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Showing 381 to 400 of 712 Records
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2008 (3) TMI 335
Issues:
1. Transfer of appeal from Mumbai to Delhi
2. Jurisdiction of the High Court
3. Maintainability of the writ petition
Transfer of appeal from Mumbai to Delhi:
The Assessee sought transfer of the appeal from Mumbai to Delhi citing the age of the Managing Director as a reason for inability to travel. The Tribunal rejected the transfer application twice, and the review application was also dismissed. The High Court noted that the Assessee did not challenge the rejection of the transfer application for the second time. The Court emphasized that as a legal entity, the Assessee could have been represented by an authorized person, and it was not necessary for the Managing Director to appear personally at every hearing. The High Court concluded that since the original assessment order was from Mumbai and the impugned order was also from Mumbai, the High Court lacked territorial jurisdiction to entertain the petition.
Jurisdiction of the High Court:
The High Court addressed the issue of jurisdiction concerning the petition. The Court observed that the Assessee, being a private limited company, could have been represented by an authorized person, and the physical presence of the Managing Director in Mumbai was not mandatory. The High Court held that due to the original assessment order being from Mumbai and the impugned order also being from Mumbai, the High Court did not have territorial jurisdiction over the matter. The High Court did not delve into the question of the maintainability of the writ petition when a statutory remedy of appeal was available. However, the Court granted liberty to the Petitioner to approach the Bombay High Court for suitable orders.
Maintainability of the writ petition:
The High Court dismissed the writ petition, subject to the liberty granted to the Petitioner to seek appropriate orders from the Bombay High Court. The Court did not delve into the aspect of the maintainability of the writ petition in the presence of a statutory appeal remedy. The High Court's decision was based on the lack of territorial jurisdiction due to the location of the original assessment order and the impugned order. The Court emphasized the legal entity status of the Assessee and the possibility of representation by an authorized person, negating the necessity for the Managing Director's physical presence at every hearing.
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2008 (3) TMI 334
The High Court of Judicature for Rajasthan at Jodhpur dismissed the appeal as the appellant failed to comply with the pre-deposit requirement of Rs. 1 crore within the specified time, leading to the dismissal of the appeal on 16-6-2005. The court found no grounds to interfere with the lenient view taken by the Tribunal in the order dated 4-2-2005, which required only a partial pre-deposit.
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2008 (3) TMI 333
Issues:
Challenge of confiscation and penalty imposed by Customs authorities on exported basmati rice infested with insects.
Analysis:
The Appellant exported basmati rice to Mauritius with an assessable value of Rs. 30,37,799, but the buyer rejected the rice due to insect infestation. Upon return to India, the Customs authorities confiscated the rice for violating the Prevention of Food Adulteration Act, 1954. A penalty of Rs. 75,000 was also imposed on the Appellant. The Appellant contested the confiscation and penalty, leading to the Customs, Excise and Service Tax Appellate Tribunal upholding the decision. The Appellant argued that the rice was insect-free when exported, supported by a certificate from the Directorate of Plant Protection, Quarantine, and Storage, Government of India. However, the High Court noted that the rice was infested upon re-entry to India, possibly during transit despite the initial certification.
The High Court acknowledged the low penalty amount relative to the rice's value but deemed the penalty justified due to the seriousness of importing insect-infested basmati rice in violation of food safety laws. The Court declined to interfere with the penalty's quantum, considering the gravity of the offense. Additionally, the Appellant raised concerns about a Rs. 3 lakh redemption fine imposed, representing 10% of the goods' assessable value. The Court found this fine reasonable and not excessive, rejecting the Appellant's argument against it. Ultimately, the High Court concluded that the Tribunal's decision was not unjustified or perverse, finding no substantial legal question to warrant further review.
In summary, the High Court dismissed the appeal, upholding the confiscation and penalty imposed by the Customs authorities on the Appellant for importing insect-infested basmati rice in violation of food safety regulations. The Court emphasized the seriousness of the offense and the reasonable nature of the penalties, declining to interfere with the Tribunal's decision.
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2008 (3) TMI 332
Clandestine removal of watches - Tribunal straightaway proceeded to find, that a duty of ₹ 5,12,343/- and ₹ 6,79, 563/- had been confirmed, for having illegally availed Modvat credit on the mechanical watch movements, which were not physically received by them, and duty of ₹ 6,75,109/-, which was confirmed on account of clandestine removal of wrist watches without payment of duty, was set aside, for want of sufficient proof of removal of watches by the firm, as entered in the slips, without corroboration
Held that:- The matters have been decided by the learned Tribunal in absolute hotchpotch manner, without application of mind, and without examining the entire record, from the appropriate standpoint, to arrive at an ultimately reconcilable conclusion, of the whole scenario.
