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Showing 321 to 340 of 1404 Records
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2016 (10) TMI 1084
Condonation of delay - delay in filing appeal - Held that: - averment in the application does not show any good reason to consider the same - When we did not find any justification of the reason stated, length of delay became material for consideration. Such length made the appeal time barred. Accordingly, delay is not condonable - appeal dismissed being not maintainable.
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2016 (10) TMI 1083
Benefit of N/N. 99/93-C.E., dated 7-12-1993 - Foundry Grade Pig Iron - phosphorus content - The appellants contend that their product namely, ‘foundry grade pig iron’ is having phosphorous content of 0.2% and above; therefore, the same is entitled to the benefit of N/N. 99/93-C.Ex., dated 7-12-1993? - Held that: - Notification prescribes that ‘Foundry Grade Pig Iron’, falling under sub-heading No. 7201.00 of the First Schedule to the Central Excise Tariff Act, 1985, with a phosphorous content of 0.2% and above is exempted from the whole of the duty of Central Excise - The notification issued by the Central Government cannot be changed and misread by referring to some guidelines of the Circular issued by the Bureau of Indian Standards (BIS) to round off the test reports and read them to state that 0.15% and above is equal to 0.2% and above, which is the condition of the N/N. 99/93-C.E.
The argument of the appellants that once test results are in their favour, samples cannot be retested is also not a valid argument, when the Department had the intelligence of manipulation of test results and which was found to be true when the samples were sent to different laboratories for retesting and when in overwhelmingly large number of cases, the test results clearly indicated that the appellants’ unit was manufacturing low phosphorous grade pig iron, which is not entitled to the benefit of N/N. 99/93-C.E. as per the condition mentioned therein.
Time limitation - Held that: - it is on record that appellant were wilfully misstating and suppressing the facts and manipulating the test results with an intention to evade payment of Central Excise duty - Revenue can rightly issue the SCN, for the demand of the duty of Central Excise for the period of beyond one year.
Appeal dismissed - decided against appellant.
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2016 (10) TMI 1082
Invitation for bids for development and operation of three coal mines - Exercise of power of judicial review - escape from scrutiny of judicial review - whether the appellant meets the qualification criteria as provided under the heading Technical Criteria that occurs in Clauses 7.1 and 7.2 of QR? - Held that:- We have already referred to the certificate issued by GMDC in favour of the appellant and the documents filed by the appellant. The High Court has considered the documents and opined that the documents filed in support of the QR are substantially inadequate. Adverting to the facet of drilling, the writ court has opined that there is specific use of the words “drilling for the purposes of blasting”.
In Sterling Computers Limited v. M/s M & N Publications Limited & Ors (1993 (1) TMI 300 - SUPREME COURT OF INDIA) the Court has held that under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. It has also been observed that by way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry.
We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owner’s organization is taken. This ensures objectivity. Bidder’s expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.
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2016 (10) TMI 1081
Discriminatory treatment - No affidavit from the Chairperson of the C.B.D.T. - respondent no.1. - Held that:- The enigmatic omission to follow the order of the Supreme Court on ostensible reason of some disparity on account of some proceedings in the High Court or Tribunal, would surely not be permitted to be perpetuated. Hence, we are of the prima facie view that when the counsel for the respondent nos.1 and 2 has sought time to overcome the technical objection of no affidavit on behalf of the respondent no.1, despite the time being granted, we fail to understand as to why there was no affidavit from the Chairperson of the C.B.D.T. - respondent no.1.
Learned counsel for the respondent nos.1 and 2 submitted that the affidavit, which is filed at page 55 dated 20.09.2016, is along with due authority from the Chairperson of C.B.D.T. and hence though the same is in order, in case if it is required to be treated as no affidavit so far as respondent no.1 is concerned, let there be one more date and adjournment so that the technical objection could be overcome. When the Court is inclined to accept the request for adjournment so as to enable the counsel for the respondents to complete the formality of pleadings, it would be in the fitness of thing that the statement ought to have been continued. However, when the counsel has pleaded her inability to continue with the statement, this Court is of the view that the adjournment shall not in any manner create any prejudice to the applicant and similarly situated persons.
