- Each and every information which are required to be provided by the appellant for classification of the product have been furnished to the Department. Nothing has been suppressed by the appellant so as to create any confusion to the Departmental officer regarding description and classification of products. In such circumstances, it is not possible to sustain the demand for the extended period.
Appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1787
Recall of winding up order - honor of instalments - consent terms - HELD THAT:- The applicant Mr.Viral Nandu, apart from the undertaking given in the consent terms, which is accepted and so ordered, personally undertakes that each of the installments will be honoured on due dates and in case of default, petitioner may even execute consent terms with the order as a decree against the company and each of the directors of the company. The applicant states that he has authority from all the directors of the company to make this statement in this court, which is accepted.
As the winding up order has to be recalled, the applicant through his advocate to give notice in `Free Press Journal' and `Navshakti' by 19.10.2018 about the proposed withdrawal as per the format prescribed by the Official Liquidator/Company Registrar, returnable on 2.11.2018.
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2018 (10) TMI 1786
Capital gain computation - adopting full sale consideration equivalent to the amount determined by the DVO in the case of co-owner - reference to DVO - HELD THAT:- Section (2) of section 50C contemplates that in case assessee raises an objection of the value on which stamp duty was paid, then in order to find fair market value of the asset, reference would be made to the DVO , since in the case of co-owner such reference was made on the same piece of land. The same value determined by the AO in the case of co-owner ought to be adopted in the case of the assessee. We allow the appeal of the assessee and remit the issue to the file of the AO with direction to the ld.AO to compute the capital gain assessable in the hands of the assessee on transfer of the above land by adopting full sale consideration equivalent to the amount determined by the DVO in the case of co-owner. With this direction, we allow this ground of appeal of the Assessee.
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2018 (10) TMI 1785
TP Adjustment - selection of MAM - CUP or TNMM - whether the higher standard of comparability required under the CUP method are met or not? - HELD THAT:- As been brought to our notice that from the Assessment Years 2011-12 to 2018-19 under the MAP agreement it has been agreed that TNMM should be the most appropriate method to determine the ALP of the international transaction of the indent keeping into the fact that assessee is a low risk service provider and there is no change in FAR right from Assessment Years 2003-04 to 2018-19. Once TNMM has been accepted under the similar FAR, we do not find any reason to deviate by adopting some other method. Otherwise also we have held that CUP method cannot be applied and other methods admittedly are incapable of capturing the true arm’s length result and therefore, we hold that TNMM should be taken as a most appropriate method for benchmarking the said transaction.
What should be the base for computing the PLI? - Profit derived by the assessee is mainly depended on its operating expenditure as the value of goods does not enter in its financial. As a low risk service provider, it seeks to obtain adequate return on its operating expenses as the operating expenses incurred represents the value added carried on by the assessee. The operating expenses adequately and sufficiently represents the functions performed and the risk undertaken by the assessee. Thus, we hold that the ‘berry ratio’ should be accepted as the most appropriate PLI for taking as base under TNMM while determining the ALP of the Indian transaction for all the five years under appeal.
Accordingly, we remand the matter back to the file of the TPO to examine and benchmark the international transaction by adopting TNMM as the most appropriate method by taking ‘berry ratio’ as PLI. The assessee has to substantiate its margin by bringing comparable uncontrolled transactions to demonstrate that its commission earned in this segment is at arm’s length; and the TPO shall examine the same and decide accordingly. Needless to say that TPO shall give due and effective opportunity to the assessee to substantiate its ALP as per direction given above.
Disallowance of claim of expenditure incurred under the head ‘legal and professional’ charges and addition on account of bad debts and deposits written off - HELD THAT:- These expenses have been incurred as per the details given above. It is quite apparent that these are routine expenditure incurred during the regular course of business and nowhere has it been alleged by the Assessing Officer that these are for non business purpose and are not related to the assessee’s business. Once similar addition has been deleted in the earlier and subsequent year which has attained finality then no addition could be made here, accordingly the same is deleted.
