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Showing 281 to 300 of 1287 Records
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2014 (11) TMI 1009
Demand of differential duty after sale of goods - Valuation - Price variations in respect to levy sugar - Held that:- By no stretch of imagination the submission at bar can be accepted that transaction value was restricted to price which was paid to the appellant at the time of delivery of goods/removal of goods. The term “transaction value” is defined in this Section and it becomes clear on careful perusal of this definition that whatever amount is received as price of goods would become transaction value and on the basis of such transaction value, duty of excise is chargeable. We therefore, reject this contention and hold that no substantial question of law arise from this submission.
Second point which is advanced at the bar is that the appellant is not liable to pay interest. However, Courts below on facts held that the appellant was under obligation to pay difference of excise duty and such liability arose even on the date of removal of goods. We are not inclined to discuss facts but the findings have now attained finality. - There is no substantial question of law - Decided against the assessee.
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2014 (11) TMI 1008
Gujarat Cooperative Societies Act of 1961 - Whether Rule 3-A of the Rules introduced by the amendment dated 10.08.1987 could be applied to the societies bye-laws which provide for a single constituency? - Held that:- Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular Government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. "The right of election is the very essence of the constitution" (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.
For the reasons stated supra, we do not find any reasons whatsoever to interfere with the impugned judgment and orders of the High Court. It is needless to make observation that the State government and its officers could not give effect to the provisions of the Co-operative Societies Act and Rules for some time on account of which some of the societies have challenged the impugned provisions and Rules before the High Court, even after litigation was concluded by the Division Bench at one stage, the State and its officers have not implemented the impugned provisions and Rules without any valid reasons. The members of the specified societies in the State have a right to elect their true representatives to represent them as Managing Committee or Board members of the District Co-operative Societies and other allied societies after de-limitation of the constituency/ constituencies and therefore, we direct them to see that the impugned provisions and Rules must be implemented forthwith without further delay and submit compliance report within 8 weeks from the date of report of the copy of this order. - Decided against the appellants.
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2014 (11) TMI 1007
The Tribunal hastily disposed of the appeal while hearing on the stay application - Retrospective withdrawal of exemption - industrial policy granting certain concessions to the north-eastern region of India - Tobacco Company - appeal against the direction to make payment of excise duty from July, 2000 onwards till then with interest at the rate of 24 per cent - Held that:- l. The substantial questions of law have to be framed depending upon the decision of the Tribunal, on merits. It is not a writ proceedings where this Court can exercise its jurisdiction - irrespective of the technicalities - to go into the questions and to decide without the need for remand. The Tribunal should apply its mind and decide the appeal with reference to the material facts and the law applicable and thereafter the further question would arise. - since the Tribunal did not dispose of the appeal on merits it is just and proper that the matter be remanded to the Tribunal for fresh consideration. - Matter restored before the tribunal.
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2014 (11) TMI 1006
Addition on account of promissory note found at the time of search - telescoping benefit to assessee - Held that:- The assessee has filed detailed source and application of undisclosed income of the assessee at page no.56 of its compilation wherein after application of the undisclosed income, the assessee was left with ₹ 29.45 lakhs as cash and other advances etc. We find that the Revenue could not controvert single item of source and application as shown in this chart filed by the assessee. In these facts and circumstances of the case, we find that where on one hand the CIT(A) has rightly confirmed the case of the Revenue that the assessee had given loan/advances of ₹ 50 lakhs for short time, just before the date of search, out of its undisclosed income available as cash, and likewise, in our considered view, the CIT(A) was justified in holding that the assessee should be given telescoping benefit on this amount against the availability of cash, and since the cash was available to the extent of ₹ 29.45 lakhs, the CIT(A) has rightly accepted the assessee’s explanation to the extent of ₹ 29.45 lakhs and the addition made by the AO was restricted to ₹ 20.55 lakhs. We find that the CIT(A) has passed a well reasoned speaking order on this issue, and accordingly, there being no mistake in the order of the CIT(A) on this issue, the same is confirmed - Decided against revenue
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2014 (11) TMI 1005
Penalty u/s 271(1)(c) - disallowance of business loss - whether losses arising from such 80-IB projects should be adjusted against profits of 80-IB projects of earlier years? - Held that:- Concealment, furnishing inaccurate particulars of income are different. Thus the Assessing Officer while issuing notice has to come to the conclusion that whether is it a case of concealment of income or is it a case of furnishing of inaccurate particulars. The Apex Court in the case of Ashok Pai reported in [2007 (5) TMI 199 - SUPREME Court] held that concealment of income and furnishing inaccurate particulars of income carry different connotations. The Gujarat High Court in the case of MANU ENGINEERING reported in [1978 (9) TMI 18 - GUJARAT High Court] and the Delhi High Court in the case of VIRGO MARKETING [2008 (1) TMI 885 - DELHI HIGH COURT] has held that levy of penalty has to be clear as to the limb for which it is levied and the position being unclear penalty is not sustainable. Therefore, when the Assessing Officer proposes to invoke the first limb being concealment, then the notice has to be appropriately marked. Similar is the case for furnishing inaccurate particulars of income. The standard proforma without striking of the relevant clauses will lead to an inference as to non-application of mind. - Decided in favour of assessee.
