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Showing 341 to 360 of 692 Records
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2010 (5) TMI 598
Imposition and demand of "interest" under section 158BFA(1). - Held that:- The case that has been moulded in exhibit P6 petition filed before the second respondent and also in this writ petition is that, the direction/permission to realise "interest" as given in the "post script" is subject to the terms as specified in the order and since exhibit P4 order specified payment of tax alone within the specified time (lest it should attract interest u/s 245D(6A)), no such liability to satisfy "interest" u/s 158BFA is there. - Decided against Assessee.
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2010 (5) TMI 596
Whether Assessee would be liable to deduct tax, in the situation Revenue never considered such receipts taxable in India. - Rectification of Order by Tribunal u/s 254(2) - Held that:- payments made by the assessee were being considered as royalty,whether there was any permanent establishment in India or whether the receipts would be taxable in the hands of the recipient became irrelevant. This ruling was made on the basis of section 9(1)(vi). decided against Assessee. Regarding Rectification of Order. - Held that:- the Tribunal has only got a limited power of rectifying a mistake which is apparent from the record itself and even an error of judgment is outside the ambit of section 254(2) of the Act. decided against Assessee.
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2010 (5) TMI 594
Admissibility of Cenvat credit in respect of C.I. Castings and Welding Electrodes- Commissioner (Appeals) upheld the denial of Cenvat credit only in respect of Steel Castings and Welding Electrodes - Appellant contended that sugar plant being very old, some of the machineries were to be replaced and the steel castings had been used as component of the sugar mill machinery - Welding Electrodes are used with the welding machine which being classifiable under Chapter 85 are capital goods and hence the Welding Electrodes being part of such machine would be covered by the definition of capital goods - Held that plea of the appellant has to be considered for which this matter would have to be remanded to the original Adjudicating Authority - As regards the welding electrodes, while the Tribunal's in its decision in the case of Vikram Cement[2009 -TMI - 75108 - CESTAT, NEW DELHI] - held that welding electrodes used for repair and maintenance of the plant and machinery are not eligible for Cenvat credit as input however if welding electrodes are used as part of the welding machine falling under Chapter 85 of the tariff, the same would be eligible - Matter remanded to to the original Adjudicating Authority.
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2010 (5) TMI 592
Seizure - release on provisional basis - violation of Section 111(o) of the Act - Held that:- in the absence of any definite parameters having been laid down for the exercise of power by the Respondents under Section 110A of the Act, the only option that would be available to us would be to fall back on the Customs (Provisional Duty Assessment) Regulations, 1963. There is no option but to permit the release of the goods of the Appellants on their furnishing a bond of 20% of the differential duty that is to say the duty claimed by the Respondents minus the duty already paid by the Appellants in the first instance.
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2010 (5) TMI 590
Refund - Whether excise duty is leviable on 'control Samples' drawn and retained by the party, considering it to be deemed removal under Rule 9 & Rule 49 of the erstwhile Central Excise Rules, 1944 - The control samples as long as these are kept in the factory and not cleared from there shall not be chargeable to duty provided proper account is maintained - Issue entries for the goods already accounted for in RG-I or EB 4 (or both) should be made in the register in the form given in Appendix XVIII and put upto the Range Officer for his information - it is clarified that when a manufacturer preserve the samples of their product for some period for investigation complaints, if received, no duty should be charged on these samples considering that goods remain within the factory In view of settled position of law, that the circulars are binding on the department and the department cannot be allowed to say that different interpretation could be given to Rule 9 and Rule 49 of Central Excise Rules, 1944 - Rule 9 and Rule 49, as referred above have been understood and regulated by departmental instructions corrected upto 31-12-1979 and in that sequence same are accelerated by way of supplementary submissions as on 1-9-2001 indicating that the control samples cannot be subject matter of the excise duty - On the mere reading of explanation to Rule 9 and Rule 49, it appears that nothing expressly has been dealt with about the imposition of excise duty on control samples - Decided in favor of the assessee
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2010 (5) TMI 588
Waiver of pre-deposit - Service tax liability - Manpower Recruitment or Supply Agency Services - appellant had already deposited an amount of Rs. 74,12,381 as against the confirmed demand - Since the revenue's interest is secured, we consider this amount as enough deposit to hear and dispose the appeal - Application for waiver of pre-deposit of the balance amounts involved is allowed and recovery thereof stayed till the disposal of the appeal.