Claim of deduction of deposit written off, it has been brought to our notice that assessee has not written off any such deposit in the instant year, albeit the same was debited in the Assessment Year 2006-07 and that was claimed in the same year only and the Assessing Officer has completely misunderstood and has taken the figure from the P&L account of Assessment Year 2006-07 and has been understood to have been claimed and Assessment Year 2007- 08. In fact DRP has directed the Assessing Officer to delete the same if the same has not been debited and yet the Assessing Officer has not carried out the direction of the DRP. Accordingly, we hold that the addition made by the Assessing Officer is unjustified on facts and same is directed to be deleted.
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2018 (10) TMI 1784
CENVAT Credit - inputs used in manufacture of both dutiable as well as exempt goods - failure to maintain separate set of accounts - rule 6 of CENVAT Credit Rules, 2004 - HELD THAT:- The demand to the extent of CENVAT credit that had not been availed on inputs used for manufacture of exempted goods but entitled, subject to discharge of liability at the prescribed rate under rule 6(3) CENVAT Credit Rules, 2004, is not deniable.
The acceptance of the liability and the utilization of CENVAT consequently available would render the assessee clear of the liability to that extent. The Director of the company would not have derived any particular benefit or have been aware of the requirements of the rules. No evidence has been brought on record of any intention on the part of the respondent-Director to evade any liability or of having taken any steps to facilitate such evasion.
The appeal of the assessee is allowed to the extent of confirmation of demand of ₹ 11,79,366/- and limiting of the penalty to that extent - Appeal allowed in part.
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2018 (10) TMI 1783
Penalty u/s 271(1)(c) - Addition of unexplained cash credit deposited in the bank u/s 68 - penalty has been imposed for intentionally furnishing “inaccurate particulars of income” - HELD THAT:- When the assessee has not been specifically made aware of the charges leveled against him as to whether there is a concealment of income or furnishing of inaccurate particulars of income on his part, the penalty u/s 271(1)(c) of the Act is not sustainable. The case law relied upon by the ld. DR are not applicable to the facts and circumstances of this case in the face of the decisions rendered by the Hon’ble High Court in Manjunatha Cotton and Ginning Factory & Ors. [2013 (7) TMI 620 - KARNATAKA HIGH COURT affirmed by the Hon’ble Apex Court.
On merits even, when we examine the copy of return along with computation of income, receipt and capital account and balance sheet it contains the entire detail as to the amount held to be unexplained cash deposit in the bank by the assessee and in these circumstances, it does not amount to concealing the particulars of income or furnishing of inaccurate particulars of income during assessment proceedings. Moreover, entry for the advance received by the assessee in his bank passbook cannot be termed as books of account so as to attract the provisions contained u/s 68 of the Act.
Hon’ble Supreme Court in a case cited as CIT vs. Reliance Petro Products Pvt. Ltd.[2010 (3) TMI 80 - SUPREME COURT] decided the identical issue in favour of the assessee.
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2018 (10) TMI 1782
Destruction of forest land due to the encroachment - principal contention as urged by the learned counsel for the petitioner is that both the orders are passed by the NGT without hearing the petitioner and now the Forest Department is taking action to demolish the petitioner's construction by issuance of the impugned notice dated 20.11.2017 implementing the said orders passed by the NGT - HELD THAT:- As India was a party to the decisions taken at the United Nations conference on the 'Human Environment' held at Stockholm in June 1972, calling upon the States to take appropriate steps for the protection and improvement of human environment. A decision was taken in the United Nations Conference on Environment and Development held at Rio de Janeiro in June 1992 in which India participated, calling upon the States to provide effective access to judicial and administrative proceedings, including redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. In the judicial pronouncements in India, the right to healthy environment was construed as a part of the right to life under Article 21 of the Constitution.
It was therefore considered expedient to implement the decisions taken at the aforesaid conferences and to have a National Green Tribunal in view of the involvement of multidisciplinary issues relating to environment.
The NGT Act is thus a special legislation which provides for establishment of the National Green Tribunal for the effective and expeditious decisions in cases relating to environmental protection and conservation of forest and other natural resources, including enforcement of legal rights relating to environment and grant of relief of compensation and damages, to persons and property and for matters connected therewith and incidental thereto, as the Preamble of the Act would stipulate.
The Administrative Tribunal Act, 1985 does not contain a specific provision conferring a right to appeal to the Supreme Court as provided under section 22 of the NGT Act. In fact there is no provision for a statutory appeal against the orders of the Administrative Tribunal. In L.Chandrakumar [1997 (3) TMI 90 - SUPREME COURT], the Supreme Court has held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is part of the basic structure of the Constitution.