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2014 (11) TMI 1004
Reopening of assessment - objection of the assessee filed against notice u/s 148 - Held that:- In the instant case, it is not in dispute that the assessee filed his objections against the issuance of notice u/s 148 of the Act vide his letter dated 11.11.2009 which was received by the office of the Assessing Officer on 16.11.2009. Thereafter, the Assessing Officer passed the impugned re-assessment order on 20.11.2009, disposing off the objections to re-assessment proceedings of the assessee in the order itself. Thus, these facts show that the objections raised by the assessee against the issuance of notice u/s 148 of the Act were not disposed off by the Assessing Officer by passing a speaking order thereon and allowing reasonable time to the assessee after communicating the fate of the objections before proceeding with the reassessment.
Respectfully following the decision of General Motors India P. Ltd v. DCIT [2012 (8) TMI 714 - GUJARAT HIGH COURT ] we are of the considered view that the impugned order of re-assessment passed by the Assessing Officer without disposing off the objections raised by the assessee against the issuance of notice u/s 148 by a separate order is liable to be quashed. We order accordingly. - Decided in favour of assessee
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2014 (11) TMI 1003
Reopening of assessment - reasons recorded for reopening - Held that:- On a perusal of the reasons extracted clearly brings out that the contentious issues were noticed by the AO “on a perusal of the assessment records for the A.Y. 03-04”; and there is no whisper about any fresh information on the basis of which the AO has based his “reasons to believe” that income has escaped assessment. Moreover, we find that the reopening has been ordered after four years from the end of relevant assessment year. So, the AO was duty bound to clearly indicate whether there was any failure on the part of the assessee to disclose fully and truly material facts necessary for the assessment. The admitted facts emerging from the records of this case are that the assessee had filed its return on 28/11/2003 for the relevant assessment year. Scrutiny assessment u/s 143(3) was completed on 02/03/2006 (PB page 36 to 40). Admittedly, four year’s expired on 31/03/2008 from the end of relevant assessment year. So the notice dated 31/03/2009 u/s 148 of the Act, for reopening of the assessment for A.Y. 2003-04 was issued after expiry of four years from the end of the relevant assessment year. Therefore, as provided by the first proviso to sec. 147, the AO has to satisfy that there was a failure on the part of the assessee to disclose fully and truly material facts necessary for the assessment. On a perusal of the reasons recorded by the AO, we find that the AO has made a bald statement, that the assessee’s total income to the tune of ₹ 42,95,200/- has escaped assessment because of failure on the part of the assessee to disclose fully and truly material facts necessary for the assessment.
But for this bald statement of the AO, nothing emerges from the records to support the said observation of the AO. We find that all the three issues raised by the AO has been dealt during the original scrutiny assessment u/s 143(3) of the Act and, therefore, it is a clear case of change of opinion, which has been correctly held by ld. CIT(A) following the ratio-decidendi of the Apex Court in Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA ] wherein, it was held that ‘mere change of opinion’ cannot per-se be reason to reopen and does not confer jurisdiction u/s 147 of the Act. - Decided in favour of assessee.
