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Case Laws
Showing 321 to 340 of 444 Records
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1999 (3) TMI 133 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... the ld. JDR that by use of ldquo whole milk powder rdquo and ldquo cream rdquo being necessarily contained in the whole milk powder, the preparation should be deemed to have contained both milk and cream. The two products, viz., ldquo milk rdquo and ldquo cream rdquo are commercially known differently. When the Tariff heading uses names of two different commercial commodities joined by a conjunctive word, the preparation must contain those commodities in their natural form as available in the market. There are preparations which are made of both milk and cream. One of the examples given by the ld. Advocate, is, Gulab Jamum rsquo being a preparation of milk and cream. 8. emsp We therefore hold that all the three products are classifiable under Tariff Heading 21.07 as contended by the appellants. They are not classifiable under Tariff Heading 19.01 as held by the lower authorities. We set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1999 (3) TMI 132 - CEGAT, NEW DELHI
SSI Exemption - Value of clearances ... ... ... ... ..... assessable value of the weighing machine. He also submitted that installation charges are post manufacturing costs incurred outside the factory gate and are not liable to be included in the assessable value. He further submitted that in view of the clear findings in the adjudication order that the two units are separate with capital, machinery and machinery manufacturing premises and work force, there is no ground for clubbing their production and treating them as one unit. 4. We have perused the records of the case and have considered the rival submissions. We find that the finding with regard to optional equipment and installation charges are in conformity with the established law. With regard to the clubbing of the production of the units also, the adjudication order has given clear reasons for holding that the units are separate. The appeal of the Revenue does not bring out grounds for setting aside these findings. In the circumstances, the appeal fails and is dismissed.
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1999 (3) TMI 131 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... 84.18 and 84.19. Cooling is no doubt affected by machineries and appliances falling under Tariff Heading 84.18. But the cooling should be of the range which a refrigerator or refrigerating machines achieves i.e. around zero or sub-zero temperatures. In the present case it is not disputed that the cooling effected is from 45oC to 6oC. Further it is also clear that it is not based on the refrigerating system. We, therefore, hold that the lower appellate authority rsquo s finding that the goods would be rightly classifiable under Tariff Heading 84.19 and would therefore, be entitled to the benefit of Notification 155/86, dated 1-3-1986 is correct. Benefit of Notification 166/86-C.E. would not at all be applicable to the present goods. Collector (Appeals) has considered all relevant materials on the subject including the HSN Explanatory Notes. We have no reason to differ from his finding. Consequently we do not find any substance in the case of Revenue. Hence we dismiss the same.
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1999 (3) TMI 130 - CEGAT, NEW DELHI
... ...
... ... ..... rocessors) (1686/91-WRB, dated 3-9-1991). rdquo 6. In view of the foregoing submission ld. Advocate prays for allowing the appeals after setting aside the impugned orders. 7. Ld. SDR Shri R.D. Negi reiterates the contention of the Revenue as already set out above. 8. We have carefully considered the pleas advanced from both sides. As already held by the Tribunal in M/s. Kaytis Food Preservers (supra) reformed metal containers cannot be treated as a final product in the present case. In fact there is no process of manufacture involved in conversion of flattened metal containers to reformed metal containers. The final product in the present case is prepared and preserved food put up in unit containers which is being cleared by the appellants on payment of duty. Consequently, there is no question of denial of benefit of Modvat credit of duty paid on flattened metal containers. Hence we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1999 (3) TMI 129 - CEGAT, MUMBAI
Classification ... ... ... ... ..... Manufacturers and Formulators Association of India v. U.O.I. - 1999 (30) RLT 231. In the judgment the Court had held that notwithstanding the amendment to that heading and the introduction of note to Chapter 38, the circular of the Board directing classification pesticides not under Chapter 38, but under the appropriate Chapter 28 or 29, was not correct and struck it down, quashing notices issued and actions based on that circular. It had found that there was no distinction for the purpose of classification under Heading 38.08 of pesticides in bulk form or those to be sold as retail product. The applicability of the judgment in the consideration in this appeal is not in question. It would therefore follow that the classification approved initially of the products in question under Chapter 3808.10 was correct. No duty was payable in addition to what had already been paid and hence penalty not imposable. 4. Appeal allowed. Impugned order set aside. Consequential relief, if any.
