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Case Laws
Showing 301 to 320 of 1558 Records
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2017 (2) TMI 1261
Validity of demand proceedings - abatement application - Compounded levy scheme - Held that: - abatement application was filed on 19-4-2000 whereas demands under show cause notices were adjudicated on 30-9-2003 without passing any order on the abatement application, therefore demand was premature.
As regard the abatement application, Commissioner instead of deciding abatement, though discussed in the findings of the order about the denial of abatement no order was passed as it clearly come out from the operative portion of the order. I am surprise to note that without any show cause notice on the application of abatement, ld. Commissioner have passed order of the demand, interest and penalty which is not permissible in law.
The matter is remanded to the original adjudicating authority, who adjudicated three show cause notices, who is directed to pass de novo adjudication order only after disposal of abatement application by the Commissioner - appeal allowed by way of remand.
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2017 (2) TMI 1260
CENVAT credit - capital goods - Merely because the invoices were not available after a period of three to four years, cannot be adopted as a ground for denial of credit but when the same original invoices were available at the time of availing credit - extended period of limitation - Held that: - The purpose of allowing the credit of duty paid on the capital goods is to reduce the duty burden on the final product and the cascading effect. Admittedly, when the appellant originally took the credit, all the entries were made in their statutory records and all the returns were also filed with their jurisdictional Central Excise authorities and were attached and all particulars are reflected in ER1 return. In such a scenario, to reject the refund claim for non-production of invoices after a period of 3 to 4 years, is neither justifiable nor warranted - matter needs to be remanded for verification of said invoices - appeal allowed by way of remand.
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2017 (2) TMI 1259
Pre-deposit - Section 35F of the Central Excise Act - Circular of the CESTAT dated 28-8-2014 - Rule 6A of CESTAT (Procedure) Rules, 1982 - Held that: - there is no provision in the Central Excise Act, 1944 and CESTAT (Procedure) Rules, 1982, CESTAT circular or C.B.E. & C. circular which states that the amount paid in one appeal could be adjusted towards another appeal. The language of Section 35F is very clear and it says that “the Tribunal should not entertain any appeal without making the mandatory pre-deposit specified in the Section” - in view the statutory provision under Section 35F of the Central Excise Act, 1944, we direct all the applicants in these appeals to make mandatory pre-deposit of 7.5%/10% as the case may be.
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2017 (2) TMI 1258
Clandestine removal - Gutkha - demand on the basis of entries made in the unloading registers and gate registers - Held that: - the department has not checked the manufacturing capacity of the manufacturing assessee and also the vouchers at the time of booking the gutka from Delhi. The entire duty demand was based on the entries made in the unloading registers and gate registers.
M/s. Supreme was also transporting gutka of other companies which were having the different trademarks like Goa 1000/Talab/Kuber & Moolchand, etc. No attempt was made by the department to examine the records of these manufacturers. Department has adopted a short-cut method by demanding the duty of the entire 63,346 bags reflected in the 13 unloading registers and gate registers. But the fact remains that the respondent-assessee was having the brand name of “Rajshree” and “Safal” and responsible to pay the duty on its trade marked stock only. The bags containing these trade marks were counted by the adjudicating authority for the purpose of duty. So, the duty was levied only on 2404 bags which were having the trade mark of “Rajshree” and “Safal” brand (in code also). The respondent-assessee is not for the duty payment for the brands which were not manufactured by them - there is no reason to interfere with the impugned order passed by the adjudicating authority.
Appeal dismissed - decided against Revenue.
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2017 (2) TMI 1257
Registration of stay petition - The stay petition is supported by an affidavit affirmed before the Attache (Passport), High Commission of India, Singapore on 14th December, 2016. It is for this reason the department had declined to accept the petition for registering the same for subsequent listing - Held that: - the provisions of the Civil Procedure Code pertaining to administration of oath for affirming an affidavit have become applicable in a writ proceeding as well, since the Writ Rules do not contain any contrary or exclusionary provision. We also do not find there is any conflict between the provisions of Section 141 read with Section 139 of the Code of Civil Procedure and the Writ Rules. Section 141 of the Code of Civil Procedure excludes writ proceedings from the ambit of the expression “proceedings” as employed in that section. But so far as Writ Rules of this Court is concerned, Rule 53 contemplates applicability of the provisions of the Code in the manner specified in the said provision. The doubt expressed by the Stamp Reporter in our opinion is unfounded, having regard to the provisions of Clause 53 of the Writ Rules.
We are also conscious of the fact that we have decided this question ex parte, without hearing the respondent on the subject controversy. But this was inevitable, considering the stage of the proceeding at which this issue was brought to our notice. In the event the respondents want to question our finding on this point, we would hear them after the petition is listed before us.