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2014 (11) TMI 1002
Assessment u/s 153A - Addition u/s 68 - Held that:- In absence of incriminating material found during the course of search no addition can be made u/s 153A of the Act where the original assessment was already framed on the date of search. Thus in absence of incriminating material found during the course of search no addition can be made in a case where original assessment was already framed on the date when search took place. - Decided in favour of assessee.
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2014 (11) TMI 1001
Maintainability of appeal - whether service tax was leviable and payable on the transactions/service provided by the respondent-assessee, who had claimed that the services were not taxable being in the nature of exports - Held that:- As the issue/question in these appeals relates to levy or exigibility to service tax, the present appeals would not be maintainable before the High Court. Accordingly, we are not inclined to issue notice on the applications for condonation of delay and the appeals are directed to be returned. - Appeal disposed of.
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2014 (11) TMI 1000
TDS u/s 194J - Disallowance of transaction charges u/s 40(a)(ia) - non deduction of TDS - Held that:- No disallowance u/s 40(a)(ia) should be made in the present assessment year as the assessee was under a bona fide belief that no tax was deductible, because in the earlier years both the revenue and the assessee had accepted the position that no tax was deductible on the transaction charges. It has been stated before us by the learned counsel that assessee is now deducting tax u/s 194J on transaction charges in the wake of the decision of the Hon'ble High Court in the case of Kotak Securities Ltd. [2011 (10) TMI 24 - Bombay High Court]. Accordingly, we hold that no disallowance should be made u/s 40(a)(ia) in this year. - Decided in favour of assessee.
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2014 (11) TMI 999
Disallowance made u/s 14A - Held that:- The tax authorities were not justified in applying Rule 8D(2)(iii) by disregarding the accounts and claims of the assessee. According to the assessee, he had made the investments in the earlier years and major portion of exempt income was from Government securities. However, the Ld A.R could not conclusively clarify that the different concerns are not operating from different addresses. Accordingly, on a conspectus of the matter, we are of the view the disallowance u/s 14A may be restricted to ₹ 10,000/- and the same, in our view, would meet the ends of justice. Accordingly we modify the order of the Ld CIT(A) on this issue and direct the AO to restrict the disallowance u/s 14A of the Act to ₹ 10,000/-. - Decided partly in favour of assessee
Disallowance made out of motor car expenses, travelling & conveyance expenses and telephone expenses - Held that:- With regard to the disallowance made out of Motor Car expenses and Traveling & conveyance expenses, the assessee did not find material to contradict the findings given by the tax authorities. Accordingly, we confirm the order of Ld CIT(A) on these two additions. With regard to the telephone expenses, the disallowance suggested by the Ld CIT(A) appears to be on higher side. Accordingly, we direct the AO to restrict the disallowance to 50% of residential telephone expenses and 5% of the office telephone expenses. In our view, the same would meet the ends of justice. - Decided partly in favour of assessee
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2014 (11) TMI 998
Review petition - writ petition preferred by the petitioner seeking quashing of the order whereby the petitioner has been ordered to be removed from service has been dismissed - Held that:- The disciplinary authority in the instant case has only accepted the report of the inquiring authority and its findings on the findings thus accepted and recorded, which had already been communicated to the petitioner while supplying the inquiry report, the action has been taken. Thus, there is consideration, there is recording of the finding and communication thereof. The reasons leading to the findings are already there in the inquiry report. Nothing in the report has been added, varied, implied or reversed by the disciplinary authority.” The petitioner has failed to point out as to how there is an error apparent in the aforesaid findings.
Under the guise of review the petitioner is seeking re-hearing of the issues, which is impermissible in law. The petitioner under the guise of review is not seeking correction of any mistake but is seeking substitution of a view. Review of judgment is not maintainable if the only ground for review is that point is not dealt in correct perspective so long the point has been dealt with and answered. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition of old and overruled arguments cannot create a ground for review. The judgment sought to be reviewed has to be read as a whole and the petitioner cannot be permitted to pick up or single out a paragraph and juxtapose the same with another paragraph to contend that there is an error apparent on the face of record.
