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Showing 381 to 400 of 1047 Records
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2011 (1) TMI 1210
Rejecting comparable - incurring loss - HELD THAT:- It is observed that a similar issue was involved in assessee’s own case for the immediately preceding year i.e. 2003-04 and the Tribunal passed for the said year has restored the same to the file of the A.O. with a direction to decide the same afresh in the light of the decision of ITAT in the case of Sony India ( P.) Ltd.[2008 (9) TMI 420 - ITAT DELHI-H] wherein it was held that a comparable could not be excluded only on the ground of losses except in cases where there are other factors justifying exclusion of the said comparables. Respectfully following the said decision of the Tribunal in assessee’ s own case we restore this issue to the file of the A.O. for deciding the same afresh on the same line as directed by the Tribunal in A.Y. 2003-04. Ground is accordingly treated as allowed.
Different Business activites - comparables for transfer pricing analysis - HELD THAT:- the nature of business activity carried on by the four parties in question was entirely different from the business activity of the assessee. Moreover, the services rendered by these parties were in the non-technical field whereas assessee company was found to be rendering services in the technical field of research and development. As rightly held by the authorities below, the said concerns thus were functionally different from the assessee company and there was no justifiable reason to select the same as comparables for transfer pricing analysis. We therefore find no infirmity in the impugned or of the CIT(A) on this issue and upholding the same, we dismiss ground of the assessee’s appeal.
disallowance of benefit of 5% variation claimed - HELD THAT:- we restore this issue to the file of the A.O. with a direction to decide the same afresh in the light of the decision of ITAT in the case of Sony India (P.) Ltd.[2008 (9) TMI 420 - ITAT DELHI-H].
claim for adjustment - difference in risks profile - transfer pricing analysis - we restore this issue to the file of the A.O. for deciding the same afresh on the same line as has been directed by the Tribunal in A.Y. 2003-04. Ground of the assessee’s appeal is treated as allowed for statistical purpose.
comparable case - transfer pricing analysis - HELD THAT:- it is observed that M/s Ujjwal Ltd. was excluded by TPO/A.O. for the purpose of transfer pricing analysis on the ground of functional differentiation. The ld. CIT(A) however accepted the claim of the assessee for inclusion of the said party as comparable following his appellate order for A.Y. 2003-04. The Tribunal vide order dated 30.8.10 has upheld the said order of the ld. CIT(A) for A.Y. 2003-04. As the issue involved in the year under consider as well as all the material facts relevant are similar to that of A.Y. 2003-04, we respectfully follow the order of the Tribunal for 2003-04 and uphold the impugned order of the ld. CIT(A) allowing including of M/s Ujjawal Ltd. as comparable case for transfer pricing analysis. Ground of the Revenue’s appeal is accordingly dismissed.
deleting the addition - unrealised foreign exchange gain - HELD THAT:- it is observed that the addition made by the A.O. on account of foreign exchange fluctuation gain relating to ECB obtained by the assessee from its associated enterprises was deleted by the ld. CIT(A) treating the same capital receipt not chargeable to tax on the ground that it represented unrealised foreign exchange gain in respect of foreign currency loan obtained for acquisition of capital asset in India. While allowing relief to the assessee on this issue, the ld. CIT(A) followed his own appellate order passed in assessee’s case for A.Y. 2003-04 on a similar issue. As the issue involved in the year under consideration as well as all the material facts relevant are similar to that of A.Y. 2003-04, we respectfully follow the order of the Tribunal for 2003-04 and uphold the impugned order of the ld. CIT(A) and allow the relief to the assessee. Ground of the Revenue’s appeal is accordingly dismissed.
application seeking admission - additional ground - inclusion of Vimta Labs Ltd. as comparable - HELD THAT:- It is observed that although a detail submission was made on behalf of the assessee before the ld. CIT(A) on the basis of FAR analysis to show that the selection of M/s Vimta Labs as comparable is not justified, the ld. CIT(A) has not accepted the stand of the assessee on this issue without giving any cogent or convincing reasons. In its recent decision rendered in the case of Adobe Systems India (P.) Ltd.[2011 (1) TMI 933 - ITAT NEW DELHI] has held that exclusion of companies showing supernormal profits as compared to other comparable is fully justified. We, therefore, set aside the impugned order of the ld. CIT(A) on this issue and restore the matter to the file of the A.O. with a direction to decide the same afresh after taking into consideration the submissions made by the assessee before the ld. CIT(A).