The Department is directed to accept the application and register the same, if the petition otherwise in order - petition allowed.
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2017 (2) TMI 1256
100% EOU - requirement to achieve positive net foreign exchange (NFE) during every block of five years of its existence - the decision in the case of M/s. Padmavati Impex Pvt Ltd Versus Union of India [2016 (9) TMI 525 - GUJARAT HIGH COURT] contested, where it was held that the computation of NFE would be financial year wise and which would be the beginning of the financial year following the year under which the manufacturing activity commences. Under no circumstances such period would be the period anterior with the date of manufacturing activity. Even if a literal interpretation of expression used in Clause 6.5 of the foreign trade policy is taken, it refers to the calculation of NFE cumulatively in block of five years “starting from the commencement of production” - Held that: - the decision in the above case upheld - Delay condoned - SLP dismissed.
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2017 (2) TMI 1255
CENVAT credit - Blast furnace - N/N. 76/86 dated 10.2.1986 as amended - since the said gas was cleared without payment of duty, an amount equal to 8% of the total price of the BFG recovered from M/s Indorama Cement Ltd. as demand under Rule 57AD of CER, 1944 and Rule 6 of CCR, 2002 - Held that: - Identical issue decided in the case of Union of India & Others Versus M/s. Hindustan Zinc Ltd. [2014 (5) TMI 253 - SUPREME COURT], where it was held that The respondents maintained the inventory of zinc concentrate for the production of zinc and we agree with the submission of the respondents that there was no necessity and indeed it is impossible, to maintain separate records for zinc concentrate used in the production of sulphuric acid. - the requirements of 57CC were fully met in the way in which the Respondent was maintaining records and inventory and the mischief of recovery of 8% under Rule 57 CC on exempted sulphuric acid is not attracted - appeal dismissed - decided against Revenue.
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2017 (2) TMI 1254
Disallowance u/s 14A r.w.r. 8D - Held that:- In the present case the assessee has earned exempt dividend income of ₹ 11058833/- and assessee on its own has disallowed a sum of ₹ 21952010/- in the form of ₹ 678146/- out of interest and ₹ 21273864/- in accordance with the clause (iii) of sub rule 2 of rule 8 D under section 14 A of the income tax act. Recently, the Delhi High Court in the case of Joint Investments vs ACIT [2015 (3) TMI 155 - DELHI HIGH COURT ] held that disallowance under section 14A of the Act must not be made to the extent that it is almost equal to or more than the actual dividend income received by the assessee.
As in the present case disallowance under section 14 A read with rule 8D has already exceeded by the suo Moto disallowance made of the assessee amounting to ₹ 21952010/- against the exempt income of ₹ 11058833/- therefore no further disallowance can be imputed. - Decided in favour of assessee.
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2017 (2) TMI 1253
ACIT assuming jurisdiction - Interpretation of provisions of Section 124(3)(a) - ITAT holding that the ACIT could not have completed the assessment by virtue of Section 120(4)(b)? - notification was issued under Section 120(2), conferring powers upon ACIT - Held that:- First, to deal with the issue of jurisdiction under Section 120 by virtue of Section 2(7A), it is not in dispute that the AO includes a DCIT. If so, the notice issued on 15.10.2007, was by a competent officer who always had jurisdiction to do so.
At first instance, the assessee could have raised the objection within a month having regard to the notification which existed on 01.08.2007. Secondly, even if for some reason, the assessee were unaware of the notification, it became aware that the ACIT was exercising jurisdiction when it received notice from that official in August 2008. Since that was in continuation of the proceeding by the DCIT it could well have been urged by the assessee within the stipulated time that the said officer, ACIT did not possess jurisdiction. Its failure to do so within the stipulated time, i.e. one month after receipt of notice which was in fact a condition of Section 143(2) proceeding and was treated as such by the assessee precluded it from urging lack of jurisdiction. The assessee, however, contended its omission by not urging this ground before the CIT(A) in the first ground but urging belatedly before the ITAT; precisely the situation which the provision seeks to eliminate.
As far as the issue of Section 127 goes, we are of the opinion that having regard to the findings rendered, that question does not arise.
The parties are directed to appear before the ITAT for further hearing on the merits on 27.03.2017. - Decided in favour of assessee.
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2017 (2) TMI 1252
Assessment u/s 153A - proof of incriminating material found in search - Held that:- The assessee has filed before us the copy of annual return furnished by it before the Registrar of Companies on 10th March, 2011. In Part VI of the annual return, the assessee is required to furnish the details of shares/debentures transfers since the date of last AGM. In the return, the assessee mentioned “As per list attached”. Then, in the list, the assessee has given the required details. The copy of the said list is annexed herewith as Annexure-A to this order. From this list, we find that it gives the details of date of share transfer, type of transfer, number of shares transferred, amount per share, ledger folio of transfer, transferor’s name and transferee’s name. At the outset, we find that this list pertains to shares transferred between financial year 2010-11. Therefore, this document is relevant to financial year 2010- 11 i.e., assessment year 2011-12.
