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Showing 281 to 300 of 886 Records
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2013 (3) TMI 611
Determination of net wealth - exemption under Explanation (5) to section 2(ea)(i) - Held that:- in order to evaluate a claim for exclusion based on Explanation (5) to section 2(ea)(i) of the Act, the assessee has to demonstrate that the property is in the nature of commercial establishment or complexes, though the commercial activity may not be carried by the assessee himself - assessee had pointed out that the properties at Market Yard, Pune, are commercial shops used for carrying out commercial activities and the same have been let out and the occupants are using it for such commercial activities. Even with regard to the property let out at Pune Camp and at Lalbaug Society, the same were being used for commercial activities. Even with regard to the Office space at Sharda Arcade, Pune, the assessee pointed out that the same was on rent to Wipro Ltd., and was being used for commercial activities. - no error on the part of the CWT(Appeals) in holding that the aforesaid properties are covered by the exception provided in Explanation (5) below section 2(ea)(i) of the Act and, therefore, the same are excludible for the purposes of computing net wealth chargeable to tax for the A.Y.200-01. - Decision in the case of Satvinder Singh vs. DCWT [2006 (9) TMI 246 - ITAT PUNE-B] followed - Decided against Revenue.
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2013 (3) TMI 610
Computation of Transfer pricing adjustment - Tribunal accepting the Cost Plus Method adopted by the assessee to arrive at Arm's Length Price determined by the Transfer Pricing Officer - Held that:- Tribunal accepted the the Cost Plus Method to arrive at Arm's Length price in respect of its international transaction relating to purchase of raw materials. The Tribunal also records the fact that Assessing officer has accepted the Cost Plus Method adopted by the respondent assessee in arriving at Arm's Length Price for subsequent assessment years 2003-04 and 2004-05. The appellant revenue does not urge that the facts in the subsequent years are materially different from the facts existing in the present assessment year - No substantial question of law - Decided against revenue.
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2013 (3) TMI 609
Benefit under Notification 21/2002, dated 1-3-2002 - Mideclaration of goods - held that:- Expert of the DGHS did not turn up for cross- examination - Admittedly the department’s grievance is that the ld. Commissioner has based his findings on the trade parlance but does not mention how it was found in trade parlance they are understood as cardiac catheters, whereas none of the catalogue, booklets and brouchers defined the catheters as cardiac catheters. Further, the CHA in his statement stated that the word “cardiac” in the brackets after the description was added on the direction of the Director of the respondent. - Central Venous Catheters (CVCs) have also been certified by various medical professional. CVCs, by definition, are catheters whose tip resides in the central circulation i.e. it is inserted into one of the central veins viz, the superior or inferior vena cava, which two veins return blood into the right atrium and have the largest blood flow of any veins in the body. Central venous catheterization allows measurement of central venous pressure, apart from providing a route for delivery of caustic or critical medications, nutrition and feeding and cardiac pacing. Typically, CVCs are inserted at four main sites (a) Internal Jugular Vein; (b) Subelavian Vein (c) Femoral Vein (d) Brachial vein, all of which provide access to and have nexus with the heart. - entry is inclusive in nature and it covers various types of catheters. - No reason to interfere with the impugned order - Decided against Revenue.
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2013 (3) TMI 608
Duty demand u/s 68 - technical know-how and Consultancy Engineering Service - Payment of royalty - Held that:- Transaction is one of supply of technical know-how and payment of royalty thereon. Supply of technical know-how does not fall under the category of ‘Consultancy Engineers Service’ and, therefore, the classifications for levy of service tax adopted is incorrect.
service provider is a foreign company and he has not authorized the respondent to pay service tax on his behalf and, therefore, the service tax liability cannot be fastened on to the appellant as decided by this Tribunal in the case of Navinon Ltd., cited supra.
technical know-how has been provided by the foreign service provider. Therefore, the transaction is one of providing of service from abroad and receiving it in India, that is import of service and, therefore, the provisions of Section 68 read with Rule 6 of Service Tax Rules, 1994 do not apply - Decided against Revenue.