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2016 (10) TMI 1080
Refund of CENVAT credit - denial on the ground of unjust enrichment - Held that: - on plain reading of Sec. 11B 2(c), it is crystal clear that principle of unjust enrichment is not applicable for Cenvat credit refunds - refund allowed - appeal dismissed - decided against Revenue.
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2016 (10) TMI 1079
Entitled to deduction under Section 80IA - continuity of claim - Held that:- HC order confirmed. [2016 (4) TMI 221 - MADRAS HIGH COURT]
HC has said that once such initial assessment year has been opted for by the assessee, he shall be entitled to claim deduction u/s 80IA for ten consecutive years beginning from the year in respect of which he has exercised such option subject to the fulfillment of conditions prescribed in the section. Hence, the term 'initial assessment year' would mean the first year opted for by the assessee for claiming deduction u/s 80IA. However, the total number of years for claiming deduction should not transgress the prescribed slab of fifteen or twenty years, as the case may be and the period of claim should be availed in continuity.
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2016 (10) TMI 1078
Sanction for prosecution of the appellant under Section 13 of the Prevention of Corruption Act, 1988 - Held that:- What is required under Section 19 of the Prevention of Corruption Act, 1988 is that for taking the cognizance of an offence, punishable under Sections 7, 10, 11, 13 and 15 of the Act committed by the public servant, is necessary by the Central Government or the State Government, as the case may be, and in the case of a public servant, who is neither employed in connection with affairs of the Union or the State, from the authority competent to remove him. Sub-section (2) of Section 19 of the Act provides that where for any reason whatsoever any doubt arises as to whether the previous sanction, as required under sub-section (1) should be given by the Central Government or the State Government or any authority, such sanction shall be given by that Government or authority which could have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed
Having gone through the copy of note-sheets relating to sanction in question placed before us as part of rejoinder affidavit, it is evident that there had been proper application of mind on the part of the competent authority before the sanction was accorded. Our perusal of the said record does not indicate that any decision was taken by the competent authority, at any point of time, not to grant sanction so as to give the decision to grant sanction the colour of a review of any such earlier order, as has been contended before us. The opinion of CVC, which was reaffirmed and ultimately prevailed in according the sanction, cannot be said to be irrelevant for the reason that clause (g) of Section 8 of the Central Vigilance Commission Act, 2003 provides that it is one of the functions of the CVC to tender advice to the Central Government on such matters as may be referred to it by the Government.
No reason to interfere with the impugned order passed by the High Court dismissing the writ petition. Accordingly, the appeal is dismissed. The interim order dated 25.11.2014, passed by this Court, is hereby vacated. The trial court is directed to conclude the trial expeditiously.
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2016 (10) TMI 1077
Penalty - confiscation of gold - smuggling - repeat offender - Held that: - the learned Tribunal through the impugned order dated 26-7-2016 (Annexure-G), referred to the statement(s) of the petitioner recorded on 27-12-2006 and 28-12-2006, where the carrying the gold of foreign origin was admitted by the petitioner. It was also noted that the gold was carried in a concealed manner. The petitioner being a repeat offender was also noted by the CESTAT. Thus it was observed that the petitioner has failed to make out a case for waiver of penalty and thus the imposition of penalty was upheld by the Tribunal - petition dismissed - decided against petitioner.
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2016 (10) TMI 1076
Rental income derived by way of letting out of corporate office - “business income” or “income from house property” - Held that:- In the case at hand, undisputedly, when the property in question consisting of buildings and land appurtenant thereto i.e. in the shape of corporate office and quarters is owned by the assessee company and is on rent pursuant to the lease agreement dated 07.06.2007, the same has to be treated as income from house property. It does not matter if the property in question is rented out to the third party or its sister concern because sister concern is otherwise treated as a separate entity for all intents and purposes.
CIT (A) has proceeded on the basis of whims and fancies by holding that the portion of the property in question has been rented out by the assessee company to its sister concern is on temporary basis and could be taken back at any point of time by the assessee company for its business purposes. When the property in question has been rented out on the basis of lease agreement dated 07.06.2007, the sister concern becomes statutory tenant of the assessee company and the word “temporary basis” cannot be imported to interpret the lease agreement (supra).