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2011 (1) TMI 1209
Issues Involved:
1. Disallowance on account of CENVAT credit u/s 145(a)
2. Disallowance of deduction u/s 80-IB
3. Disallowance u/s 14A
4. Transfer Pricing Adjustment u/s 92C(3)
Analysis:
Issue 1: Disallowance on account of CENVAT credit u/s 145(a)
The AO made disallowances/additions, including CENVAT credit under section 145(a). The CIT(A) directed adjustments with reference to opening stock, purchase, and sales before considering the addition to closing stock due to unutilized CENVAT credit. The Revenue challenged this decision, arguing that the adjustment should not have been made before considering the CENVAT credit. The ITAT upheld the CIT(A)'s decision, citing relevant judgments and dismissed the Revenue's appeal on this ground.
Issue 2: Disallowance of deduction u/s 80-IB
The AO disallowed deduction u/s 80-IB based on the Chartered Accountant issuing certificates. The CIT(A) held that there is no legal requirement for the same Chartered Accountant to certify accounts and issue Form No. 10CCA for claiming the deduction. The ITAT upheld the CIT(A)'s decision, stating that the deduction cannot be denied on this ground.
Issue 3: Disallowance u/s 14A
The Revenue contested the CIT(A)'s decision to restrict the disallowance u/s 14A to Rs. 1,00,000, arguing that it ignored the ITAT Special Bench decision. However, the ITAT upheld the CIT(A)'s decision, considering it a reasonable disallowance based on the dividend income earned by the assessee.
Issue 4: Transfer Pricing Adjustment u/s 92C(3)
Regarding the transfer pricing adjustment under section 92C(3), the ITAT found that both the assessee and the AO did not comply with statutory requirements. The ITAT held that imposing enterprise level operating profits as margins earned on international transactions with associated concerns is not permissible. Citing previous Tribunal decisions, the ITAT set aside the issue for fresh adjudication in accordance with the law, directing the assessee to file a new transfer pricing study.
In conclusion, the ITAT partially allowed the Revenue's appeal, upholding certain decisions of the CIT(A) while setting aside the transfer pricing adjustment issue for fresh adjudication.
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2011 (1) TMI 1208
Issues Involved:
1. Whether the assessee has a Permanent Establishment (PE) in India.
2. Taxability of advertisement revenues pertaining to AXN channel.
3. Taxability of subscription revenues u/s 9 of the Income Tax Act, 1961.
4. Liability of the assessee u/s 234B of the Income Tax Act, 1961.
Summary:
Issue 1: Permanent Establishment (PE) in India
The assessee, a foreign company resident in Singapore, argued it did not have a PE in India as per Article 5 of the DTAA between India and Singapore. The AO determined that the assessee had a PE in India through SET India Ltd., a dependent agent. The CIT(A) held that if the service fee paid to SET India was on an arm's length basis, it extinguished the tax liability of the assessee in India. The Tribunal upheld this view, referencing the Supreme Court's decision in Morgan Stanley & Co. Inc., which stated that if the correct arm's length price is paid, nothing further would be left to tax in the hands of the foreign enterprise.
Issue 2: Taxability of Advertisement Revenues Pertaining to AXN Channel
The AO argued that ad revenues from AXN channel were taxable in India as the assessee had a PE in India. The CIT(A) held that since the assessee paid an arm's length service fee to SET India, no further profits should be taxed in India. The Tribunal upheld this decision, dismissing the Revenue's appeal on this ground.
Issue 3: Taxability of Subscription Revenues u/s 9 of the Income Tax Act, 1961
The AO assessed the entire subscription revenues retained by SET India as taxable in the hands of the assessee. The CIT(A) treated the income as business income and not royalty. The Tribunal agreed with the assessee's alternative contention that if the subscription income is considered as the assessee's income, the payment made to SET India should be treated as expenditure, resulting in nil income. The Tribunal upheld the CIT(A)'s order, dismissing the Revenue's appeal on this ground.
Issue 4: Liability of the Assessee u/s 234B of the Income Tax Act, 1961
The CIT(A) held that since the assessee was not liable to tax in India, the question of levy of interest u/s 234B did not arise. The Tribunal agreed, referencing the Bombay High Court's decision in the assessee's own case, which followed the precedent set in DIT (International Taxation) v. NGC Network Asia LLC. The Tribunal dismissed the Revenue's appeal on this ground.