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2013 (3) TMI 607
Waiver of pre-deposit - tribunal has ordered a deposit of 50% of the tax due in its order [2014 (1) TMI 508 - CESTAT MUMBAI] - The contention of the Appellant is that the entirety of the proceeds consist of what is realized from a purely a trading activity namely sale of vehicles and no service has been provided. - Held that:- At this stage, prima facie, it would not be either appropriate or proper for the Court to enter upon a disputed factual issue particularly in view of the fact that a prima facie view on the facts has been taken by the Tribunal. No financial hardship was shown. Hence, having regard to the parameters of the jurisdiction of this Court under Section 35(G) of the Central Excise Act, 1944, we do not find any error in the order of the Tribunal requiring a pre-deposit of 50% of the tax liability. - No relief - Decided against the assessee.
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2013 (3) TMI 606
Addition on account of Modvat - Disallowance being interest attributable to interest free advances - Held that:- Deletion the addition on account of Modvat - This issue is covered by the decision of the Apex Court in case of Commissioner of Income-tax vs. Indo Nippon Chemicals Co. Ltd. reported in [2003 (1) TMI 8 - SUPREME Court ] . In the result, this issue does not require any further detailed reasonings.
Deletion the disallowance being interest attributable to interest free advances - The Tribunal relied on the decision of the Bombay High Court in case of CIT vs. Reliance Utilities and Power Ltd. reported in [2009 (1) TMI 4 - HIGH COURT BOMBAY ]. It was held that if there were funds available both interest-fee and overdraft and/or loans taken, then a presumption would arise that investments would be out of the interest-free fund generated or available with the company, if the interest-free funds were sufficient to meet the investments. We see no reason to interfere in the said issue when both the Authorities have concurrently held that there were sufficient funds available with the company and they held in favour of the assessee. - Decided against the revenue.
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2013 (3) TMI 605
Denial of MODVAT Credit - Capital goods - Held that:- Iron scrap and metal scrap arise in the process of repair and maintenance of machinery and cement manufacturing plant has no contribution or effect on the process of manufacturing cement, which is excisable end-product. Repairing activity cannot be called as part of manufacturing activity in relation to production of end-product - In case of cement manufacture, the metal scrap and waste arise only when the assessee undertakes repairing and maintenance work of capital goods and do not arise during the course of regular manufacturing. But in the case of manufacturing of ribbed bars or other goods, the aforesaid scraps are necessary products which generate during the course of process and therefore the case of Grasim Cement (2011 (10) TMI 2 - SUPREME COURT OF INDIA) is distinguishable on the ground of facts. - in absence of any declaration required under Rule 57G of the Rules, 1944, by passing the order impugned, the CEGAT has not committed any illegality requiring any interference. - Decided against assessee.
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2013 (3) TMI 604
Availment of wrongful credit - Bogus invoices - Issue of invoices without actual receipt of goods - Invocation of extended period of limitation - Imposition of penalty - Held that:- During the search of the supplier’s office and godown viz. M/s. ISC, it was found that as per the records a large quantity of closing stock of SS Bright Bars was available but in the godown no such SS Bright bars were found. The explanation given by Shri Arifbhai Adhiya Proprietor of M/s. ISC was that such bright bars has been sold without Cenvat/modvat. However, no commercial invoice issued by M/s. ISC was also found. - M/s. ISC used to deal in different variety of scrap including assorted mixed scrap. We also note, conduct of M/s. ISC with reference to the bogus Invoices of ship breaking scrap through Simandhar Steel Movers (India) Pvt. Ltd. and also invoices relating to closed down ship breaking units. - M/s. Miland Tijare and other officials of the appellant have stated that in heterogeneous consignments higher number samples are required while in homogenous, very few samples would be tested. From the records of the Lab, the Officers could not find any case where only one or two sample were tested. One or two samples should have been the case in respect of Invoices relating to S.S. Rods/pipes/bright bars, etc. We note that appellant has chosen to keep silent on this allegation in the show cause notice. - goods covered by the impugned invoices have not been received in the factory of manufacturer - Such a thing cannot happen without active connivance of appellant and undoubtedly is a case of fraudulent availment of credit. We therefore reject this contention of the appellant and hold that extended period is rightly invoked.
Sub-rule (1) of Rule 13 is applicable to any person while sub-rule (2) of Rule 13 which is applicable to manufacturer alone. The term any person would include appellant Shri Deepak W. Ashtikar, who was a senior officer of M/s. FACOR and responsible for the purchase of scrap and therefore, dealt with the scrap. He has admitted that sometime scrap received may be different that in the invoice. As a senior officer in the organization, such a thing can be permitted by him only if he has active connivance in the fraud.