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1999 (3) TMI 128 - CEGAT, NEW DELHI
Modvat - Interpretation of statute ... ... ... ... ..... view the intention of the legislature and the Modvat scheme as a whole would be more appropriate. In so far as the present case is concerned, I feel that since there was no dispute between the parties on this point that all other essential aspects of Modvat scheme have already been duly taken care of and therefore, it is apparent that Modvat benefit was in any case required to be allowed, it is immaterial for the purpose of this case whether the same is allowed under Rule 57Q or Rule 57A and in either case it does not affect the amount or the interest of either parties. Therefore, I feel that the question raised by ld. DR can be left to be decided in a more appropriate case later on and for the purpose of this case, it is sufficient to hold that the appellants are entitled to Modvat benefit and to this extent the conclusion of Collector (Appeals) in any case was required to be upheld. The Department rsquo s appeal is therefore, rejected as already announced in the open Court.
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1999 (3) TMI 127 - ITAT PUNE
Computation Of Undisclosed Income ... ... ... ... ..... d income can be made by applying the provisions of ss. 145 and 143(3) of the IT Act, 1961. In that case, it was found by me as a fact that seized material was not a complete record of the unaccounted transactions, but was a mere compilation of such transactions. In view of such fact, the estimate of undisclosed income was held to be justified in principle. However, in the present case, the said legal principle cannot be applied because of the distinguishable facts. In the present case, the seized material is a complete record of unaccounted sales and purchases from 3rd Nov., 1986, to the date of search. Such seized material is in the form of diaries, which were in continuity right from 3rd Nov., 1986, till the date of search. There is no material whatsoever to suggest that there was any transaction outside the books of account prior to 3rd Nov., 1986. In view of these distinguishable facts, I completely agree with the conclusion arrived at by my learned brother on this issue.
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1999 (3) TMI 126 - ITAT PUNE
Search And Seizure, Block Assessment ... ... ... ... ..... the DVO and it cannot be said that anything was hidden from the knowledge of the Department. Even in the course of assessment proceedings, the AO brought no material on record that any particular sum was incurred on the cost of construction outside the books of accounts. He has simply followed the DVO s report which was not accepted by the assessee because it was based on pure estimate. Therefore, without going into the merits of the case, we are of the considered opinion that the impugned addition cannot be treated as undisclosed income within the meaning of s. 158BB. In this view, we are supported by the decision of this Bench in the case of Parakh Foods Ltd. IT (SS) A. No. 1/(PN)/1996, dt. 14th July, 1997 and Kasat Textiles Ltd. vs. Asstt. CIT. 6. Since the assessee succeeds on preliminary ground, we do not deem it fit to go into the merits and demerits of the report of the DVO. The addition of Rs. 10,78,537 is accordingly deleted. 7. In the result, the appeal is allowed.
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1999 (3) TMI 122 - ITAT PUNE
Deduction, Appellate Tribunal ... ... ... ... ..... ourt should be kept in mind in future and utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline and the need for giving effect to the orders of the higher appellate authorities which are binding on them (emphasis supplied). From the observations of the Hon ble Supreme Court extracted above, it may be considered as settled law that the decision of the higher authorities is binding on the lower authorities in the judicial hierarchy. Accordingly, it would stand to reason that the CIT(A) and the Assessing Officer would be bound by the decision of the Income-tax Appellate Tribunal because at the time of passing the impugned orders, they were working within the jurisdiction of Pune Bench of the Tribunal. 7. In the light of the above discussion, we reverse the findings of the authorities below and direct the Assessing Officer to accept the version of the assessee. 8. In the result, the appeal is allowed.
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1999 (3) TMI 119 - ITAT MADRAS-D
Erroneous And Prejudicial Order ... ... ... ... ..... learned Departmental Representative nor the authorized representative point out any material difference in the method of valuation in respect of immovable property under r. 1BB of the WT Rules or Sch. III of WT Act. Therefore, r. 1BB and Sch. III are mandatory and are binding on the authorities below while working out the value of an immovable property. Under the facts and circumstances of the case, we hold that the orders passed by the AO were not erroneous in law. Hence the order passed by the CWT under s. 25(2) of the WT Act directing the AO to pass fresh orders after substituting the fair market value of the property situated at No. 4, Radhakrishnan Salai as worked out by the Valuation Officer in place of the value as has been worked out by the AO in his assessment in accordance with s. 7(1) r/w rr. 1 and 3 to 7 of Sch. III to the WT Act is not in accordance with law. We, therefore, set aside the order of the CWT. 8. In the result, the appeals by the assessee are allowed.