This is not a extraordinary case where indulgence can be granted to the petitioner by entertaining this petition under Article 226 of the Constitution. The record reveals that the petitioner had filed a civil suit for the same cause of action and could not succeed in getting any reliefs - Further, it was always open to the petitioner to approach the division bench of the NGT and seek appropriate reliefs in case the petitioner felt that the petitioner was not heard.
The interim protection granted by this Court for a period of four weeks to enable the petitioner to avail appropriate remedy as available in law is continued - petition dismissed.
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2018 (10) TMI 1781
TP Adjustment - non conformity with the provisions of section 144C - assessee pointed out that in the present case, the final order of assessment does not incorporate the directions of the DRP and was a verbatim repetition of the draft order of assessment dated 23.02.2015 - HELD THAT:- As relying on M/S SOFTWARE PARADIGMS INFOTECH PVT. LTD. VERSUS THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-1 (2) , MYSORE [2018 (1) TMI 1550 - ITAT BANGALORE] we quash the impugned order of assessment. Since the impugned order of assessment is quashed on the ground that the same is not in conformity with the provisions of section 144C of the Act and further on the ground that the time for passing the final order of assessment is barred by time, we are of the view that the other issues raised by the assessee in its grounds of appeal and the grounds raised by the revenue in its appeal does not require any consideration.
As far as the decision cited by the learned DR in the case of H & M Hennes & Mauritz India (P) Ltd. [2012 (10) TMI 206 - ITAT DELHI] is concerned, we find that in the said decision, the counsel for the Assessee has in para 3.8 of the said order prayed for setting aside the final order of assessment of AO to pass orders in accordance with the directions of the DRP. Thus it is a case of concession by the Assessee and not on the basis of arguments advanced by the parties. The law is well settled that a decision on concession of the counsel cannot be regarded as a precedent. Therefore the decision cited by the learned DR does not support the case of the revenue. - Decided in favour of assessee.
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2018 (10) TMI 1780
Bogus purchases - addition to 20% of the purchases as profit earned by the assessee on these purchases by CIT-A - HELD THAT:- As decided in UNIQUE METAL INDUSTRIES VERSUS INCOME-TAX OFFICER, WARD 39 (3) , NEW DELHI. [2015 (10) TMI 2753 - ITAT NEW DELHI] purchases and sales were within the walled city of Delhi where the transportation is by manual driven cans and the charges for the same are debited under the head cartage. Further when sales are accepted as genuine, then definitely the transactions have occurred and movements of goods have taken place. It is also not the case of the CIT(A) that transactions has not happened. Thus transportation on such facts cannot be a basis to draw adverse inference against the assessee. CIT(A) has upheld the allegation of the Assessing officer of the bogus purchases by making an observation that the appellant's dealing with these parties is not free from any doubt. It is a settled law that doubt cannot be a basis for sustaining the allegation. On the contrary the assessee had lead sufficient evidences in support of its purchases which the Assessing Officer in my view has not been able to rebut. Accordingly in the facts and circumstances of the case it cannot be said that the purchases made by the assessee are bogus.
As regards the addition of sustained by the CIT(A)since purchases are not bogus, the addition on this account cannot be sustained. Even otherwise the addition of 20% on the facts and circumstances is apparently too high. Once the purchases are held to be bogus then the trading result declared by the assessee cannot be accepted and right course in such case is to reject books of accounts and profit has to be estimated by applying a comparative profit rate in the same trade. Though there can be a little guess work in estimating profit rate but such profit rate cannot be punitive. - Decided in favour of assessee.
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2018 (10) TMI 1779
Levy of Interest and penalty - CENVAT Credit - common input service for providing both taxable as well as for the purpose of trading activities - appellant submits that interest and penalty demand cannot be demanded on the appellant on the ground that the appellant had sufficient balance in its Cenvat account during the period between taking of CENVAT Credit and subsequent reversal thereof - HELD THAT:- The department has not specifically alleged that the appellant had not maintained sufficient balance in its Cenvat account between the period of taking irregular Cenvat credit and subsequent reversal thereof. Taking of credit in the CENVAT account under such circumstances would be considered as a mere book entry inasmuch as there is no loss of revenue to the Government exchequer. Hence, it is not the case of Revenue that they have suffered loss owing to delayed reversal of Cenvat credit, which should be compensated by way of payment of interest.
