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Case Laws
Showing 321 to 340 of 692 Records
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2010 (5) TMI 637
Demand of duty - goods were to be re-warehoused in the warehouse of the consignee on clearing the goods from the warehouse of the consignor on execution of bond by the consignor. It is also a matter of record that the goods though were cleared from the warehouse of the consignor i.e. respondent for re-warehousing in the warehouse of the consignee, before they were received in the warehouse of the consignee, at the entrance gate of the premises of the consignee, the truck carrying the goods met with an accident and the goods spilled over the ground - The records merely disclose that the goods were cleared from the warehouse of the consignor but were not received in the warehouse of the consignee. Undoubtedly, there is a claim of damage to the goods. The Mahazar report does not give detailed description of the alleged damage. It merely states that some of the granite slabs have developed cracks and some were completely damaged, appeal succeeds and the orders passed by the Commissioner (Appeals) as well as the Deputy Commissioner are hereby quashed and set aside and the matter is remanded to the Deputy Commissioner to deal with the Show Cause Notice in accordance with law and bearing in mind the observations herein and pass an appropriates order. The appeal stands disposed off.
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2010 (5) TMI 635
Revision Application - Claim for drawback - time-limits - as per applicable Rule 5 of Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 the jurisdictional Assistant Commissioner or Deputy Commissioner of Customs is empowered to condone delay of 3 months only and that on proper satisfaction about sufficient cause which prevented the exporter from in time filing of the involved DBK claim. Any act done beyond such limit can only be considered as contrary to law and such sanctioned drawback as erroneous. The power to proceed for repayment/recovery are very much thereunder Rule 7 ibid which incorporates manner of sub-section (1) of Section 142 of Customs Act, 1962. Further there is no time-limits provided for this purpose in this applicable Rule 7 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. Government finds that for the purpose of exemption from the provisions of these rules (i.e. for the purpose of condonation of involved delay beyond six months period in this case), the exporter has neither applied properly to the designated authority of Central Government as per Board’s Circular No. 12/96-Cus., dated 16-2-1996 (under applicable Rules ibid) nor has even obtained any orders of such condonation. Therefore the involved delay remains as not condoned thus making the granted drawback as erroneous, Hon’ble Supreme Court in case of Union of India v. Kirloskar Pneumatic Company (1996 -TMI - 44281 - SUPREME COURT OF INDIA) that customs authorities who are creature of Customs Act, cannot be directed to ignore or act contrary to the boundations of time-limits as provided in the statute, no infirmity in the impugned order-in-appeal and upholds the same, Revision Application is thus rejected being devoid of merits.
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2010 (5) TMI 633
Rebate - amount paid as duty on freight & insurance charges - rebate of duty is to be allowed of the duty paid on the transaction value of the goods as determined under Section 4 of the Central Excise Act, 1944 and the rebate on the amount of duty paid in respect of post-clearances expenses like freight and insurances may be allowed as recredit entry in their cenvat account – Held that:- Government cannot retain the amount collected without any authority of law and the same has to be returned to the applicant in the manner it was paid. Hence, Government observes that the applicant is entitled for credit in their cenvat account in respect of the amount paid as duty on freight & insurance charges. The applicant was not even required to make a request with the department for allowing this recredit in their cenvat account. The adjudicating officer/Commissioner (Appeals) could have themselves allowed this instead of rejecting the same as time-barred, Government allows to take credit in their cenvat account of the amount paid as duty on freight and insurance charges. The impugned orders-in-appeal and orders-in-original are modified to this extent, Revision applications are disposed off in above terms.
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2010 (5) TMI 632
Demand - order passed, asking for further payment of duty without taking into account the duty already paid - Held that:- order passed without complying with principles of natural justice was liable to be set aside, order cannot be sustained. The same is set aside with liberty to pass a fresh order in accordance with law
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2010 (5) TMI 629
Revision Application - applicant had intentionally and meticulously concealed the impugned foreign currency by placing the same in different capsules and then swallowing the same into his body It took the Air Intelligence authorities full five days to get the same ejected out of his body. Had there been not a specific information, such detection and seizure could not have been possible. Such cases are nothing but planned crimes of grave category which are handiwork of organized unlawful mafia/gangs. Any subsequent detraction from the legally admissible statement of Section 108 of the Customs Act, 1962 to gain benefit out of those provisions of law which are meant for general public/passengers who occasionally and unintentionally happens to have committed mistakes/some lapses which fall into the category of contravention of certain applicable procedures of law, cannot be accepted for this case herein – Held that:- Government has not found any merits in applicant’s submissions for redemption of impugned absolutely confiscated currency, penalty reduced, Government is of opinion that personal penalty of Rs. 10,00,000/- is too harsh and needs to be reduced, revision Application is disposed off in terms of above.