We therefore, do not find any merit in the contention of ld. Advocate to appellant Shri Deepak Ashtikar that “mens rea” is absent. Case here is that goods covered by the invoice never reached the factory. In the circumstances, we hold that appellant is liable to penalty under Rule 13 of the Cenvat Credit Rules, 2001/2002.
Investigations have failed to reveal that the third appellant was aware of the wrong doings in the purchase and conniving with the first appellant or supplier of the scrap. Investigations have not brought out that difference in invoices/final settlement was huge as to justify their knowledge. - Decided partly in favour of assessee.
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2013 (3) TMI 603
Waiver of pre deposit - denial of the benefit of SSI exemption under Notification No. 8/2003-C.E., dated 1-3-2003 - labels are printed with the name of others - Held that:- Notification No. 28/2011-C.E. whereby an Explanation was added to the SSI Notification No. 8/2003 that for the removal doubts, it is hereby clarified that “packing material” includes labels of all kinds. Hence prima facie the applicant has made out a case for total waiver of the pre-deposit of the dues. - Stay granted.
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2013 (3) TMI 602
Reversal of MODVAT Credit - Duty paid under protest - Suo moto availment of CENVAT Credit - Difference of opinion - Majority order - Held that:- while availing Cenvat credit suo motu by the appellant, there was no permission or no concurrence obtained from the lower authorities by the appellant. In the absence of any such concurrence, any credit raised in the Cenvat register, in my view, is improper due to the decision of Larger Bench of the Tribunal in the case of BDH Industries Limited (2008 (7) TMI 78 - CESTAT MUMBAI). - appellant herein has erred in taking suo motu credit on his own - Decided against assessee.
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2013 (3) TMI 601
Denial of rebate claim - cash rebate - Rebate to extent of duty paid by them on transaction value of the export goods in terms of Section 4(l)(a) - Held that:- expenses incurred upto the place of removal/point of sale are includible in the value determined under Section 4 of Central Excise Act, 1944. In this case, there is no dispute about place of removal which is stated as port of export where ownership of goods is transferred to the buyer. Applicant’s claim that in this case place of removal is not factory but the port of export, is not disputed by department. Since applicant has included only local freight for transportation of export goods from factory to port of export and not the ocean freight or freight incurred beyond port of export, there is no reason for not considering the local freight as part of value in view of above discussed statutory provisions. As such the demand of duty and interest as confirmed with the impugned orders is not sustainable. Government therefore set aside the impugned orders - Decided in favour of assessee.
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2013 (3) TMI 600
Denial of All Industry Rate of Drawback - claim on FOB value - Notification 43/2001-C.E. (N.T.) - whether the drawback specified in the above Schedule at Sr. No. 8701 B is applicable to export of commodity or product when such commodity or product is manufactured or exported by availing benefit of Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 issued under sub-rule (2) of Rule 19 of Central Excise Rules, 2002 - Held that:- respondents have declared in there ARE-2 that the goods were manufactured by availing exemption under Central Excise Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 issued under Rule 19(2) of Central Excise Rules, 2002. Therefore, the goods manufactured by claiming benefit under Rule 19(2) of Central Excise Rules, 2002 are not eligible for All Industry Rate of Drawback. The respondents have not fulfilled the conditions in the above said Notification. Therefore, the respondents are not eligible for the drawback. - Decided against assessee.
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2013 (3) TMI 599
Denial of rebate claim - Duty paid from lapsed CENVAT Credit - Exemption under Notification No. 30/2004-C.E., dated 9-7-2004 - Held that:- The sub-rule (3)(i) & (ii) of Rule 11 of Cenvat Credit Rules, 2004 clearly stipulates that if a manufacturer opts for exemption from whole of duty of excise leviable on the said final product under a Notification issued under Section 5A of the Act or the said final product has been exempted absolutely under Section 5A of the said Act, he shall be required to pay an amount equivalent to the Cenvat credit taken by him in respect of inputs received for use in the manufacture of the said final product and is lying in stock or in process or is contained in the final product lying in the stock and after deducting the said amount from the balance of Cenvat credit, if any lying in his credit, the balance if any still remaining shall lapse and shall not be allowed to be utilized for payment of duty on any other final product whether cleared for home consumption or for export or for payment of Service Tax on any output service, whether provided in India or exported. - Notification No. 30/2004-C.E. provides for exemption from whole of duty and therefore respondent’s case is covered under sub-rule (3)(i) of Rule 11 and not under sub-rule (3)(ii). Commissioner (Appeals) has erred in not considering the word ‘or’ after sub-rule (3)(i). - Decided in favour of assessee.