Admittedly, the appeals before us are of assessment years 2005-06 to 2008-09 and therefore, this document does not pertain to the year under appeal. On this ground alone, it can be said that no incriminating documents relevant to assessment year under consideration were found. However, we are also of the opinion that this document cannot be said to be incriminating document. A copy of an annexure to the annual return already furnished by the assessee with the Registrar of Companies before the date of search as a part of the annual return which is to be furnished in the statutory form can never be said to be an incriminating document. Moreover, the shares are transferred by one person to another. The assessee is neither transferor nor the transferee. So far as the assessee is concerned, no financial transaction took place by the assessee even during the financial year 2010-11.
Thus respectfully following the decision in the case of Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT) we hold that the additions are beyond the scope of assessment under Section 153A - Decided in favour of assessee.
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2017 (2) TMI 1251
Penalty u/s 271(1)(b) - unexplained bank account - Held that:- There was compliance by the assessee to each and every letter or notice issued by the A.O. Thus it cannot be said that the assessee did not comply with the notices/letters. Therefore, the penalty levied by the AO u/s 271(1)(b) was not justified. In the instant case the Ld.CIT(A) confirmed the penalty for the reason that the assessee did not give the consent form for obtaining the bank statement.
In our opinion, when nothing was brought on record to substantiate that the alleged bank account actually belonged to the assessee, there was no possibility of furnishing the consent form, particularly when the assessee time and again denied that the alleged bank account belonged to him. Therefore, we are of the confirmed view that the sustenance of penalty u/s 271(1)(b) by the Ld.CIT(A) was not justified, particularly when the assessee complied with the notice/letters issued by the A.O. and it was not possible for him to give the consent form for obtaining the bank statement, as the same did not belong to him. We, therefore, considering the totality of the facts, delete the penalty u/s 271(1)(b) of the Act levied by the AO and sustained by the Ld.CIT(A). - Decided in favour of assessee.
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2017 (2) TMI 1250
Condonation of delay - Held that:- We find that the authorities below should have decided the appeal on merits instead of dismissing it straightway on the ground of delay and laches, inasmuch as the assessee-appellant has been able to show reasonable cause in delayed filing of the appeal. The explanation furnished by the assessee in not approaching the appellate authority, as noticed above, appears to be plausible.
In view of the above discussion, the appeal is allowed.
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2017 (2) TMI 1249
Exercise of revisional jurisdiction under Section 397 Cr.P.C. by HC for quashing the charges framed - Charges under Section 13(1)(d) & 13(2) of the Prevention of Corruption Act, 1988 read with Section 120B of IPC - non-issuance of quarry licence - Jurisdiction of High Court - Respondent Mehdu had facilitated Shri Kishan Singh Rawat to carry on illegal mining by which, he obtained illegal benefits to the detriment of State of Rajasthan as well as Smt. Sushma Devi. The quarry licence granted to Sushma Devi was cancelled by Mehdu to facilitate Kishan Singh Rawat to carry on illegal mining on the plot, which was included in the quarry licence of Sushma Devi. Shri Mehdu being a public servant
Held that:- There was a clear allegation in the chargesheet that quarry licence to Kishan Singh Rawat was given by Shri Mehdu in furtherance of object and purpose of illegally benefitting Kishan Singh Rawat. It was further stated that although, approval for quarry licence on Plot No. 1345/1185/124 area 3 bigha was granted, total area of which comes to only 52,272 Sq. ft., whereas in the technical map, area was shown 80,000 Sq. ft. dishonestly benefiting Kishan Singh Rawat.
Special Judge had observed that final adjudication of charge cannot be made unless oral and documentary evidence are received. The High Court has not adverted to the technical map which mentions 80,000 Sq. Ft. and without adverting to that allegation, has erroneously observed that there is no allegation which may come within the meaning of 13 (1) (d) read with 13(2) of the Act. Both chargesheet and order of the learned Special Judge have specifically noted the allegations, which clearly makes out an offence under Section 13(1)(d) and 13(2) of Prevention and Corruption Act, 1988 and Section 120B I.P.C.
The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure
Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. SEE Amit Kapoor Versus Ramesh Chander & Anr. [2014 (1) TMI 1042 - Supreme Court Of India ]
Thus we are of the considered opinion that High Court erred in quashing the charges framed by the order dated 05.05.2009. In result, both the appeals are allowed.