In such circumstances, instead of ourselves undertaking the long drawn exercise of examining the entire record from the standpoint of every import, manufacture, disposal, stock of every article, and production, and then, to arrive at a conclusion, one way or the other, about the sustainability or confirmation of demand, or dropping of demand, we better stand advised, to set aside the entire judgment whole hog, with respect to all the four appeals, and remit the whole matter to the learned Tribunal back, with a direction, to give reasonable opportunity of hearing, rather patient hearing, to both the sides, to examine the record threadbar
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2008 (3) TMI 331
Suspension of Customs House Agent's Licence - Held that: - the order of suspension was passed seven months after the alleged misuse came to the notice of the appellant. Regulation 20(2) no doubt confers power to suspend pending enquiry. The said sub-regulation however, requires that it can be done in an appropriate case and after following procedure under Regulation 20(2).
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2008 (3) TMI 330
Whether the goods were excisable or not?
Held that:- Since marketability is an essential ingredient to hold that a product is dutiable or exigible, it was for the Revenue to prove that the product was marketable or was capable of being marketed.
Since the Revenue has failed to lead any evidence to show that the product in question was marketable or was capable of being marketed and that the product in question was a distinct product for being sold in the market, it has to be held that the product in question was not marketable. Accordingly, the appeal is accepted. Against revenue.
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2008 (3) TMI 329
Valuation of goods - Barge hire charges - Held that:- barge hire charges were incurred by the Respondent-herein for unloading from Mother Vessel on to the barge after the customs barrier stood crossed and, therefore, the barge hire charges, on facts of this case, were not includible in the assessable value of the imported goods, viz., iron ore - Decided against Revenue.
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2008 (3) TMI 328
“Whether, Tribunal was right in allowing the set off of prior years business loss and unabsorbed depreciation against short-term capital gains ? - the unabsorbed depreciation allowance of the assessment year 1996-97 shall be added to the allowance of 1997-98 and will be deemed to be the allowance of that year. The limitation of eight years shall start from the assessment of year 1997-98 – Assessee entitled to set off of unabsorbed depreciation and loss in A.Y. 2000-01 - Tribunal has rightly come to the conclusion that the assessee is entitled to the unabsorbed depreciation brought forward as on April 1, 1997, and could be set off against the business profits.
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2008 (3) TMI 327
Deduction of tax at source from payment made to non-resident – assessee providing internet access of a certain bandwidth to its subscribers - The main server, on the basis of which the internet services are provided is located in the USA. - According to the Assessing Officer, the assessee was liable to deduct tax at source from the payments made to the US party. - Assessing Officer invoked the provisions of section 9(1) (i) and section 9(1)(vii) - It was a simple case of payment for the provision a bandwidth. - Tribunal rightly came to the conclusion that there were no technical services provided by Teleglobe to the assessee and, therefore, the provisions of section 9(1) (vii) of the Act did not apply. No substantial question arises in the matter
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2008 (3) TMI 326
Whether the Tribunal was correct in law in deleting the disallowance on account of reimbursement of expenses (software services) and disallowance of deduction under section 80HHE? - Whether the action of the Tribunal in merely following its observations in relation to the assessment year 1997-98 while deleting disallowance on account of reimbursement of expenses without appreciating the differential facts of the two years is judicially justifiable? - Once the Assessing Officer allowed the deduction and the Revenue did not prefer an appeal against the said order of the Assessing Officer in so far as the present issue is concerned that would be binding on the Revenue. - Revenue is precluded from raising the issue in the present appeal – Assessee entitled to its claim of special deduction in subsequent years
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2008 (3) TMI 325
Deduction of Interest – Security transaction – adjustment u/s 143(1) – whether the difference in interest amount accounted for by the assessee on accrual basis in his books of account and the amount actually offered for taxation in computation of income submitted by the assessee should be the subject-matter of adjustment under section 143(1)(a) for raising a demand of tax and additional tax on that basis – held that - in view of the ratio laid down in Vijaya Bank Ltd.’s case [2008 -TMI - 5316 - SUPREME Court] which very much applies to the circumstances and facts of the present case, the judgment of the learned Tribunal cannot be sustained - the questions framed in all the four cases are answered as above in favour of the Revenue and against the assessee
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2008 (3) TMI 324
Advances – Bad Debts – held that - According to the Tribunal, the assessee-bank is entitled to the deduction under clause (vii) only of the difference between the provision made under clause (viia) and the bad debts written off in the accounts, without making any distinction in respect of debts relating to urban advances or rural advances. According to us, the Tribunal has not approached the issue in the proper perspective with reference to the provisions of sections 36(1) (vii), (viia) and 36(2)(v) of the Act. Now that we have explained the scope of the provisions of the proviso to clause (vii) of section 36(1) of the Act, we are of the view that the matter requires fresh consideration in the light of the said interpretation.