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2013 (3) TMI 598
Denial of rebate claim - value of goods exported under claim of rebate was abnormally high as compared to same goods clear under LUT/Bond and also to their sister concern - Held that:- W.e.f. 1-7-2000, the concept of transaction value was introduced for valuation of goods under Central Excise Act. Though the C.B.E. & C. Circular 203/37/96-CX., dated 26-4-1996 was issued when transaction value concept was not introduced yet the said circular clearly states that AR-4 value of excisable goods should be determined under Section 4 of Central Excise Act, 1944 which is required to be mentioned on the Central Excise invoices. - ARE-1 value is to be the value of excisable goods determined under Section 4 of Central Excise Act, 1944 i.e. the transaction value as defined in Section 4(3)(d) of Central Excise Act. C.B.E. & C. has further reiterated in its subsequent Circular No. 510/06/2000-CX., dated 3-2-2000 that as clarified in circular dated 26-4-1996 the AR-4 value is to be determined under Section 4 of Central Excise Act, 1944 and this value is relevant for the purpose of Rule 12 and 13 of Central Excise Rules. The AR-4 and Rule 12/13 are now replaced by ARE-1 and Rule 18/19 of Central Excise Rules, 2002. It has been stipulated in the notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and the C.B.E. & C. Circular No. 510/06/2000-CX., dated 3-2-2000 that rebate of whole of duty paid on all excisable goods will be granted. Here also the whole duty of excise would mean the duty payable under the provisions of Central Excise Act. - No infirmity in impugned order - Decided against assessee.
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2013 (3) TMI 597
Confiscation of goods - import of three old and used machines - violation of the provisions of Exim Policy 2002 - 2007 - Enhancement in value of machinery - Difference of opinion - Majority order - Held that:- Since the certificate produced by the importers was not reliable because of the aforesaid reasons, the Department was within its right to appoint another panel of experts. The importers never challenged the composition/qualification of the Expert Committee nor did they ever challenge the findings given by the said Committee till the stage of adjudication. In fact, they requested the adjudicating authority not to issue any written show cause notice also. At this late stage, the appellants cannot be allowed to raise the ground of lack of qualification of the Expert Committee which will render the Revenue remediless. - As regards the certificate submitted by the importer, the same can be ignored as the same was not based on true state of the machineries or the documents. Since the Expert Committee nominated by the Department has given their opinion after minutely verifying the state and the year of make of the machineries. It is also not the claim of the appellants that the said examination by the Expert Committee was done in their presence. In view of all above factors, the report given by the Expert Committee appointed by the Revenue is more reliable.
Once the transaction price was not reliable as the true assessable value, the only reasonable method was to determine the value on the basis of market enquiry as it would be next to impossible to find out a contemporaneous import of a similar machinery of similar vintage - Hence, the enhancement of value of the three machines to ₹ 16 lakhs should be upheld.
EURO was introduced as an accounting currency only on 1-1-1999 and EURO notes entered circulation only on 1-1-2002. In this regard, a small write-up, as downloaded from Wikipedia, is enclosed. Hence, the prices of machineries manufactured around 1994 could never have been mentioned in EURO. This, coupled with the fact of mis- declaration of age of the machineries, necessitates the discard of certificate produced by the importer, as a whole. Mentioning of price in EURO when EURO was not even conceived makes it clear that the certificate was a sham. The value certified vide this certificate can also not be taken to be true on account of mis-declaration.
There was a deliberate misdeclaration of description and value and a restricted commodity was sought to be illicitly imported, without processing a valid licence to import the same. Hence, the confiscation of machines is liable to be upheld.
Chartered Engineer’s certificate which accompanied the imported consignment was rejected by the lower authorities due to the discrepancies noticed as regards factual findings of the motor and coolant pump having manufacturing year mentioned as 1979 and 1981 marked on them. After the said rejection of the Chartered Engineer’s certificate, the Customs authorities appointed a Committee of Experts to consider the age of the machinery - there is no serious challenge in determining the age of the machinery on the basis of experts appointed by the Customs authorities. I find that the contest of the appellant herein is that the age of the machinery cannot be determined on the year marked on the electrical part for which reliance was placed on the judgment of the Tribunal in the case of Vardhman Spinning & General Mills v. CC (2004 (6) TMI 76 - CESTAT, NEW DELHI). I find that when machines were inspected and the consignments were opened, it was in the presence of the assessee or their representative. This point is not disputed by the appellants anywhere in the grounds of appeal. If there is no dispute as to the inspection done by the experts as regards the age of the machines, only challenging the qualification of the said Engineer may not carry the case of the appellant any further.