So far as observations returned by ld. CIT (A) that depreciation has been claimed by the assessee company on business assets as far as rental income of ₹ 21,49,943/- is concerned, the same need to be strictly interpreted under the provisions contained u/s 22 of the Act.
We are of the considered view that the rental income derived by the assessee company by way of letting out the quarters to the employees of its company, who undisputedly works for conducting the business of the company, has to be treated as business income and cannot be treated as income from house property by any stretch of imagination u/s 22 of the Act.
Rental income derived by the assessee company by way of letting out of MD Office (soap unit merged with MD Office) - “income from other sources” OR “income from house property” or “business income” ?” - Held that:- Perusal of the lease agreement dated 07.06.2007, minutely perused by the ld. CIT (A), is enough to describe the property in question as total land area of 1584 sq. mtr. Having industrial shed of covered area of 733 sq. mtr. It is also subject matter of the lease agreement that the lessee has requested the lessor to renovate and reconstruct the existing constructed building as the said structure is quite old and is not suitable for lease for use of manufacture warehouse, storage of goods and offices etc. When the lease agreement is categoric enough to lease out the land and structure thereon, the same cannot be disbelieved without getting the same verified by the ld. CIT (A) and no such verification/remand report is there on the file. So, we are of the considered view that the rental income of ₹ 4,20,000/- was derived by the assessee company by letting out the land and structure thereon.
When it is not in dispute that the regular rental income of ₹ 4,20,000/- is being derived by the assessee company from the land and structure thereon from M/s. Weld Excel India Limited on the basis of lease agreement dated 07.06.2007 @ ₹ 35,000/- per month on permanent basis, it has become regular business income of the assessee company. So, we are of the considered view that AO as well as ld. CIT (A) have erred in treating the rental income of ₹ 4,20,000/- as income from other sources. So, the same is ordered to be treated as business income of the assessee company.
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2016 (10) TMI 1075
Related Party transactions - non approval from the Central Government - Held that:- Prior approval sought to be obtained from the Central Government is interalia with an object to safeguard the interest of various stakeholders viz shareholders, creditors, suppliers, etc and also to bring in transparency in the corporate dealings with respect to related party transactions.
In the present Application, the Applicants have not obtained approval from the Central Government for any of the related party transactions carried out for a period of almost 3.5 years which is mandatorily required as per the law.
In the light of aforesaid facts, circumstances and discussions of the case and comments of RoC asking the Tribunal to consider the Application by putting the Applicants to strict proof since the Applicants have not mentioned clearly as to how the offences were made good, and in the interest of justice, the prayer as sought by the applicants is premature and we are not inclined to consider the same at this stage. Therefore, the applicants are directed to approach the Central Government for approval of each of the related party transactions, which were entered with Flyington Frighters Private Limited, in accordance with section 297 of the Companies Act, 1956 and they are at liberty to approach this Tribunal subsequently in accordance with law.
Further, we also direct the Registry to forward a certified copy of this Order to the Chairman, SEBI, Mumbai for appropriate action as deem fit in view of the facts of the case and quantum of money involved moreso the Applicant Company being a Listed Company. In terms of above, the present Company Application is disposed off accordingly.
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2016 (10) TMI 1074
Clubing of offence - term of sentence - Appellant was involved in committing thefts he was charged of having committed offences on different occasions - Held that:- We do not find anything incorrect in the assessment made by the Courts below and in our view the orders of conviction recorded against the Appellant in the present cases are quite correct. We also do not find anything wrong in the quantum of sentence imposed in respect of the respective crimes. However going by the sentence calculation, the sentence imposed in respect of the first crime started with effect from 20.11.2003 and the last sentence would be over by 19.08.2022, which would effectively mean that the total length of sentences in aggregate would be around 19 years. We are not concerned with first eight matters and sentences imposed in respect of those crimes. The sentence in respect of 8th crime is presently running against the Appellant and would be over on 30.08.2017.