The law with regard to levy of interest on delayed reversal of CENVAT Credit is no more res integra in view of the judgementof Hon’ble Karnataka High Court in the case of COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX LARGE TAXPAYER UNIT, BANGALORE VERSUS M/S BILL FORGE PVT LTD, BANGALORE [2011 (4) TMI 969 - KARNATAKA HIGH COURT], where it was held that once the entry was reversed, it is as if that the Cenvat credit was not available.
Interest and penalty is not leviable - appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1778
Production of voice samples of the complainant; for comparison of the same with the recording - present petition are that the complaint was filed by the respondent against the present petitioner alleging that the petitioner/ accused was having friendly relation with the respondent/ complainant and the petitioner requested the respondent to advance him some friendly loan - arguments raised by the learned counsel for the petitioner are found to be without any basis of pleadings or the evidence.
HELD THAT:- Section 65-B of the Indian Evidence Act starts with a `non obstante' clause which makes the Section prevalent over any other Section as contained in the Evidence Act. No doubt, the non-obstante clause has to be interpreted in a contextual perspective, despite that, it cannot be denied that because of the non-obstante clause used in Section 65-B of the Indian Evidence Act, this Section would be the governing code for the admissibility of the electronic record; existing in whatever form; and despite being the subject matter of any other provision of the Indian Evidence Act. This Section creates a deeming fiction of being a “document” in favour of the electronic record, as contained in any recording media. However, for attaching this deeming fiction to such an electronic records; for being a deemed `document', conditions have been prescribed by Section 65-B, which are mandatorily to be satisfied for leading the said electronic record in evidence as a `document'.
What is permissible to be led in evidence under Section 65-A and 65-B of Evidence Act is the computer output of Electronic Information. As mentioned above, the computer output is the retrieval of the electronic information, which is otherwise readable only by a machine, into an output which is recognisable by human senses, like, text print-out on a page, video on a screen or audio played on a device. Before being retrieved through an output device, like printer, screen or audio device, the electronic information is in existence and is stored in the form of processed digital codes, created through the computer processor. The same piece of machine readable information can be retrieved in different manner and different forms on different types of output devices.
The petitioner had not even disclosed in his application as to when the information; as contained in Pen Drive and the Compact Disc, was recorded. It is also not disclosed as to what was the original instrument/ computer/device through which the information as contained in Pen Drive and CD was recorded. Even this is not disclosed as to what was the activity, which was being regularly carried out; during regular operation of which; the respondent had made the admitting statement; as contained in the Pen Drive and the CD sought to be produced on record by the petitioner - Since there is nothing on record to show the authenticity of the information as contained in Pen Drive and CD, the trial Court has rightly declined the same to take into consideration. Since the information as contained in the Pen Drive and CD itself has been found to be non-authentic by the trial Court, therefore, there is no question of the trial Court directing the respondent to give his voice samples; for being compared with the voice as contained in the Pen Drive and the CD.
The trial Court has rightly dismissed the application filed by the petitioner - Petition dismissed.
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2018 (10) TMI 1777
Dishonor of Cheque - liability of a person who admittedly ceased to be a Director - offences by Companies - section 141 of NI Act - summoning order has been issued by the Judicial Magistrate 1st Class - revision under Section 397 of the Code of Criminal Procedure, 1973 - HELD THAT:- In the present case, the petitioner had ceased to be a Director in the Company long before the cheque was issued and being an ex-Director, to make him liable, it was necessary to aver in the complaint regarding the manner in which he was incharge of the affairs of the Company but no specific averment regarding the involvement of the petitioner, has been made in the complaint. Thus, it can not be said that there was any material on record to show that prima facie the petitioner had committed any offence - Under the aforementioned circumstances, summoning of the petitioner is an abuse of the process of law and the complaint and summoning order deserve to be quashed.