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2010 (5) TMI 628
Revision application - Goods were exported under claim for drawback under Section 75 of the Customs Act - exporter was exporting for the first time they were not conversant with the drawback formalities and so made some procedural mistake regarding declaration of sub-serial no. of drawback schedule, which resulted in delay in fixation of correct rate of drawback for the subject goods - Held that:- there is no entry applicable to declared and exported item “fishing nets” in the relevant Drawback Schedule and any afterthough/changed and subsequent claim cannot be legally permitted now. As such by virtue of note 10 of notification No. 49/96-Cus. (N.T.), the claim is not eligible under All Industry Drawback Rate, Revision Application thus rejected being devoid of merits.
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2010 (5) TMI 626
Drawback under Section 75 of the Customs Act - whether a notification issued under sub-section (1A) of Section 75 is restricted to exporters who apply for drawback as per “All Industry Rates” and as to whether the same applies to exporters who apply for drawback at “Brand Rate” also. - Held that:- petitioner though applied for drawback at “Brand Rate” is eligible for drawback on the copper used by them in the manufacture of the imported goods in view of Ext. P7 notification in which copper has been declared as deemed imported material under Section 75(1A) of the Customs Act. Consequently, the petitioner is entitled to claim drawback in respect of the amount of copper used in the manufacture of the goods exported by them, respondents are directed to calculate the amount of drawback available to the petitioner in respect of the goods exported by the petitioner which is the subject matter of Ext. P9 order and disburse the amount due to the petitioner as drawback at the rate applicable as expeditiously as possible, writ petition is allowed as above.
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2010 (5) TMI 624
Cenvat Credit - applicant has exported the goods under claim of rebate. On scrutiny of the claims, it was found that they have taken Cenvat credit on the basis of fake invoices. On investigation, it was found that their grey fabrics supplier was non-existent and applicant has taken Cenvat credit on the fake/bogus invoices issued by this non-existent supplier, without ever receiving the inputs (grey fabrics) into their factory, credit availed on strength of fraudulent invoices is confirmed - Held that:- Matter remanded to original authority for de novo proceeding about the admissibility of rebate claim which is not related to cenvat credit availed on the basis of fraudulent Central Excise Invoices, by following the principles of natural justice. The impugned orders are modified to this extent, revision application is disposed off in terms of above.
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2010 (5) TMI 622
Technical advisory services and assistance for the designing and development of the software product- Annual Contract and lump-sum consideration - Capital or Revenue Expense? - Held That:-
The assessee-company is throughout the year engaged in the business of rendering software services to its clients. Since no capital asset was acquired nor any benefit of enduring nature so as to treat the expenditure as of capital in nature has been acquired by the assessee, and since the assessee has availed of the services of M/s. Derpol Investment Ltd. in the course of carrying on its business of software development and deployment we are of the considered view that the expenditure incurred by the assessee is to be allowed as revenue expenditure irrespective of the fact whether any revenue has been generated from those services or not.
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2010 (5) TMI 620
Re-export of Imported goods - Assessee imported 6 kg Saffron - Held that - It cannot be constituted as bonafide baggage, further import of good (in commercial quantity) through banafide baggage is not permissible - In view of Mohd. Ramzan (1994 -TMI - 49180 - GOVERNMENT OF INDIA, held that re-export can be granted after redemption u/s 125 and payment of fine..