Conclusion:
The appeal filed by the Revenue was dismissed. Consequently, the assessee's appeal and cross objection were also dismissed as they became infructuous.
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2011 (1) TMI 1207
Issues:
Levy of interest under section 234B of the Income-tax Act.
Analysis:
The appeal was filed by the revenue against the order of CIT(A) for the assessment year 2005-06, specifically disputing the levy of interest under section 234B of the Income-tax Act. The assessee had initially declared a total income, but the AO made adjustments resulting in a higher total income assessment. The AO also imposed interest under section 234B due to a shortfall in advance tax payment. However, the assessee contended that they were not liable for interest under section 234B, citing that the entire income of the non-resident was tax deductible at source as per section 195 of the Income-tax Act. The CIT(A) accepted the assessee's explanation and deleted the interest levy, prompting the revenue to appeal.
The Tribunal, after hearing both parties, referred to a judgment of the Hon'ble High Court of Mumbai in a similar case, which held that failure on the part of the payer to deduct tax at source could not be a basis for levying interest under section 234B when the entire tax was deductible at source. The Tribunal noted that the Learned DR did not contest that the entire income of the assessee was indeed tax deductible at source. Consequently, in line with the High Court's decision, the Tribunal found no fault in the CIT(A)'s order deleting the interest charged under section 234B. Therefore, the Tribunal upheld the CIT(A)'s decision, resulting in the dismissal of the revenue's appeal.
In conclusion, the Tribunal dismissed the revenue's appeal, affirming the CIT(A)'s order to delete the interest charged under section 234B based on the specific circumstances of the case and the legal interpretation provided by the Hon'ble High Court of Mumbai.
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2011 (1) TMI 1206
Issues:
1. Taxability of interest income on securities.
2. Disallowance of broken period interest.
3. Addition on account of deferred guarantee commission.
4. Disallowance under section 14A for exempt income.
5. Deduction of head office expenses under section 37(1) vs. section 44C.
Analysis:
Issue 1: Taxability of Interest Income on Securities (Asst. Year 2000-01):
The Revenue appealed against the interest income taxability on a due basis. The Special Bench had ruled in favor of the assessee in a previous case. The Tribunal upheld the impugned order based on the precedent, denying the Revenue's appeal on this ground.
Issue 2: Disallowance of Broken Period Interest (Asst. Year 2000-01):
The Revenue's appeal against the deletion of disallowance on broken period interest was dismissed as the Special Bench had previously ruled in favor of the assessee. The Tribunal upheld the impugned order on this issue as well.
Issue 3: Addition on Account of Deferred Guarantee Commission (Asst. Year 2000-01):
The Tribunal remitted the matter to the Assessing Officer (AO) for a final decision in accordance with the Special Bench's directions regarding the deferred guarantee commission. It was clarified that double taxation of the same income should be avoided.
Issue 4: Disallowance under Section 14A for Exempt Income (Asst. Year 2000-01):
The Tribunal directed the AO to compute disallowance under section 14A in accordance with the High Court's judgment, specifying that Rule 8D was not applicable prospectively. The Tribunal set aside the impugned order and directed a reassessment based on the High Court's ruling.
Issue 5: Deduction of Head Office Expenses under Section 37(1) vs. Section 44C (Asst. Year 2000-01):
The Tribunal upheld the deletion of addition under section 37(1) for head office expenses incurred for Indian Branches, distinguishing them from common expenses under section 44C. The Tribunal agreed with the CIT(A)'s decision to allow the deduction under section 37(1) for specific expenses incurred for the Indian Branches.
Asst. Year 2001-02:
The Tribunal dismissed some grounds as mutatis mutandis similar to the previous year, while others were restored to the AO for a fresh decision.
Asst. Year 2005-06:
The Tribunal set aside the impugned order and restored the matter to the AO for fresh consideration based on the facts and circumstances similar to the previous year.
In conclusion, the Tribunal partially allowed the appeals for statistical purposes across the assessed years, addressing various taxability and deduction issues in each case.