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2008 (3) TMI 323
Assessment – Undisclosed sources – inflated purchase price – held that - the apparent sellers who had issued sale bills were not traceable. That goods were received from the parties other than the persons who had issued bills for such goods. Though the purchases are shown to have been made by making payment thereof by Account Payee Cheques, the cheques have been deposited in Bank Accounts ostensibly in the name of the apparent sellers, thereafter entire amounts have been withdrawn by bearer cheques and there is no trace or identity of the person withdrawing the amount from the bank Accounts - In the aforesaid set of facts and circumstances of the case, the impugned order of the Tribunal is an order which is made in accordance with law and does not require any interference – decided in favor of revenue.
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2008 (3) TMI 322
Rectification of mistake – assessment – held that - The order dated February 28, 1995, passed by the Assessing Officer under section 143(3) read with section 263 of the Act had attained finality and it was only the order dated February 2, 1996, passed by the Assessing Officer under section 154 of the Act, seeking rectification, which was the subject-matter of challenge before the Commissioner of Income-tax (Appeals). However, the Commissioner of Income-tax (Appeals) illegally set aside the assessment order dated February 28, 1995, passed under section 143(3) of the Act, vide his order dated October 4, 1996 (A-2), with a direction to the Assessing Officer to examine the issue in the light of the provisions of section 50 of the Act - the Commissioner of Income-tax (Appeals) did not enjoy any jurisdiction to set aside the appeal in rectification order
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2008 (3) TMI 321
Deduction / exemption u/s 80P(2)(a)(i) - interest on bank deposit is not ancillary and incidental to carrying on of the business of providing credit facility to its members – held that - a sum of Rs. 15,98,592 received by way of interest on bank deposit is ancillary and incidental to carrying out the business of providing credit facility to its members, and, as such, exempt under section 80P(2)(a)(i) of the Act - the Tribunal was not correct in remitting the case back to the Assessing Officer for fresh computation of income in the face of the income of the assessee being exempt from tax
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2008 (3) TMI 320
Summons – failure to appear in investigation - The petitioner has received summons under Section 108 of the Act from the Directorate of Revenue Intelligence Zonal Unit, Ahemdabad. However, the petitioner failed to appear before the Directorate of Revenue Intelligence Zonal Unit, Ahmedabad for which criminal proceedings were initiated against him – Revenue’s contention that it is for the Investigating Agency to decide venue, the timings and questions and the manner of putting such questions is not acceptable - the petitioner is not an accused in this case but he is only to appear as prosecution witness and not as a defence witness – the case of the petitioner is squarely covered by the judgment of this court in the case of Tar Balbir Singh - The respondents are directed to examine and record the evidence of the petitioner at their office at Ludhiana.
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2008 (3) TMI 319
Packaging Service – Bottling of liquor – manufacture versus packaging – applicability of service tax - packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of Section 2 of Central Excise Act, 1944 in view of the definition contained in Section 65(76b) of the Finance Act especially keeping in view the exclusionary facet and further regard being had to the circular issued by Central Board of Excise and Customs – bottling of liquor is not subject to service tax under packaging service.
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2008 (3) TMI 318
Photography Service – colour photo laboratory - The colour photo laboratory in fact is an extended design of a studio - In a photography studio the photographer shoots the photos, thereafter in his dark room he develops negatives and, thereafter prints the desired size of the photographs - The work of the colour laboratory is to receive the exposed negatives/rolls, develop the same and print the photographs of the desired size as per the orders placed by the original consumer through the photographer who had taken the photographs either in the studio or anywhere else. - colour laboratories would be a part of the “photography studio or agency” involved in providing the service to the consumer and are amenable to the service tax – held that service tax on colour photo laboratory is not unconstitutional – service tax can be levied .
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2008 (3) TMI 317
Penalty – Concealment of Income - assessee made bogus claims of investment allowance and depreciation in respect of machinery which were not purchased, installed or commissioned during the previous year. The assessee has no case that it had in fact purchased and installed the machinery in respect of which benefits were claimed under the statute. On the other hand, the assessee’s case is that this is a mistake committed by the auditor and so much so the assessee is not liable to be subjected to penalty. – Held that though prepared by the auditor for the assessee, it was for the assessee to ensure that wrong claims are not made by the practitioner or auditor. Penalty imposed u/s 271(1)(c) is valid.
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2008 (3) TMI 316
Reduction in quantum of penalty – discretion power of the tribunal – Delay in payment of duty – Held that the reasoning given for reduction of penalty is not extraneous. The Tribunal is having power to reduce the penalty, by taking into the overall situation of the case. The last limb of the provision which states “or five thousand rupees whichever is greater” is a point to the position that the penalty required to the outstanding amount of duty stipulated is only the maximum amount which could be levied and the authorities have discretion to levy lesser amount depending upon the facts and circumstances of each case – Decision of the Tribunal upheld – revenue appeal dismissed.
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9911796707