In HARSHENDRA KUMAR D. VERSUS REBATILATA KOLEY [2011 (2) TMI 1278 - SUPREME COURT], the facts were that the accused - Company had issued certain cheques, which were dishonored. The complaints under Section 138 of the Act were filed and it was averred that the Managing Director and two Directors of the accused-Company, including the appellant, were responsible for its day to day affairs. Upon summons being issued, the appellant challenged the complaint and the summoning order on the ground that he had resigned from the post of Director more than a month before the date of issuance of cheques and this fact is recorded in Form No. 32 filed by the accused-Company. The High Court rejected the petition filed by the appellant on the ground that resignation by a Director of the accused-Company is a matter for consideration in defence during the course of the trial.
Reverting to the facts of this case, it is clear that the petitioner had resigned w.e.f. 10.02.2006. The cheque in dispute had been issued much later. Form No. 32 and the annual return of the Company have been placed on record and the same have not been denied. For imposing vicarious liability upon the petitioner, as a person responsible for the business of the company, it was necessary to make specific averments in the complaint regarding his role in the conduct of the business of the Company. No such averment having been made in this case, the Magistrate was not justified in summoning the petitioner.
Petition allowed.
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2018 (10) TMI 1776
Permission for withdrawal of petition - petitioner seeks permission of this Court to withdraw this writ petition with liberty to file a statutory appeal before the concerned Appellate Authority - HELD THAT:- This writ petition is dismissed as withdrawn.
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2018 (10) TMI 1775
Recovery of CENVAT credit - trading of goods - It was alleged that goods actually contained in the said truck was not as per the description mentioned in the invoices and were locally procured scrap, on which no central excise duty was paid - Invocation of Rule 14 and 26 of CER - invocation of section 119 of CEA - HELD THAT:- It is an admitted fact on record that the appellant No.1 in this case is a registered dealer, engaged in the activity of trading of goods.
Invocation of Rule 14 ibid - HELD THAT:- The said rule mandates for recovery of cenvat credit and payment of interest, in the eventuality, where credit has been taken or utilized wrongly. On reading of the statutory provision, it transpires that the said rule can only be applicable for initiation of proceedings against the manufacturer or the service provider - In this case, since the appellant No.1 is neither a manufacturer of excisable goods nor a service provider, engaged in providing taxable service, the provisions of Rule 14 ibid cannot be invoked for recovery of the cenvat credit and for payment of interest.
Invocation of Section 119 ibid - HELD THAT:- It is not the case of Revenue that the appellant No.1 had used any other goods to conceal the offending goods i.e. scrap. Thus, confiscation of the said goods is not proper and justified and accordingly, redemption fine cannot be imposed on the appellant. Since the goods are not liable for confiscation, the provisions of Rule 25 ibid will also not be attracted for imposition of penalty on the appellants.
Applicability of the provisions of Rule 26 ibid - HELD THAT:- Such statutory provisions have correctly been invoked on the appellant No.2 for imposition of penalty inasmuch as he was instrumental in issuance of the wrong invoices to the customers, facilitating availment of ineligible cenvat benefit. However, considering the overall facts and circumstances of the case, the quantum of penalty can be reduced in the interest of justice on the appellant No.2. Accordingly, the penalty imposed on the appellant No.2 is reduced from ₹ 1,77,993/- to ₹ 50,000/-.
Appeal allowed in part.
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2018 (10) TMI 1774
Levy of fees u/s 234E - delay in filing TDS returns - intimation u/s 200A - Held that:- As decided in M/s Terra Infra Development Ltd. [2018 (10) TMI 285 - ITAT HYDERABAD ] relying in M/S SONALAC PAINTS & COATINGS LTD. AND M/S NAGPAL TRADING CO., VERSUS THE DCIT, CPC (TDS) , VAISHALI, CHANDIGARH [2018 (6) TMI 303 - ITAT CHANDIGARH] the provisions of Section 234E for levy of fees on account of late filing of TDS returns was brought on the Statute vide Finance Act, 2012 w.e.f. 01.07.2012 and also that Section 200A, which deals with the processing of TDS returns, gave no mandate to make adjustments on account of levy of fees u/s 234E prior to 01.06.2015 and that the same was brought on the Statute only vide Finance Act, 2015 w.e.f. 01.06.2015.
Respectfully following the decision in the case of Fatheraj Singhvi [2016 (9) TMI 964 - KARNATAKA HIGH COURT] we hold that the fees levied in all the present cases u/s 234E prior to 01.06.2015 in the intimations made u/s 200A was without authority of law and the same is, therefore, directed to be deleted. All the appeals of the assessee stand allowed.