Confiscation of the machineries with option to the appellant to redeem the same on payment of redemption fine adjusted by the lower authorities is upheld. Similarly, penalty imposed upon the appellant is also upheld. However, the enhancement of assessable value by the lower authorities is set aside - Decided partly in favour of assesse.
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2013 (3) TMI 596
Deemed vesting of surplus land with the State government under Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976 - De facto possession depriving the land holders of the benefit of the saving Clause under Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 - Non serving of notice - Legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist - Held that:- We notice even after the coming into force of the Repeal Act, the competent authority under the Act 33 of 1976 vide its letter dated 10th June, 1999 informed the Bandobast Chakbandi Adhikar that the surplus land declared as per the notification issued under the Act had vested in the State Government free from all encumbrances and, therefore, in the revenue records the name of State Government be entered and name of the respondent be mutated. The competent authority vide its notice dated 19.6.1999 issued under Section 10(5) of the Act directed the respondent to handover possession of the land declared as surplus to duly authorized persons on behalf of the Collector.
Legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Sub-section (3) of Section 10 contained two deeming provisions such as “deemed to have been acquired” and “deemed to have been vested absolutely”. Let us first examine the legal consequences of a ‘deeming provision’. In interpreting the provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. This Court in Delhi Cloth and General Mills Company Limited [1996 (1) TMI 431 - SUPREME COURT] held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands.
The expression “deemed to have been acquired” used as a deeming fiction under sub-section (3) of Section 10 can only mean acquisition of title or acquisition of interests because till that time the land may be either in the ownership of the person who held that vacant land or to possess such land as owner or as a tenant or as mortgagee and so on as defined under Section 2(1) of the Act. The word “vested” has not been defined in the Act, so also the word “absolutely”. What is vested absolutely is only the land which is deemed to have acquired and nothing more. The word “vest” has different meaning in different context; especially when we examine the meaning of vesting on the basis of a statutory hypothesis of a deeming provision. Vest/vested, therefore, may or may not include “transfer of possession” the meaning of which depends on the context in which it has been placed and the interpretation of various other related provisions. What is deemed “vesting absolutely” is that “what is deemed to have acquired”. In our view, there must be express words of utmost clarity to persuade a court to hold that the legislature intended to divest possession also, since the owners or holders of the vacant land is pitted against a statutory hypothesis.
Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. We are of the view that so far as the present case is concerned, the word “vesting” takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act.
Requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word ‘may’ has been used therein, the word ‘may’ in both the sub-sections has to be understood as “shall” because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word ‘may’ has to be read as ‘shall’. Above reasoning is in consistence with the Directions 1983 which has been issued by the State Government in exercise of powers conferred under Section 35 of the Act. Directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land.
The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forceful dispossession under subsection (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act. No documents have been produced by the State to show that the respondents had been dispossessed before coming into force of the Repeal Act and hence, the respondents are entitled to get the benefit of Section 3 of the Repeal Act. - Decided against the appellant.
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2013 (3) TMI 595
Petition preferred under Article 32 of the Constitution of India - Procrastination in trial, gradual corrosion of their social reputation, deprivation of respectable livelihood because of order of suspension passed - Breach of Fundamental Right enshrined under Article 21 of the Constitution - Held that:- It is to be kept in mind that on one hand, the right of the accused is to have a speedy trial and on the other, the quashment of the indictment or the acquittal or refusal for sending the matter for re- trial has to be weighed, regard being had to the impact of the crime on the society and the confidence of the people in the judicial system. There cannot be a mechanical approach. From the principles laid down in many an authority of this Court, it is clear as crystal that no time limit can be stipulated for disposal of the criminal trial. The delay caused has to be weighed on the factual score, regard being had to the nature of the offence and the concept of social justice and the cry of the collective.