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1999 (3) TMI 117 - ITAT MADRAS-B
Income, Business Income ... ... ... ... ..... nveyance allowance, furniture allowance, etc. were held as forming part of the salary paid to the employees, because those cash payments in respect of H.R.A, conveyance allowance, etc. were received by the employees from the employer. Similar language has been used in section 28(iv) of the Act and, therefore, the value of any benefit or perquisite, whether convertible into money or not, will not take within its ambit cash payments made to the assessee by the Fans Association. The value of any benefit or perquisite whether, convertible into money or not, as mentioned in section 28(iv) should arise from the exercise of a profession. In other words, the value of benefit or perquisite should arise from the producers of the films to whom services are rendered by the assessee. Therefore, in our view the provisions of section 28(iv) are not applicable in the assessee s case in respect of cash gifted to him by the Fans Association. 10. In the result, the assessee s appeal is allowed.
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1999 (3) TMI 114 - ITAT JAIPUR
Recovery, Stay ... ... ... ... ..... income determined on assessment was substantially higher than the returned income, twice the latter amount or decision of the appeals . In the present case the reference applications are pending before the Hon ble jurisdictional High Court and pendency of reference application does not detract from that jurisdiction of the Tribunal. Therefore, in our considered view the matter regarding stay of recovery of demand rests only with the Tribunal and by exercising the powers vested in Tribunal as per the decision of the apex Court, we are of the view that the recovery of the demand should be stayed till the disposal of the reference application before the High Court. However, the assessee is directed not to dispose of any movable/immovable assets till the disposal of the reference application. The assessee is further directed to furnish an undertaking to this effect before the AO, if not furnished before it. We order accordingly. 4. In the result, the stay application is allowed.
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1999 (3) TMI 113 - ITAT HYDERABAD-B
Computation Of Undisclosed Income, Block Assessment ... ... ... ... ..... much available before the departmental authorities even before the search and seizure operations, and we cannot say that but for the search, they would not have become available to the Department. Therefore, on this short ground, we delete this amount of Rs. 27,92,842 treated as undisclosed income in this block assessment. 19. After considering all the contentions and detailed arguments of the parties, we have adjudicated all the issues raised before us in this block assessment appeal. We have deleted the undisclosed income adopted by the assessing officer on account of outstanding labour payments, vide para- 17.7 above, and on account of differential cost of construction vide para- 18.2 above. All other items of undisclosed income determined by the assessing officer have been confirmed. The assessing officer is directed to modify the block assessment in the light of directions given in par-a- 17.7 and para 18.2 above. 20. In the result, assessee s appeal is allowed in part.
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1999 (3) TMI 112 - ITAT DELHI-D
Powers Of CIT(A) ... ... ... ... ..... hat at least interest for the period from 2nd May, 1985, to 12th Feb., 1987 should be allowed also because the money was retained and utilised by the Department does not appear to be tenable as the assessee has not been in a position to draw our attention to any of the provisions of the Act which could permit allowing of interest to the assessee on the amounts so retained and utilised by the Department during the intervening period being the period from the date of seizure to the date of regular assessment when the liability was determined on completion of regular assessment or any existing liability was found payable. The assessee has also not given any working to show that the cash so seized remained with the Department after the liabilities were fully satisfied upto the date of seizure. In the absence of which we do not find any force in the ground raised by the assessee and the same is accordingly dismissed. 13. In the result, the appeal of the assessee is partly allowed.
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1999 (3) TMI 111 - ITAT DELHI-B
Advance Tax, Appellate Tribunal, Powers Of ... ... ... ... ..... ll be converted into rupees only on the last day of the accounting year. If the foreign currency has been received by the assessee during the currency of the relevant previous year, the exchange rate prevailing at the time when the payment was actually made and tax was deducted at source should be taken into consideration. This is what has been expressly provided in the proviso to rule 115 inserted w.e.f.25-5-1993. The said proviso is really, therefore, clarificatory in nature. We are, therefore, of the considered opinion that ground so raised by the assessee deserves to be accepted on merits also. The Assessing Officer will, however, be entitled to verify the correctness of the relevant exchange rate on the basis of the TDS Certificates and other relevant records maintained by the assessee. Subject to such verification by the Assessing Officer, aforesaid Ground No. 4 raised by the assessee is allowed. 10. All the aforesaid appeals are disposed of, as indicated herein before.