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2018 (10) TMI 1773
Addition u/s 14A r.w.r.8D - HELD THAT:- Disallowance made by invoking rule 8D(2)(iii) of the I.T.Rules is for administrative and common expenses when the assessee derives exempted income. In the instant case, in each of the assessment year’s huge investments are made which is given rise to exempted dividend income. Investment decisions are very complex and strategic and obviously they would have incurred administrative expenses such as salary, wages, general expenses, stationary etc. Therefore, it cannot be said no expenditure was incurred for making the said investments. Hence, we confirm the disallowance made by the AO by invoking provisions of section 14A of the I.T.Act r.w. rules 8D(2)(iii) of the I.T.Rules.
Disallowance of indirect interest expenditure by invoking the provisions of section 14A r.w. rules 8D(2)(ii) admittedly, interest on borrowed funds used for business purposes cannot be computed for disallowance u/s 14A r.w. rule 8D(2)(ii) of the I.T.Rules. It is the duty of the assessee to prove that interest was incurred on borrowings are used for the specific business purpose and non-interest bearing funds were utilized for making investments which has given rise to exempted income. The assessee to prove that it is having its own funds to make investment which had yielded exempted income, necessarily has to furnish the cash flow statement. The cash flow statement would disclose as on the date of making investments, which had given rise to the exempted income, that the assessee had interest free funds available with it. In the interest of justice and equity, we deed it fit to remand the case to the Assessing Officer for fresh consideration
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2018 (10) TMI 1772
Charge of Conspiracy - demand of bribe - acquittal of appellant of the charge Under Section 120-B of the Indian Penal Code, 1860 - installation of electric connection - commission of the offences punishable Under Sections 7, 13(2) and 13(1)(d) of the PC Act read with Section 120-B of Indian Penal Code - HELD THAT:- It is not in dispute that the prosecution had framed three charges against the Appellant and co-accused-Rajinder Kumar and two out of the three charges, namely, Charge Nos. 1 and 2 were based on the conspiracy. It is also not in dispute that the Trial Court, on appreciation of the evidence, held that the prosecution failed to prove the charge of conspiracy Under Section 120-B Indian Penal Code against the Appellant and Rajinder Kumar (A-1) and accordingly acquitted both of them from the said charge - when the charge against both the Accused in relation to conspiracy was not held proved and both the Accused were acquitted from the said charge which, in turn, resulted in clean acquittal of Rajinder Kumar from all the charges under the PC Act, a fortiori, the Appellant too was entitled for his clean acquittal from the charges under the PC Act.
It is for the reason that in order to prove a case against the Appellant, it was necessary for the prosecution to prove the twin requirement of "demand and the acceptance of the bribe amount by the Appellant". It was the case of the prosecution in the charge that the Appellant did not accept the bribe money but the money was accepted and recovered from the possession of Rajinder Kumar-co-accused (A-1) - In such circumstances, there is no evidence to prove that the Appellant directly accepted the money from the Complainant. Since the plea of conspiracy against the Appellant and Rajinder Kumar failed, it cannot be held that money (₹ 4000/-) recovered from the possession of Rajinder Kumar was as a fact the bribe money meant for the Appellant for holding him guilty for the offences punishable Under Sections 7, 13(2) read with 13(1)(d) of the PC Act. It is more so when the benefit of such acquittal from the charge of conspiracy was given to Rajinder Kumar but was not given to the Appellant.
The prosecution, therefore, failed to prove the factum of acceptance of bribe money of ₹ 4000/- by the Appellant from the Complainant on 29.03.1995 as per the charges framed against him - Appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1771
Cancellation of registration of dealers - Benefit of ITC denied - denial of ITC merely because the registration certificate of the selling dealers may have been suspended and later cancelled - HELD THAT:- While on one hand the impugned order cannot be sustained as that factual premise for the same with respect to the date of suspension of the registration certificate of the selling dealers does not exist at the same time, it has to be left open to the Assessing Authority to pass appropriate assessment order in accordance with law in the light of directions issued by the First Appeal Authority by his order dated 31.08.2015.
The impugned order of the Tribunal is set aside and the matter is remanded to the Assessing Authority to pass fresh order - revision allowed by way of remand.
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9911796707