In view of aforesaid discussion, the petitioner has failed to make out a case calling for interference under Section 114 read with Order 47 of the Code of Civil Procedure.
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2014 (11) TMI 997
Dismissal of complaint under Section 203 Cr.P.C - Held that:- In the facts and circumstances of the case that the respondents had been dragging the matter for quite a long period thus causing prejudice to the applicant, the charge memo dated 12-2-2004 is vague, without any evidence and above all unexplained and inordinate delay has occurred in the disciplinary proceedings against the applicant and accordingly the punishment imposed vide impugned order is discriminatory, violative of natural principles of law and disproportionate to the charges levelled against the applicant. Accordingly we quash and set aside the same. In the result, O.A. No. 1354 of 2011 is allowed and the respondents are directed to pay the arrears due to the applicant within a period of six weeks from the date of receipt of a copy of this order.
As rightly submitted by the learned Additional Solicitor General, each and every act of arbitrariness cannot be termed to be illegal. There must be a link which indicates that the act of arbitrariness was owing to any criminal intent on the part of the persons accused. Finding no merit in the revision, this criminal revision case stands dismissed.
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2014 (11) TMI 996
No uniformity in imposition of Penalty and redemption fine – Improper importation of Goods –Tribunal vide impugned order held that licensing regulations had come into force from 19.10.2005, therefore, goods in question were liable for confiscation and appellant liable to redemption fine, but reduced amount of penalty – Held that:- no doubt true that repeat violator has to be imposed appropriate fine and penalty in order that same acts as deterrent to repeated violation – However, at same time, Tribunal could not lose site of fact that in similar cases it had reduced redemption fine to 10% and penalty to 5% –Without going into restriction imposed was applicable or not, Court held that ends of justice would met if quantum of redemption fine and penalty was reduced from excessive rate to 20% each – Impugned order of tribunal stands affirmed – Appeal disposed of – Decided against Assesse.
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2014 (11) TMI 995
Denial of CENVAT Credit - Whether the Tribunal is correct in holding that credit has to be allowed on the entire fuel if the steam generated using it is used within the factory for any purpose, including manufacture of electricity irrespective of its (electricity) use - Held that:- issue raised in this appeal has been answered against the assessee by a decision of the Supreme Court in Maruti Suzuki Limited v. Commissioner of Central Excise, (2009 (8) TMI 14 - SUPREME COURT), except with regard to the levy of penalty, which the Supreme Court held is not leviable. - Decided partly in favour of Revenue.
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2014 (11) TMI 994
Denial of refund claim - Bar of limitation - Held that:- Action of the Respondent by contesting the issue on merits itself constitutes a case of ‘deemed protest’ and no time limit will be applicable even as per the second proviso to Section 11B of the Central Excise Act, 1944. However, the amounts were not paid as duty at the time of providing of services but was paid only when the investigation was initiated by the Revenue. In the facts and circumstances the amounts paid will be a case of ‘Deposit’ and will not be a situation of payment of duty when on merits Respondent got a favourable order from the appellate channel. The amount so paid was not recovered on the invoices and department has also not rejected the refund claim on unjust-enrichment. Accordingly, it is held that amounts paid by the Respondent was a ‘Deposit’ and not payment of duty when on merits the case was decided in favour of the Respondent. - Decided against Revenue.
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2014 (11) TMI 993
Refund of duty - whether the assessee were eligible for refund of additional duty of customs leviable u/s 3(5) of the Customs Tariff Act paid at the time of clearance of goods from SEZ to DTA - Held that:- Firstly there is nothing on record to suggest that the department questioned the genuineness of the refund claims of the assessee. In other words, the department does not seriously dispute that the special additional duty paid by the respondent was refundable since the purchaser had paid Value Added Tax to the department. Additionally, as an appellant before the Commissioner and respondent before the Tribunal, the department never questioned the jurisdiction and the authority of the Assistant Commissioner to entertain the refund claims. At this stage, particularly, in the facts of this case, we do not permit to do so - Decided against Revenue.