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2010 (5) TMI 583
Penalty - Addition - Unexplained creditor - The assessee did not furnish details like confirmation from that other party and period corresponding to purchase of yarn, or placing of order or dispute for recovery - The claim of the assessee was not supported with evidence inasmuch as he was unable to produce evidence about the nature of meetings and the persons who attended the meeting - The fact of incurring of expenditure was not doubted but what was doubted was the business purpose of the expenditure - the penalty in respect of addition of Rs.90,000 is deleted Even though onus of the assessee during the assessment proceedings is confined to submitting evidence regarding identity of the creditor, creditworthiness of the creditor and genuineness of the transaction - No party having paid money to the assessee for purchase of the goods would forgo its money if it cancels the order - There is nothing to show that the details of the funds as claimed by the assessee have actually come from the alleged purchaser or of alleged transaction or of allege failure of the transaction - Thus the explanation furnished by the assessee cannot be treated as bona fide Regarding the third condition that all the facts relating to the explanation and computation of income has been disclosed by the assessee - in the present case details of the identity of the creditor or of the broker or of the terms and conditions of the purchase or of attempts to import the goods from Singapore, or of attempt to return the money and or, of attempt to settle the dispute have not been provided - penalty is leviable under Explanation 1(B) to Sec. 271(1)(c) in respect of addition of Rs.7 lakh - In the result, appeal filed by the assessee is partly allowed
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2010 (5) TMI 582
Search and seizure - Block assessment - Undisclosed income - Application to Settlement Commission - Estimation of net profit - whether this Court in a writ petition, can interfere with such findings made on certain questions of fact -it was observed that the proper method for determining the total income of the applicant in the block period would be the net wealth accretion over the years in the block period and the Commission has totally deviated from the same - Held that: interference can be made only if it is found that the order is contrary to any of the provisions of the Act - There is no violation of the provisions of the Act and there is no error apparent on the proceedings also - The writ petition is therefore dismissed
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2010 (5) TMI 581
Search and seizure - Block assessment - Undisclosed income - The petitioners have nowhere averred in the writ petition that the Department was not possessed with any such information or material or that on the basis of such information or material no opinion with regard to undisclosed income could have been formed. In the absence of such pleadings the submission advanced on behalf of the petitioners cannot be appreciated - It is not even the case of the petitioners that the aforesaid two witnesses were not known to them or that they were not respectable persons summoned on their request - Search and seizure operation cannot be held to be, on the facts and circumstances, without jurisdiction or in contra-vention of any provision of the Act or the Rules so as to occasion this court to interfere in the matter - Decided in favour of the assessee
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2010 (5) TMI 577
Addition of Rs. 11,15,482 - Methods of accounting - Rental income - Scrutiny - assessee was running a cold storage and revenue was recognized, at the point of time of upliftment/exit of potato in good marketable condition - The storage rent did not become due prior to upliftment, this method has been followed regularly and consistently right from the beginning of the business - assessee did not receive any advance rent and the rent was charged at the time of uplifting of the potatoes since inception and this method of accounting was followed consistently and if the method was to be changed then effect was to be given for the earlier year also - assessee can either adopt a cash system of accounting or mercantile system of accounting and the said method of accounting is to be followed regularly - assessee should have shown the proportionate rental income for the period January to March 2006 also in the assessment year under consideration since the assessee is following mercantile system of accounting, the income for the period starting from 1-1-2006 to 31-3-2006 is to be accounted for on accrual basis for taxing the income in assessment year 2006-07 but the assessee is entitled to set-off of the income relating to the period 1-1-2005 to 31-3-2006 which had been received in the financial year 2005-06 and included in the taxable income, considering that the mercantile system of accounting has been adopted by the assessee