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2010 (5) TMI 618
Penalty - Applicant exported the goods and claimed drawback and declared that Cenvat has not been claimed by them or supporting manufacturers - Drawback was refunded along with interest as soon as the facts were brought to the applicant’s knowledge - Held that - Applicant company had admitted in his statement that they knew about the availment Cenvat credit facility by the manufacturer-suppliers. As such this intention to avail drawback facility willfully stands established and therefore order for imposition of penalty under Section 114(iii) of Customs Act, 1962 cannot be assailed. However as the assessee co-operated the penalty is reduced.
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2010 (5) TMI 617
Rebate claim for Export Duty - Conversion of DTA into 100% EOU - Assessee obtained permission for Conversion on 11.05.06 - Obtained Custom Licence on 11.09.06 - Executed B-17 Bond on 12.12.06 - Held That - The applicant never started working as a 100% EOU Unit like procuring the inputs free of duty under CT-3 certificates. Moreover, they continued to file various returns like ER-1 etc. with the department - Did not took benefit of B -17 Bond till 05.02.2007(when it was accepted). Assessee entitled to rebate claim.
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2010 (5) TMI 614
Source of share capital - Introduction of share capital - creditworthiness of the companies and the genuineness of the transaction. - AO made the addition whereas CIT(A) deleted such additions - Held That:- When companies had issued confirmation letters regarding purchase of shares from the assessee-company. They had also quote their PAN. Furthermore, these companies had also furnished memorandum of association and articles of association, certificate of incorporation issued by the Asstt. RoC and certificate issued by the Asstt. RoC regarding commencement of business. The assessee had also submitted resolution of board of directors of each company regarding investment in purchase of equity shares of M/s Hitkarni Prakashan Ltd. and copy of their bank accounts indicating availability of funds for purchase of shares. Thus, the assessee had proved the identity of the four companies, genuineness of transactions and also creditworthiness of the companies. We also find that each company is income-tax assessee and disclosed share application money in their accounts which were duly reflected in their IT returns. In our considered view, the learned CIT (A) was fully justified in deleting the addition. Recently, in the case of Lovely Exports (P) Ltd. [2008 (1) TMI 575 - SUPREME COURT OF INDIA] held that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law, but it cannot be regarded as undisclosed income of assessee company. Thus the appeal of revenue is dismissed.
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2010 (5) TMI 613
Change in method of accounting to reduce tax liability - Allowability of Deferred revenue expenditure as per the AS-26 issued by the ICAI, New Delhi. - held that:- The accounts of this year and earlier years have been considered by both the lower authorities, but the accounts for subsequent years have not been considered by any one of them for coming to a conclusion whether the change has been made with a view to reduce the tax liability of this year. - In view of Nonsuch Tea Estate Ltd. v. CIT (1974 - TMI - 6434 - SUPREME Court) matter requires to go back to the file of the Assessing Officer for deciding the issue afresh after giving the assessee a reasonable opportunity of being heard. While framing the fresh assessment, he shall consider the accounts of this year, earlier years and subsequent year; AS-26 in the light of entries of intangible assets made therein ; and the cases cited before us as aforesaid.
Slow moving item- write off - accepted accounting policy followed from year to year - inventory had no market value on account old and obsolete -was allowed by Tribunal
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2010 (5) TMI 612
Addition - unexplained gifts - . That the majority of the donors have been produced before the Assessing Officer during the remand proceedings and they have confirmed having given gifts to the assessee - It is a settled law that onus to prove the gift claimed to have been received by the assessee is upon the assessee - In this case, the identity of the donors is not in dispute but the creditworthiness of the donor as well as the genuineness of the gift is seriously disputed by the Assessing Officer which is sustained by the CIT(A) - the assessee and his family members claimed to have received gifts year after year on seventy one occasions and sum total of the gifts was amounting to Rs. 34,74,571 - It is against all human probabilities that the relatives who are much poorer than the assessee are giving gifts to the assessee and his family members number of times without any reciprocal gifts from the assessee's side - it is evident that none of them are assessed to tax and their only source of income claimed to be is agriculture income - Held that: assessee has not been able to establish the creditworthiness of the donors as well as genuineness of transaction in respect of gifts from viz. S/Shri Devrajbhai Jevrajbhai, Manubhai Chaganbhai Savani, Chhaganbhai Diyalbhai, Ashokbhai Chhaganbhai and Nareshbhai H. Lakhani - the addition made by the Assessing Officer is reduced by Rs. 23,720 and the remaining addition of Rs. 4,45,000 (Rs. 4,68,720 minus Rs. 23,720) is sustained - Appeals are partly allowed
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2010 (5) TMI 608
GTA service – recipient of services - payment of service tax by using cenvat credit – held that:- there is no legal bar to the utilisation of Cenvat credit for the purpose of payment of service tax on the GTA services. - , the service tax was paid out of the Cenvat credit on GTA services and, hence, the respondents were well within their right to utilize the Cenvat credit for the purpose of payment of service tax. The Commissioner(Appeals) as well as the Tribunal have rightly held that the respondents were entitled to pay the service tax from the Cenvat credit.