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2017 (2) TMI 1248
Entitlement to be enlarged on bail - Offences to be cognizable and non-bailable – PMLA Act - Held that:- A reasonable satisfaction as contemplated under Sub-section (2) of Section 45 would be construed as a similar offence contemplated under the same statute and not in another offence under the general statute or other statutes. In the present case, the values of the properties of the applicant which are attached by the Economic Wing is much more than the liability which is indicated in the complaint against the present applicant. Moreover, the office-bearers of the accused, who are actively involved in trading on the platform of NSEL have not been taken into custody under the provisions of the PMLA. The principal accused Jignesh Shah has also been enlarged on bail Hence, the applicant deserves the same relief.
The observations herein are restricted to an application under Section 439 of Cr.P.C. and the same shall not be taken into consideration for the purpose of quashing of FIR, discharge application or at the time of trial.
(i) The application is allowed.
(ii) The applicant be enlarged on bail on furnishing P.R. Bond in the sum of ₹ 1,00,000/- (Rupees one lakh only) with one or more solvent sureties.
(iii) The applicant shall mark his presence before the Economic Offences Wing on first Sunday of each month till the conclusion of the trial.
(iv) Upon failure to attend on any two consecutive dates, the prosecution will be at liberty to file an application seeking cancellation of bail under Section 439(2) of Cr.P.C. Application stands disposed of.
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2017 (2) TMI 1247
TDS deduction from the petitioner’s payments - Held that:- The Court is of the opinion that the representatives of the Defence Accounts Department and the concerned Commissioners, Income-Tax should attempt to resolve the issue. They may meet at a convenient date and reconcile the documents/receipts towards the TDS deducted from the petitioner’s payments.
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2017 (2) TMI 1246
Winding-up petition - cases refereed to NCLT - Held that:- In terms of the notification Regd. No.D.L.-33004/99 dated 07.12.2016, issued by the Ministry of Corporate Affairs and in particular, Clause 5 thereof, the present winding up petition under Sections 433(e), 434 and 439 of the Companies Act, 1956, stands transferred to the Principal Bench, National Company Law Tribunal, New Delhi (hereinafter referred to as ‘NCLT’).
The Registry is directed to transmit the record of the present petition to the Principal Bench, NCLT, forthwith. In view of the orders passed in the accompanying petition herein today, list this application before the Principal Bench, NCLT along with the accompanying petition on the date already fixed therein i.e. 21.04.2017, for further proceedings, in accordance with law.
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2017 (2) TMI 1245
Exemption u/s 11 - hostel surplus fee receipts treating it as business income in the hands of appellant u/s 11(4)/11(4A) - disallowance of depreciation - Held that:- As perused the records especially the order of the Ld. CIT(A) and the order of the Hon’ble High Court of Delhi in the case of Director of Income Tax (Exemption) vs. Indraprastha Cancer Society [2014 (11) TMI 733 - DELHI HIGH COURT] wherein held that where a charitable institution, which has purchased capital assets and treated amount spent on purchase of capital asset as application of income, is entitled to claim depreciation on same capital asset utilized for business.- Decided in favour of assessee.
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2017 (2) TMI 1244
Delay in filing appeal - the decision in the case of COMMISSIONER OF CUSTOMS (IMPORT) Versus WILHELM TEXTILES INDIA PVT. LTD. [2016 (9) TMI 1370 - DELHI HIGH COURT] contested - when the earlier order passed by the High Court of Delhi was challenged before this Court, it had dismissed the special leave petition on the ground of delay, keeping the question of law open - Held that: - issue notice on the special leave petition, as also on the prayer for interim relief.
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2017 (2) TMI 1243
Allowability of loss - Tribunal allowing the loss as business loss being related to forward contracts which are integral or incidental to the export of diamonds arising from cancellation of matured contracts - Held that:- The issue arising herein stands concluded against the Revenue and in favour of the respondent assessee by the decision of this Court in Commissioner of Income Tax Vs. M/s. D. Chetan & Co. (2016 (10) TMI 629 - BOMBAY HIGH COURT ) held Tribunal was justified in deleting the addition of 'Mark to Market' Loss made by the Assessing Officer on account of disallowance of loss on foreign exchange forward contract loss. - Decided in favour of assessee
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2017 (2) TMI 1242
Exemption u/s 11 - addition on account of hostel surplus fee receipts by treating it as business income in the hands of the assessee u/s. 11(4)/11(4A) - disallowance of depreciation - Held that:- As perused the records especially the order of the Ld. CIT(A) and the order of the Hon’ble High Court of Delhi in the case of Director of Income Tax (Exemption) vs. Indraprastha Cancer Society [2014 (11) TMI 733 - DELHI HIGH COURT] wherein held that where a charitable institution, which has purchased capital assets and treated amount spent on purchase of capital asset as application of income, is entitled to claim depreciation on same capital asset utilized for business.- Decided in favour of assessee.
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