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1999 (3) TMI 110 - ITAT COCHIN
Appeal (Tribunal) ... ... ... ... ..... e such amendment if the mistake is brought to its notice by the assessee or the AO. Therefore, the learned representative of the assessee contended that the miscellaneous petition is to be filed either by the assessee or by the AO, as the case may be, and since in this case the miscellaneous petition is filed by the Departmental Representative the same is not maintainable. 7. After considering the submissions of the learned representative of the assessee and perusing s. 254(2) of the Act, we are satisfied that since the miscellaneous petition has been filed by the Departmental Representative and not by the AO, the same is not maintainable. Hence, we hold that the Department is at liberty to file the miscellaneous petition by the competent authority within the time-limit prescribed under the Act, if so advised. In this view of the matter, we are not inclined to consider the merit of the application. 8. In the result, the miscellaneous petition is dismissed as not maintainable.
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1999 (3) TMI 109 - ITAT COCHIN
Rectification Of Mistakes, Words And Phrases, Apparent From Record ... ... ... ... ..... ome including the share of profits from the partnership firms had been allowed. It was later that the Assessing Officer passed the order of rectification under section 154 viewing the deduction allowed originally as a mistake apparent on record. We are of the view that the matter is not free from doubt as to whether the deduction under section 32AB could be allowed at 20 of the share income from the partnership firm included in the eligible business profit of the assessee. We are inclined to agree with the learned representative of the assessee that the matter is debatable and not free from doubt and so the Assessing Officer was not correct in revising the assessment through the order of rectification under section 154. For that reason also we find that the CIT(Appeals) was justified in not upholding the order passed by the Assessing Officer. 7. In the above circumstances, we uphold the order of the first appellate authority. This appeal by the revenue is therefore dismissed.
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1999 (3) TMI 108 - ITAT CHANDIGARH
Business Expenditure ... ... ... ... ..... ls (P.) Ltd. 20. A question may be raised at this stage as to how the Third Member has expressed an opinion different from the one given by the two Hon ble Members constituting the Division Bench. In my opinion, the Third Member is fully empowered in law to arrive at the same end result as done by any of the Members constituting the Division Bench although he may do it by a different route and all that is necessary is that he must agree with one of the Members constituting the Division Bench and who have disagreed on the point at issue. By means of the present order I have held that the deduction of Rs. 10,090 is allowable and the ld. Accountant Member has also expressed a similar opinion by allowing the Miscellaneous Petition filed by the assessee. In other words, majority opinion of the Tribunal is available as a result of the present Third Member order and the matter shall now be posted before the Division Bench for passing an order in conformity with the majority opinion.
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1999 (3) TMI 107 - ITAT BANGALORE
Penalty, Concealment Of Income ... ... ... ... ..... There is no definite evidence with the department to show that the assessee had actually made investment of this amount of Rs. 57,720 in the petrol bunk at the time of acquiring the same from the erstwhile firm. For the assessment year 1978-79 therefore, we direct that the penalty under section 271(1)(c) be computed on the basis of the concealed income of Rs. 25,000 from the Petrol bunk alone as considered in the assessment year and as affirmed in the first appeal. It is thus ordered that the amount of Rs. 57,720 be deleted from the computation of penalty on concealed income for that year. For the other years however, since the penalties have been levied merely on the basis of the concealed income from running of the petrol bunk, we direct that the penalties at minimal rates be restored. 14. In the result, the departmental appeal for assessment year 1978-79 is only partially allowed to the extent as mentioned above, whereas the same for all the other years are being allowed.
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1999 (3) TMI 106 - ITAT AHMEDABAD-C
Delay In Filing Audit Report ... ... ... ... ..... egal position discussed above, penalty is not exigible under s. 271B. 12. That apart, s. 273B makes it clear that no penalty under s. 271B shall be imposable on a person if he proves that there was reasonable cause for the said failure. As far as the assessee is concerned a reasonable cause has been put-forth which has not been successfully rebutted by the authority levying the penalty. In other words, the mere fact that there is an apparent default under s. 271B by itself does not automatically lead to the levy of penalty under the said section. In this view of the matter also, the assessee is entitled to the benefit of doubt. 13. In view of the above reasoning and also relying on the decisions cited in para 5 above on behalf of the assessee we hold that the penalty was not exigible on the facts and circumstances of the present case. Hence we uphold the order of the CIT(A) in cancelling the penalty order passed by the AO. 14. In the result, the Revenue s appeal is dismissed.
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