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2010 (5) TMI 606
Set-off of loss against transaction in derivatives segment Held that:- By Finance Act, 2005 -the transactions of futures segment w.e.f. 01/4/2006 would not be treated as speculation transactions. Therefore, for Assessment Year 2006-07, the loss incurred under derivates segment was business loss which was to be set off against the profit earned against cash segment - Since we have held that the transactions in derivatives will be treated as business income, no expenditure can be allocated towards speculative business.
Supermacy of Parliament over CBDT Notifications - Held that:- where recognition to stock Exchange was given from 25.01.2006 and transaction in future segment as normal business income from A/Y 2006-07, it was concluded that income from all transaction during P/Y 2005-2006 shall be deemed to be non speculative.
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2010 (5) TMI 605
Deductions under 80IA - What is deemed generation - Held that:- Where plant was set up for generating and selling electricity, the electricity was sold to HPGCL and in case HPGCL is not in a position to buy the electricity from the assessee, the generation of electricity had to be stopped in such a situation, HPGCL pays certain charges in order to compensate for the fixed costs, which are incurred even when there is no generation and are required to be incurred for keeping the plant in ready condition therefore, the generated income has a direct nexus with the business of industrial undertaking. Thus is eligible for deduction under 80IA,
Treatment of Provision for Bad Debt while computation of Book Profit under 115J - Held that:- As per amendment made by the Finance (No. 2) Act, 2009 in section 115JB whereby clause (i) reading as "the amount or amounts set aside as provision for diminution in the value of any asset" has been inserted in Explanation 1 to section 115JB of the Act meaning thereby that the amount or amounts set aside as provision for diminution in value of assets shall be added back to the net profit if the same is debited to the profit and loss account, for the purpose of determining the book profit under section 115JB of the Act. It is now well settled that the provision for bad debt is amounted to a provision for diminution in the value of any asset. The same shall be added back to the net profit for determining book profit. The ground raised by the assessee is rejected.
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2010 (5) TMI 602
Whether the amount paid by petitioner No. 1 to petitioner No. 2 outside India as consideration in terms of the basic engineering and training agreement dated October 22,1989 is liable to Indian income-tax as income deemed to have accrued to petitioner No. 2 in India in view of section 9(1)(vii) - No PE - Payment under protest - income received by the non-resident (such person) by way of a payment from a resident Indian for technical services rendered to him would be subject to the Indian income-tax only if it satisfies the twin test namely that the income was received in respect of services (i) rendered in India, and (ii) utilized in India or has such a live link with India that it can be treated as accrued or arisen in India - Examined on this test, the income received by petitioner No. 2 cannot be deemed to have arisen or accrued in India because the services under the BEAT agreement were not rendered within India though the drawings, designs received from petitioner No. 2 may have been utilized by petitioner No. 1 in India - Held that: the income by way of fees for technical services by the petitioner is not liable to the Indian income-tax under the Act - Decided in favor of the assessee
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2010 (5) TMI 600
Reassessment proceedings - addition on account of unexplained gift - Guinness of gift - requirement of issue of notice u/s 143(2) where return filed in pursuance of notice u/s 148 - held that:- in absence of any notice issued under sub-section (2) of Section 143 after receipt of fresh return, submitted by the assessee in response to notice under Section 148, the entire procedure adopted for escaped assessment, shall not be valid. - the requirement of notice under s. 143 (2) cannot be dispensed with. - Decided in favor of assessee.
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