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2011 (1) TMI 1205
Issues Involved:
1. Disallowance of advertisement expenditure.
2. Disallowance of interest on advances to an associate company.
3. Disallowance of sundry balances written off.
4. Disallowance of bad debts.
5. Adjustment under section 92CA.
6. Non-grant of depreciation on intangible assets.
7. Levy of interest under sections 234B and 234D.
Issue-wise Detailed Analysis:
1. Disallowance of Advertisement Expenditure:
The first appellate authority treated the advertisement expenditure as business expenditure but disallowed the expenditure of the last quarter based on the date of release of advertisements. The Tribunal referenced its earlier decision for the assessment year 2002-2003, where the expenditure was allowed as revenue expenditure. The Tribunal followed this precedent and allowed the expenditure for the assessee.
2. Disallowance of Interest on Advances to an Associate Company:
The issue pertains to disallowance of interest on advances to M/s Ezeego, an associate company. The Tribunal, referencing its earlier decision for the assessment year 2002-2003, found that the issue needs reconsideration and remanded it to the Assessing Officer for fresh adjudication to examine the commercial expediency of the advances.
3. Disallowance of Sundry Balances Written Off:
The Tribunal allowed the write-off of sundry balances as business expenditure except for the TDS amount written off. The amounts written off included bills receivable for customers and advances given to suppliers, which were considered irrevocable and thus allowable as business losses under section 28.
4. Disallowance of Bad Debts:
The issue of bad debts was covered in favor of the assessee by the Supreme Court decision in the case of T.R.F. Ltd. v. CIT. Following this precedent, the Tribunal dismissed the Revenue's ground on this issue.
5. Adjustment under Section 92CA:
The Tribunal noted that a similar issue had been remanded to the Assessing Officer for fresh adjudication in the assessee's own case for the assessment year 2002-2003. The Tribunal followed the same approach and remanded the issue for fresh adjudication in accordance with the law.
6. Non-grant of Depreciation on Intangible Assets:
The Tribunal found that the factual issues regarding the depreciation on intangible assets, specifically the customer database, were not properly examined by the lower authorities. The matter was remanded to the Assessing Officer for fresh adjudication after considering all factual aspects and arguments.
7. Levy of Interest under Sections 234B and 234D:
The levy of interest under section 234B was deemed consequential. For section 234D, the Tribunal referenced the jurisdictional High Court's decision in the case of CIT v. Bajaj Hindustan Ltd., which held that the levy of interest under section 234D is applicable from the assessment year 2004-2005. Consequently, the Tribunal canceled the levy of interest under section 234D for the relevant assessment year.
Conclusion:
The assessee's appeal (ITA. No. 3751/Mum/2007) was allowed in part, with certain issues remanded for fresh adjudication. The Revenue's appeal (ITA. No. 4165/Mum/2007) was also allowed in part, with some issues dismissed and others remanded for further examination.
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2011 (1) TMI 1204
Addition - Rate of G.P - No proper exercise is done by any of the Authorities below, the matter should have been remitted back to the Assessing Officer to take into consideration of those aspects and fix the GP rate - However, having regard to the fact that it is an old matter and all the relevant data are available with us which is taken note of above and this may provide a suitable yardstick for fixing the GP rate, we are doing this exercise ourselves - The average GP rate for the last five years is 3.25 per cent and for the subsequent year it is 4.59 per cent to 5.39 per cent. The GP rate of post survey period is 8-9 per cent but that period is less than three months - Keeping in mind these GP rates, we are of the opinion that the GP rate of 5 per cent would meet the justice - These appeals is disposed of.
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2011 (1) TMI 1203
Addition - Estimation of work in progress - when there is no evidence on record to indicate that any work was actually carried out for the remaining period of the relevant previous year after the period in respect of which the last bill had been raised, the addition made by the Assessing Officer is based purely on assumption that some work must have been carried out during the said period. The Tribunal was, therefore, justified in upholding the deletion of the addition. Besides, the conclusion arrived at by the Tribunal is based upon findings of fact recorded by it after appreciating the evidence on record. In the circumstances, in the absence of any infirmity being pointed out in the findings of fact recorded by the Tribunal, the impugned order being based solely on findings of fact does not give rise to any question of law so as to call for intervention by this Court.
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2011 (1) TMI 1202
Issues Involved:
1. Applicability of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) to foreign companies.
2. Jurisdiction of the Board for Industrial and Financial Reconstruction (BIFR) to entertain references regarding foreign companies.