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2014 (11) TMI 992
Suspension of license - Customs Brokers Licensing Regulation, 2013 - Export of prohibited items - allegation that that Red Sanders, which is a prohibited goods was attempted to be exported to United Arab Emirates in the guise of High Alumina Refractories Fire Bricks - Held that:- The present regulation that is Customs Brokers Licensing Regulation, 2013, makes a difference between revocation and suspension as both the eventualities are jotted down in different and separate regulations. Regulation 18 relates to the revocation of licence and procedure has been provided in Regulation 20. Regulation 19 is an independent provision containing the eventuality of suspension of licence and therefore, is not regulated and/or controlled by Regulation 20 thereof.
Furthermore, proviso is inserted to sub-regulation (2) of Regulation 19 which was absent in the repealed regulation providing a further action to be taken in the event the Commission of Customs allowed the order of suspension to continue. Therefore, it cannot be said that the order of suspension passed by the Commissioner of Customs is permanent in nature. - No interim order.
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2014 (11) TMI 991
Port Services - Respondent and ONGC entered into an agreement to permit ONGC to lay pipelines for carrying oil - In consideration for allowing ONGC to lay submarine pipelines through the Port limits, Mumbai Port Trust was paid compensation by ONGC - Compensation was calculated as 50% of the wharfage charges normally payable for such goods handled by the Port - Held that:- Respondent has no control over the goods passing through the pipelines and the respondents are not required to maintain contact, repair or otherwise service, the actual pipeline which was laid within their limits. It is also clear from the agreement that the respondent did not extend any facility, service or personnel in relation to this pipeline or the goods flowing through these pipelines and the amount paid by ONGC therefore, cannot be considered as being amount paid towards any service rendered by the respondent towards the pipeline or the goods going through the pipeline and the amount paid for providing permission to ONGC to lay their pipelines through the port limits. If such permission would not have been granted, ONGC would have had to pass the pipeline through private land increasing the cost of the land and the pipeline. Therefore, the payments were made for the permissions and not to receive any port service from the respondent.
Mere erection of wharfage by itself does not amount rendering a port service and wharf is the structure where the ships dock for loading and unloading of goods. - The term used as ‘wharfage’ is merely to determine the measure of the compensation and not to determine the nature of the service rendered.
Laying of pipelines and payments made by ONGC to the respondent for granting permission to laying pipelines does not cover under the category of ‘port service’. In these terms we do not find any infirmity in the impugned order - Demand id also barred y limitation - Decided against Revenue.
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2014 (11) TMI 990
Clandestine removal of goods - requantification of the duty - recovery of 52 chits from the factory premises of the appellant - Imposition of equivalent penalty - whether there is sufficient evidence for coming to conclusion that the assessee-appellant has clandestinely removed the goods without payment of duty or otherwise - Difference of opinion - Majority order - Held that:- On perusal of the statement of all the four individuals, I find that none of them have implicated the appellant and categorically stated that there was no clandestine removal of the goods and no consideration is received by the company or any of them in cash or otherwise. In short, the entire set of statements is exculpatory. I also find that there is no dispute as to the recovery of 52 yellow chits indicating therein some figures. The said figures have been explained by Shri Suresh P. Chauhan, Folding Clerk who maintained the chits, as were provisional production figures as informed by the workers in the folding department and also includes retreatment figures which do not get reflected in the statutory record.
Figures indicated in the yellow chits, may be provisional figures. This view of mine is based upon the fact that the yellow chits does not indicate any quantity recorded as clearance from the factory premises without accounting for. It is also to be noted that though the Revenue authorities have recorded statements of the individuals, they though it fit not to ask any of these people as to the difference between the figures recorded in the yellow chits and the RG-1 and whether the said difference has been clandestinely removed and if removed, to whom. In the absence of any clear indication as to removal of the said goods from the factory premises, only there being mis-match of the figures between private record and RG-1 record, cannot necessarily lead to conclusion that there was clandestine manufacture and removal. - appellant in this case in hand has made out a case that there was no clandestine removal of the goods due to there being no corroboration. - Decided in favour of assessee.
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9911796707