The maximum sentence in respect of the present crimes is two years' rigorous imprisonment. As per the record, these crimes were committed on the same day. Having considered the matters, we deem it appropriate to direct that the sentences imposed in each of the cases, i.e. (i) CC No. 158 of 2004, (ii) CC No. 1039 of 2003, (iii) CC No. 390 of 2004 and (iv) CC No. 1168 of 2006 namely those at Sl. Nos. 9 to 12 respectively as indicated in the sentence chart in the communication dated 27.05.2016 shall run concurrently with the sentence imposed in Crime No. 8 which is currently operative. We grant this benefit in respect of substantive sentences to the Appellant but maintain the sentences of fine and the default sentences. If the fine as imposed is not deposited, the default sentence or sentences will run consecutively and not concurrently.
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2016 (10) TMI 1073
Determining ALP in its international transactions - AMP expenses determination - MAM - ITAT’s observation to the effect that employing of the resale price method, would virtually cast the AMP outside the international transaction - Held that:- In this court’s opinion, ITAT's observation cannot be held as conclusive. Rather those observations are to be considered in the light of the Sony Ericsson Mobile Communications India P. Ltd.’s case (2015 (3) TMI 580 - DELHI HIGH COURT), especially paras 163 to 167 and 193 of this judgment having regard to what was stated in preceding para i.e. that AMP in such cases is to be included as part of the ALP determination as component of the international transaction and also that whether the most appropriate method is resale price method or CUP method left for application by the TPO, having regard to the peculiarities of the business module adopted by the assessee. The remit by the ITAT shall be therefore decided in the light of this court’s observations in the preceding paragraph.
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2016 (10) TMI 1072
Deduction under section 80IB(9) - eligible undertaking - Held that:- In this group of appeals, the Supreme Court, while entertaining all the special leave petitions of the department, has desired that these appeals shall not be finalized by the High Court till the matter before the Supreme Court is disposed of.
We are informed that so far, such issue is still pending before the Supreme Court. This group of tax appeals is therefore adjourned sinedie. However, it would be the duty of both sides to bring to our notice any development in the pending issue before the Supreme Court in this regard as soon as such development takes place.
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2016 (10) TMI 1071
Penalty u/s 271AAA - surrender of unexplained/ undisclosed income found during the search conducted u/s 132 - manner of undisclosed income derived - Held that:- Department had not raised any specific query regarding the manner in which the undisclosed income had been derived. In absence of query about the manner in which the undisclosed income was derived and about its substantiation, it is our considered view that the AO was not justified in imposing penalty u/ s 271AAA specially, when the offered undisclosed income was accepted by the AO and the tax due thereon had been paid by the assessee. We draw our strength from the decision in the case of Neeraj Singal vs. ACIT [2013 (6) TMI 762 - ITAT DELHI] which is identical to the present case. - Decided in favour of assessee.
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2016 (10) TMI 1070
Penalty under section 271(1)(c) - deduction under section 80IC claim - not adding back the sundry debtors written off in computation of income - Held that:- It is not in dispute that the amount of sundry balances written off was already added back in the computation of income of Baddi Unit on which deduction under section 80IC of the Act have been claimed. The assessee explained that due to inadvertent mistake, same was omitted to be added back in the computation of income of the assessee company.
Thus assessee disclosed complete facts in the return of income as well as disclosed the relevant facts before Assessing Officer at the assessment stage. The assessee on realizing the mistake that sundry debtors written off have not been added in the computation of total income, submitted before Assessing Officer to make the addition of the same amount in the computation of income of the assessee for the year under consideration. The assessee has, thus, offered explanation to the same issue. The above facts proved that explanation of the assessee was bonafide and all the facts relating to the same and material to the computation of total income have been disclosed by the assessee.
It was not intentional mistake because assessee's company is of higher income group and generally selected for scrutiny assessment. Therefore, there was no reason to believe that assessee would evade the taxes. - Decided in favour of assessee.