3. Validity of the revival scheme (SS-09) sanctioned by BIFR for Baranagore Jute Company PLC (BJC).
4. Locus standi of the petitioners to challenge the BIFR proceedings and the sanctioned scheme.
5. Interpretation of the term 'company' under SICA and its application to foreign companies.
Detailed Analysis:
1. Applicability of SICA to Foreign Companies:
The primary issue was whether SICA's ambit and coverage extend to foreign companies operating in India. The petitioners and some respondents argued that SICA does not apply to foreign companies. They contended that the language of SICA is plain, clear, and unambiguous, and thus, no external aid is required for understanding its provisions. Conversely, other respondents argued for a broader interpretation, suggesting that SICA should cover foreign companies to protect Indian shareholders, creditors, and workers.
2. Jurisdiction of BIFR:
The BIFR's jurisdiction to entertain references regarding foreign companies was questioned. The court noted that an objection regarding the BIFR's jurisdiction had been raised but not properly considered. It was emphasized that jurisdictional facts must exist for a tribunal to assume jurisdiction. The court held that the BIFR usurped jurisdiction not conferred by law, as SICA does not apply to foreign companies.
3. Validity of the Revival Scheme (SS-09):
The revival scheme sanctioned by BIFR for BJC was challenged on the grounds of jurisdiction and applicability of SICA. The court noted that if SICA does not apply to foreign companies, all proceedings and orders, including SS-09, would be invalid. The court ultimately quashed the proceedings before the BIFR, including the sanctioned scheme SS-09.
4. Locus Standi of the Petitioners:
The court examined the locus standi of the petitioners, particularly the unsecured creditor who was relegated to a civil suit by the Company Court. The court held that the writ petitioner in W.P. No. 12412(W) of 2010 had no right to seek remedy before the Writ Court regarding BIFR proceedings, as they were not directly affected by the scheme. Thus, W.P. No. 12412(W) of 2010 was dismissed.
5. Interpretation of 'Company' under SICA:
The court extensively analyzed the definition of 'company' under SICA and the Companies Act. It was noted that SICA defines 'company' as per section 3 of the Companies Act, 1956, which does not include foreign companies. The court referred to various principles of statutory interpretation, emphasizing that the legislative intent should be gathered from the language used in the statute. The court concluded that the restrictive definition of 'company' in SICA does not extend to foreign companies, and thus, SICA does not apply to BJC, a foreign company.
Conclusion:
The court held that SICA does not apply to foreign companies, and consequently, the BIFR had no jurisdiction to entertain the reference regarding BJC. All proceedings before the BIFR, including the sanctioned scheme SS-09, were quashed. The writ petition W.P. No. 12412(W) of 2010 was dismissed due to lack of locus standi, while the other two writ petitions were allowed.
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2011 (1) TMI 1201
Appellant guilty under section 454(5) of the Companies Act, 1956 - failed to file Statement of Affairs without reasonable excuse, complaint was moved by the Official Liquidator – Held that:-It is patent that if there is reasonable excuse, a person may not be held guilty under section 454(5) of the Act.
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2011 (1) TMI 1200
Transfer of shares - Defendant No. 1, which is a company, was allotted 12,000 sq. meters of land by Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO) for setting up a hotel - In MOU it was mentioned that loan amount was for 50 per cent shares of defendant No. 1 - Plaintiffs allotted 10,000 shares to defendants by increasing authorised share capital - The plaintiffs have sought a declaration that defendants 2 & 3 are neither shareholders nor directors of defendant No. 1. They have also sought a direction to defendant Nos. 2 & 3 to deliver the original share certificates for the purpose of cancellation. The plaintiffs have also sought an injunction restraining defendants 2 & 3 from representing or holding out of themselves as shareholders or directors of defendant No. 1 or acting on its behalf besides injunction against interference by them in the affairs of defendant No. 1.
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2011 (1) TMI 1199
Issues Involved:
1. Enlargement of time to file the certified copy of the sanctioned scheme with the Registrar of Companies.
2. Presumption of abandonment due to delay in filing.
3. Applicability of Rule 7 and Rule 81 of the Companies (Court) Rules, 1959.
4. Jurisdiction and discretion of the court to extend time limits.
5. Impact of procedural lapses by legal representatives on litigants.
6. Precedents and legal principles supporting the extension of procedural timelines.
Issue-wise Detailed Analysis:
1. Enlargement of Time to File Certified Copy:
The appeal was directed against an order refusing to enlarge the time for filing the certified copy of the sanctioned scheme with the Registrar of Companies beyond the permitted time. The court initially declined to condone the delay, prompting a formal application on March 22, 2010.