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2010 (5) TMI 576
Penalty u/s 271(1)(c) - Scrutiny - Undisclosed income - While moving application for voluntary disclosure, the assessee must disclose the correct facts, instead of making a ground on false pretext - There has been no trans- action of share of Sri Niwas Leasing and Finance Ltd. in the Delhi Stock Exchange during the period in question. There has been no sale and pur- chase of shares by M/s. S. J. Capital Ltd. between May 15, 2003 and May 21, 2003. Thus, the assessee had not approached the Assessing Officer with the clean hand - The manner in which the assessee has tried to prolong the case before the Assessing Officer by not providing information immediately and narrating incorrect facts in the letter dated December 6, 2006 shows that the assessee has deliberately concealed the income and disclosure was not voluntary but under compulsion being cornered by the Assessing Officer - Held that: disclosure by the assessee does not seem to be voluntary and bonafide but under compulsion. The assessee has not furnished correct information while moving the letter dated December 6, 2006 with unclean hand - Decided against the assessee
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2010 (5) TMI 575
Addition - Rs. 1.73 crore under the head 'business income' - Addition towards the value of 7,707 sq.ft. representing shops/flats at the rate of Rs. 2,250 per sq.ft. on the basis of statement of Shri Mohan Singhani, one of the continuing partners of the firm - The learned CIT(A) held that this addition was not sustainable on the ground that the income would be assessed in future years depending on the handing over of possession of 7,707 sq.ft. of built up area to the assessee and its subsequent sale. The learned A.R. has filed an application under Rule 27 of the ITAT Rules, 1963 contending that the learned CIT(A) failed to consider the correct valuation and area allocable. In support of his application, the learned A.R. put forth that the first appellate authority had not given any decision on the correct area and the aspect of valuation in view of his decision that income on this account would arise only when property is handed over to the assessee or subsequently sold. It was, therefore, contended that no addition be made in this year on account of the value of shops/flats and in the years of sale by the assessee, the correct area and value be directed to be considered - Appeal is partly allowed
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2010 (5) TMI 571
Income escaping assessment - Search and seizure - Reference to valuation cell - he assessment has been made on 5-9-1984 and, therefore, section 142A of the Act is not applicable in the present case and, accordingly, the reference made by the assessing authority to the valuation cell for the determination of the cost of construction for the year under consideration was without any authority of law - the valuer's report could not be made the basis for initiation of the proceeding under section 148 of the Act - Decided in the favour of assessee
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2010 (5) TMI 570
Reassessment - Claim of the deduction u/s 80HHC - Assessment after a period of four years from the end of the relevant assessment year - Merely making a claim cannot be stated to be non-disclosure of material facts so as to vest in the Assessing Officer jurisdiction u/s 147 of the Act - Besides, as already noted hereinabove, the respondent seeks to reopen the assessment after a period of four years from the end of the relevant assessment year - In the reasons recorded, there is nothing to indicate that the assessee has failed to disclose fully and truly all material facts necessary for its assessment for the year under consideration - Hence, the ingredients of the proviso to section 147 of the Act are clearly not satisfied - In the circumstances, there is no justification for assumption of jurisdiction by the respondent-Assessing Officer for reopening the proceedings u/s 147 of the Act - the petition succeeds and is accordingly decided in favour of assessee.