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2016 (10) TMI 1069
Classification of goods - whether diary whitener is classifiable under chapter heading 0401.13 or under chapter heading 0401.19 of the Central Excise Tariff? - benefit of N/N. 04/90 dated 20.3.1990 - Held that: - the chapter heading 0401.13 covers milk powder and skimmed powder specially prepared for feeding infant - Admittedly, the product involved is dairy whitener which constituents partially skimmed milk, therefore, the milk powder may be in any form i.e. full skimmed or partially skimmed powder. Therefore, the classification of the goods in question classifiable under chapter heading 0401.13 of CETA, 1985.
Whether the appellant is entitled for the benefit of Notification No.04/90 dated 20.3.1990 or not? - Held that: - N/N. 4/90-CE dated 30.3.1990 was superseded by N/N. 16/91-CE dated 25.7.1991, which exempted all goods under Tariff Sub Heading 0401.13. However, N/N. 16/91-CE was rescinded by N/N. 64/94-CE dt.1.3.1994. Therefore, the appellant is not entitled for the benefit of notification for the period 2.6.1998 to 17.7.1998.
Appeal dismissed - decided against appellant.
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2016 (10) TMI 1068
Addition made under section 69C - Held that:- When income is estimated and while assessing the same and rejecting the books of account, it would not be appropriate to rely on the books of account for any addition other than estimate made by the Assessing Officer.
In that view of the matter, the contention raised by the appellant deserves to be accepted. The income which has been added on the basis of books of account having been rejected and in that view of the matter, addition requires to be deleted. - Decided in favour of the assessee
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2016 (10) TMI 1067
TDS on deemed dividend under section 2(22)(e) - liability to pay - Held that:- Tribunal in these (TDS) proceedings have held that as the very basis for holding the respondent-assessee liable for failure to deduct tax did not subsist, the TDS proceedings must also fail. This was in view of the orders passed in the case of recipients, i.e., M/s. Siddhivinayak Realities Pvt. Ltd. and Mr. Vikas Oberoi in appeal by the authorities under the Act including this court that they were not liable to any tax as they had not received any deemed dividend under section 2(22)(e) of the Act. Once the foundation is removed, the superstructure falls (sublato fundamento cadit opus).
The grievance of the Revenue that in TDS proceedings, one must ignore the orders passed in the hands of the recipients, i.e., M/s. Siddhivinayak Realities Pvt. Ltd. and Mr. Vikas Oberoi but the officers of the Revenue administering the TDS provisions are not outside the scope of the Act and orders passed under the Act in respect of the character of the payment made under the Act are binding upon them. The fact that at the time the order of the Assistant Commissioner of Income-tax (TDS) was passed, there was basis to do so does not mean that orders passed on income in the hands of the recipients will have no bearing in deciding its validity. One must not ignore the fact that this order of the TDS officer is tentative in nature and its existence would depend upon the nature of receipt in the hands of the recipient and subject to the orders passed in respect thereof by appropriate court. - Decided against revenue
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2016 (10) TMI 1066
Unexplained cash deposits - Held that:- The conduct of the assessee is full of lapses and latches; and lacks bona fides. The original return was deliberately filed with inaccurate particulars. When the AO confronted the AIR information, the assessee cooked up a story to cover-up the gaps and claiming that the deposits in the bank account were made out of earlier withdrawals. In such suspicious circumstances, the burden of explaining the entries of transactions, as contended, squarely lies on the assessee as all the relevant facts are within her knowledge. Since the assessee failed to discharge her burden in effective terms, the IT Authorities are justified in drawing suitable inference. - Decided against assessee.
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2016 (10) TMI 1065
Valuation - whether the petroleum products cleared from warehouse to COCOO are to be valued in terms of Section 4(1)(b) of the Central Excise Act, 1944 read with Rule 7 of the Central Excise Valuation Rules? - Held that: - matter is squarely covered by the CESTAT, Bangalores decision in the case of CCE, Viskahapatnam vs. BPCL [2012 (12) TMI 471 - CESTAT, Bangalore], where it was held that it is immaterial as to whether the transaction value was based on APM or self-determined by OCM. Since in respect of transfers to COCO outlets, the price applicable to dealers at the "place of removal" (that is terminal points) has been adopted, the same is legal and proper - appeal disposed off.
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