2. Presumption of Abandonment:
The company court dismissed the application, stating, "Upon the applicants not filing the certified copy of the order sanctioning the scheme within a month of the date of receipt thereof, a presumption arose that these applicants had abandoned the same." The court held that the applicants failed to rebut this presumption in their application and supplementary affidavit.
3. Applicability of Rule 7 and Rule 81:
The appellant's counsel cited Rule 81, which mandates filing the certified copy within 14 days or within such time as fixed by the court. Rule 7 empowers the court to enlarge or abridge the time fixed by an order of the court. The court has the discretion to extend the time even after the expiration of the appointed period.
4. Jurisdiction and Discretion of the Court:
The appellant argued that the court has the power to extend the time stipulated by the order dated July 21, 2009, under Rule 7, and there is no legal presumption of abandonment after 30 days. The learned judge did not specify under what law such a presumption arises, and sections 115 to 117 of the Indian Evidence Act, 1872, do not support such a presumption.
5. Impact of Procedural Lapses by Legal Representatives:
The appellant contended that the delay was due to the inadvertence of the clerk of the advocate-on-record, who obtained photostat signed copies instead of certified copies. The court should consider that a party should not suffer due to the lapses of their legal representatives. The appellant relied on precedents like Rafiq v. Munshilal AIR 1981 SC 1400 and National Bank Ltd. v. Dulai Kanti Chowdhury.
6. Precedents and Legal Principles:
The appellant cited several decisions supporting the extension of procedural timelines:
- Zolba v. Keshao [2008] 11 SCC 769: The Supreme Court held that procedural rules are meant to advance justice, not defeat it.
- Sambhaji v. Gangabai [2008] 17 SCC 117: The court emphasized that procedural laws should aid justice and not obstruct it.
- Coal Marketing Co. of India (P.) Ltd., In re [1967] 37 Comp. Cas. 720 (Cal.): Supported the appellant's case under Rule 7.
- Mahanth Ram Das v. Ganga Das AIR 1961 SC 882: Stated that procedural orders are in terrorem and do not estop the court from considering subsequent events.
- Chinnamarkathian v. Ayyavoo AIR 1982 SC 137: Highlighted that conditional orders create a guarantee for obedience but do not remove the court's jurisdiction to act justly.
Judgment:
After considering the arguments and precedents, the court concluded that the litigant should not suffer due to the advocate's procedural lapses. The court emphasized that procedural laws are meant to serve justice and should not be rigidly applied to deny substantive rights. Consequently, the court allowed the appeal, granting an extension for filing the certified copy of the order sanctioning the scheme with the Registrar of Companies within three weeks. The order of the single judge was set aside, and the appeal was allowed upon payment of costs.
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2011 (1) TMI 1198
Default in repayment of loan - Pursuant to enforcement of 1997 Act, undertakings of IRBI were transferred to appellant-IIBIL with effect from 27-3-1997 - Appellant gave notice to respondent for repayment of loan and on its failure to pay filed an application before High Court under section 40 - High Court rejected that application holding that same was not maintainable as it was filed under provision of a repealed Act – Held that:- High Court in the impugned judgment referred to section 13 of the 1997 Act, but failed to notice the true import of sub-section (2)(b) of section 13. Further, the High Court completely overlooked the provisions of sub-section (4) of section 4 of the 1997 Act and as a result arrived at a conclusion that is patently erroneous and cannot be sustained for a moment. application filed by the appellant under section 40 of the 1984 Act for the enforcement of its claim against respondent No. 1 was perfectly maintainable before the High Court.
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2011 (1) TMI 1197
Non-supply of documents forming part of the ADG’s investigation report
Held that:- It is directed that upon the documents being provided to the Petitioners on or before 7-1-2011, the Petitioners will be granted two weeks’ time thereafter to file their objections to the ADG’s Investigation Report. In other words, the objections will be filed on or before 21-1-2011. The CCI will reschedule the hearing fixed for 6-1-2011 to 14-2-2011 or any other date as soon thereafter as may be convenient to the CCI. In view of the need for the proceedings before the CCI to be concluded expeditiously, as mandated by the SAIL’s case (2010 (9) TMI 215 - SUPREME COURT OF INDIA), it is directed that the said time schedule should be strictly adhered to by the parties.
With the above directions the writ petitions are disposed of. The pending applications are also disposed of.