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2010 (5) TMI 569
Condonation of delay - In the present case, the trial was initiated on March 31, 1987 in respect of the assessment year 1976-77 - There is no explanation given by the respondents as to why other prosecution witnesses have not been examined despite the passage of time and it is also evident from the record that there is no explanation given by the Income-tax Department for the delay in examining the other prosecution witnesses - Accordingly, the present complaint is quashed subject to a deposit of Rs.25,000 in the Prime Minister's Relief Fund by petitioner No. 2 - he amount be deposited within four weeks and an affidavit of compliance along with the receipt of payment be filed on record with a copy to Mr. Sabharwal
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2010 (5) TMI 565
Penalty u/s 271D - Treatment of share application money as Deposit - The object of introducing section 269SS is to ensure that a taxpayer is not allowed to give false explanation for his unaccounted money, or if he makes some false entries, he shall not escape by giving false explanation for the same. During search and seizures, unaccounted money is unearthed and the taxpayer would usually give the explanation that he had borrowed or received deposits from his relatives or friends and it is easy for the so-called lender also to manipulate his records to suit the plea of the taxpayer. The main object of section 269SS was to curb this menace of making false entries in the account books and later giving an explanation for the same.” - In absence of any judgment of Hon’ble Apex Court or of Hon’ble jurisdictional High Court on the issue, the considered opinion that the contribution towards share application money received in cash does not come within the scope and ambit of the expression ‘deposit’ appearing in the provisions of section 269SS in order to justify the levy penalty under section 271D - Hence the ld. CIT(A) was correct in law in deleting penalty under section 271D - The appeal of the revenue is dismissed
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2010 (5) TMI 564
Penalty - Addition - The learned counsel for the assessee has submitted that there is no requirement to disclose in the audit report the matter with regard to disallowance of loss within the meaning of Section 94(7), and as such mere because the fact of disallowance of loss to be made u/s 94(7) was not mentioned in the audit report, it could not be said that the assessee has concealed the particulars of his income or furnished inaccurate particulars of his income - What has been disclosed by the assessee in the return of income is only the amount of loss adjusted against the other taxable income of the assessee, and amount of dividend claimed exempt without disclosing any other particulars whatsoever relating to the purchase and sale of units - it is a case where the assessee has failed to furnish any explanation and material particulars relating to the income and loss arising to the assessee on purchase and sale of the units in question as to why the loss incurred on sale of units were not adjusted or set off against the dividend income - It is well settled that all and every fanciful and fantastic explanation offered by any person cannot in itself be construed to be a bona fide one Tribunal has cancelled the assessment on account of legality of the notice taken up in appeal, and, therefore, on this ground alone, the penalty cannot be imposed - At this stage, a reference is made to a decision of Hon'ble jurisdictional high Court of Delhi in the case of CIT vs Escorts Finance Ltd. dated 21th August, 24, 2009 where penalty levied u/s 271(l)(c) in respect of the disallowance of assessee's claim made u/s 35D for expenses incurred for public issue of shares was held to be justified - u/s 94(7) of the Act, against the taxable profit of the assessee instead of adjusting the same against exempted dividend income and thereby derived double benefit, is totally in disregard to the clear and unambiguous provisions contained in Section 94(7) of the Act and is not bonafide, and further, the assessee has failed to disclose fully and truly all materials relating to that claim in the return of income - In the result, the appeal filed by the assessee stands dismissed
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2010 (5) TMI 563
Addition - unexplained share application money - Tribunal recorded that all payments were received by cheques and were credited in the bank account of the respondent; the share application forms contained all details of the depositors; their confirmations were clear with all addresses; and that they were on the departmental records as tax-payers - Tribunal was of the view that the assessee had given the names and addresses of the share applicants, it was within the knowledge of the revenue that the said share applicants were assessed to Income-tax, hence the burden was on the revenue to make further inquiry - In absence of any findings recorded by the Assessing Officer to the effect that the share applicants are bogus, there is nothing on record to doubt or disbelieve the confirmations and application forms submitted by the depositors - Whether burden has been discharged or not is a question of fact - Decided in the favour of assessee
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2010 (5) TMI 559
Apppeal to Tribunal - The appellants have not been able to obtain the COD clearance from the concerned Committee and delay in approaching the Committee for necessary clearance - The appeals involving high revenue stakes remain pending for number of years on account of no fault on the part of the department - The revenue’s claim for crores of rupees is involved, no efforts were made by the department - Fact to the notice of the Hon’ble Finance Minister, the Revenue Secretary and the Chairman of the Board - The Registrar of CESTAT, New Delhi is directed to forward copy of this order to the Hon’ble Finance Minister, the Revenue Secretary and the Chairman of the Board within 8 days - The appeals are adjourned with the hope that the appellants would secure necessary COD clearance before that day.
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2010 (5) TMI 558
Waiver of pre-deposit - Notification No 4/06 as amended by 4/08 dated 11-3-2008 - It is undisputed that the appellant is eligible for the benefit of the said notification No 4/06 and 4/08 - Only reason for confirmation of demand is that during the intermediate period, i.e. before the entire quantity of 3500 Mts cleared from the factory premises they discharged duty on specific consignments - appellant has made out a prima facie case for the waiver of pre-deposit of the amounts involved - Accordingly decided in the favour of the assessee
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