In the case at hand, the appellant has been charge-sheeted under the Prevention of Corruption Act, 1988 for disproportionate assets. The said Act has a purpose to serve. The Parliament intended to eradicate corruption and provide deterrent punishment when criminal culpability is proven. The intendment of the legislature has an immense social relevance. In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small and in certain cases, it is extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenet of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law. Be it noted, system of good governance is founded on collective faith in the institutions. If corrosions are allowed to continue by giving allowance to quash the proceedings in corruption cases solely because of delay without scrutinizing other relevant factors, a time may come when the unscrupulous people would foster and garner the tendency to pave the path of anarchism.
It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality. Therefore, the relief for quashing of a trial under the 1988 Act has to be considered in the above backdrop.
In the present case, as has been stated earlier, the accused, as alleged, had acquired assets worth ₹ 33.44 lacs. The value of the said amount at the time of launching of the prosecution has to be kept in mind. It can be stated with absolute assurance that the tendency to abuse the official position has spread like an epidemic and has shown its propensity making the collective to believe that unless bribe is given, the work may not be done. To put it differently, giving bribe, whether in cash or in kind, may become the “mantra” of the people. We may hasten to add, some citizens do protest but the said protest may not inspire others to follow the path of sacredness of boldness and sacrosanctity of courage. Many may try to deviate. This deviation is against the social and national interest. Thus, we are disposed to think that the balance to continue the proceeding against the accused-appellants tilts in favour of the prosecution and, hence, we are not inclined to exercise the jurisdiction under Article 32 of the Constitution to quash the proceedings. However, the learned Special Judge is directed to dispose of the trial by the end of December, 2013 positively. - Decided against the appellant.
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2013 (3) TMI 594
TDS u/s 194H - Commission or discount to distributors of SIM cards/recharge coupons - AO observed that upto financial year 2007-08, assessee has deducted TDS on amounts paid on sale of recharge coupons by treating the same as commission - Non consideration of certain issues - Held that:- issue raised in the additional ground and considered by the Commissioner of Income-tax (Appeals) by passing a common order was considered by the Tribunal and the Tribunal came to the conclusion that there is no infirmity in the order passed by the Commissioner of Income- tax (Appeals). Therefore, the contention of the assessee that the additional ground has not been considered is not correct. Under these facts and circumstances pointing out non-consideration of additional ground in the miscellaneous application filed by the assessee does not amount to mistake apparent on record and it does not come within the scope of section 254(2) of the Act - Following decision of CIT v. Idea Cellular Ltd. [2010 (2) TMI 24 - DELHI HIGH COURT] - Decided against assessee.
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2013 (3) TMI 593
Disallowance of expenditure - Travelling expenses incurred by the wife of assessee - Held that:- Assessee had furnished on record a certificate of the diamonds institution under which Ms. Monika Gupta had undergone the course in polished diamonds and holds a diploma in jewellery technique. Further details of foreign travelling expenses undertook by Ms. Monika Gupta including the foreign exchange purchased by her are enlisted at page 74 of the paper book. In the totality of the facts and circumstances of the case, where the wife of the assessee is qualified and had visited different places in lieu of the business undertaken by the sole proprietary concern of the husband, we find no merit in the orders of the authorities below in disallowing the said expenditure. The expenditure having been incurred for the purpose of business of the assessee is to be allowed as a deduction.
Assessing Officer noted that the car in respect of which the expenditure was debited to the sole proprietary concern of the assessee belongs to the firm M/s. Windsor Exports in which he was a managing partner. The assessee failed to produce any evidence in respect of use of the said car for business purpose of proprietary concern. Accordingly, the said disallowance of ₹ 58,696 was made by the Assessing Officer which was confirmed by the Commissioner of Income-tax (Appeals). The same is upheld - Decided partly in favour of assessee.
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2013 (3) TMI 592
Mainatainability of appeal - tax effect in the appeal filed by the Department is less than the amount prescribed by the CBDT - Held that:- Board’s instruction or directions issued to the other income-tax authorities are binding on those authorities, therefore, the Department ought not to have filed the appeal in view of the above mentioned sect ion 268A since the tax effect in the instant case is less than the amount prescribed for not filing the appeal - CBDT has issued Instruction No.3 of 2011 dated 09.02.2011, by which the CBDT has revised the monetary limit to ₹ 3,00,000/ - for filing the appeal before the Tribunal . Keeping in view the CBDT Instruct ion No.3 of 2011 dated 09.02.2011 and also the provisions of Sect ion 268A of Income Tax Act , 1961, we are of the view that the Revenue should not have filed the instant appeal before the Tribunal. - Decided against Revenue.
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9911796707