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2011 (1) TMI 1196
Tax revision - right to use - Andhra Pradesh General Sales Tax Act, 1956 - assessees treated the hiring of transit mixers as contract of transport service, and not the transfer of the right to use the goods - vehicles are maintained by the petitioners. They appoint the drivers and fix their roster. The licences, permits and insurances are taken in their names by the petitioners, which they themselves renew. The transit mixers go to Grasim's batching plants in Miyapur and Nacharam, where they are loaded with RMC and then proceed to the construction sites of customers. The product carried is manufactured by Grasim, which is delivered to the customers and the customers pay the cost of the RMC to Grasim and the petitioners nowhere figure in the process of putting the property in transit mixers to economic use – Held that:- entire use in the property in goods is to be exclusively utilised for a period of 42 months by Grasim. The existence of goods is identified and the transit mixers operate and are used for the business of Grasim. Therefore, conclusively it leads to the only conclusion that the petitioners had transferred the right to use goods to Grasim, revision cases fail and dismissed
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2011 (1) TMI 1195
Writ petition – delay in filing appeal - appeal was rejected on the ground that the said appeal, filed with a delay of 528 days, could not be admitted – Held that:- Section 31(1) of the VAT Act, and its first proviso, prescribe a maximum period of 60 days (3,0+30) for an appeal tp be entertained by the appellate authority, and not beyond. As the right of appeal conferred by the VAT Act is subject to the restrictions prescribed therein, and as the delay in the present case of 528 days is far in excess of the maximum period of 60 days within which alone can the appellate authority entertain an appeal under section 31(1), the principle of ubi jus ibi remedium has no application, writ petition fails and is, accordingly, dismissed
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2011 (1) TMI 1194
Gift tax - retiring partner gets the value of his share in the partnership assets less his liabilities at the time of his retirement - Held that:- adjustment of rights between the retiring partner and the continuing partner in the assets of the partnership where there was an element of transfer, the interest by the retiring partners to the continuing partner is not excisable to gift tax, appeals are rejected [T.M. Louiz (2000 - TMI - 40240 - SUPREME Court - Income Tax)]
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2011 (1) TMI 1193
Exemption - sale of item under brand name “double mazza” in pouch having two parts, one containing “tobacco” and the other “pan masala” - According to the assessing authority, the disputed item consisted of two commodities, “zarda”, a Schedule I item, and “pan masala”, a Schedule IV item, poured in a single pouch marking two parts separately but the customer had no option to buy either the “zarda” or the “pan masala” alone, and therefore, the disputed item should be treated as taxable under Schedule IV - Held that:- definition of “pan masala” or “pan masala with tobacco”, the General Rules for Interpretation given in the First Schedule to the Central Excise Tariff Act, 1985 have to be followed. Therefore, the disputed item manufactured by the dealer containing two separate folders, one for “pan masala” and the other for “tobacco”, but not offered to sale separately, was really a “pan masala containing tobacco” classified in Chapter 24 under the Tariff Heading 2404.49 although it was presented as the unassembled or disassembled article which had the essential character of the complete or finished article. The Tribunal erred in holding that the sale price of “tobacco” included in the total price of the disputed item should merit exemption in terms of the entry 82 of Schedule 1 of the West Bengal Sales Tax Act, 1994.
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2011 (1) TMI 1192
Condonation of delay - short payment of the tax - interest on such delayed payment of tax – Held that:- application seeking condonation of delay should be rejected on the principle that the judgment of the competent Court had already attained a finality, no explanation for the delay of one year, no sufficient cause is shown by the petitioner to condone the delay, revision petitions are dismissed
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2011 (1) TMI 1191
Writ petition - contention that dealer not afforded opportunity to be heard not tenable - Held that:- Even after the request made by the officers the petitioner did not produce the account books. After receiving the notice issued by the second respondent, the petitioner sent objections requesting an opportunity of personal hearing before concluding the proceedings, and also produced the books of accounts. During the hearing the petitioner’s authorized representative was asked to explain the turnover relating to purchase of iron and steel from dealers situated outside the State. The authorized signatory then submitted a letter admitting that purchases of raw materials were not shown in the return, and requested to pass an order adding the incorporation value of 10 per cent on the purchase value. The letter belied the petitioner’s only contention that it was denied a personal hearing before the assessment order was passed. The assessment order did not suffer from any error much less a grave error apparent on the face of the record warranting issue of a writ of certiorari to quash the assessment order, writ petition fails and is accordingly dismissed
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