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Showing 381 to 400 of 692 Records
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2010 (5) TMI 518
Refund - The respondents had paid export duty on the FOB value of the consignments without registering any protest. Therefore they cannot claim that they were aggrieved by the assessments treating the FOB value as transaction value. - the Circular No. 18/2008, dated 10-11-2008 issued by CBEC, it was clarified that by taking the FOB price declared by the exporter as cum-duty price and working backwards from the FOB price to determine the value for assessment - The excess duty claimed by the respondents considering the FOB price as cum-duty price is in accordance with law and the original authority should have allowed the refund - The Commissioner noted the legal position in this regard and observed that the error could be corrected invoking provisions of Section 154 of the Act and by reassessing the shipping bills under Section 17(4) of the Act - The Tribunal in the case of I.P. Rings Ltd. v. Commissioner, the respondents, the Tribunal in a similar case of erroneous assessment and collection of higher amount of duty, directed the assessing officer to reassess the Bill of Entry under Section 17(4) of the Act after allowing the assessee to amend the Bill of Entry under Section 149 of the Act - No merit in the appeal filed by the Revenue and reject the same.
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2010 (5) TMI 515
Demand - Evasion of tax - The appellant has failed to produce the document with regard to their claim of affecting sales which were included in their taxable turnover - The Trading, Profit and Loss Account reflects that income attributed to Job work is Rs. 24,43,997 and to Trading Sale is Rs. 13,96,768 - The important point to discuss at this juncture would be whether to include the value of Trading Sale in the taxable value for the purpose of computation of Service Tax or not - Notification No. 12/2003-ST, dated 20-6-2003 clearly stipulates that exemption shall be available to the value of goods and material sold subject to documentary evidence of such sale being available - On examination of those documents, it is found that all the invoices enclosed pertains to the trading/sale by the appellant to various customers which are not the invoices for the services rendered to their customer - Accordingly, the appeal is disposed of by way of remand
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2010 (5) TMI 513
Disallowance u/s 40A(3) - Freight Charges - The Assessing Officer had noticed from the LRs that each payment has made is more than Rs. 20,000 in cash in violation of provisions of section 40A(3) of the Act - Accordingly, the Assessing Officer has disallowed 20 per cent of the total freight - Held that: - since the assessee had not claimed any expenditure in respect of payment to lorry owners, either as lorry hire charges or under any other head of account, the provisions of section 40A(3) cannot be made applicable by artificially holding that the said payments are debitable to profit and loss a/c. In view of the above, after considering the totality of the facts and circumstances of the case, the disallowance made under section 40A(3) of the Act for the assessment year under consideration cannot be sustained. Hence the addition made on this account is to be deleted. - since the assessee had not claimed any expenditure in respect of payment to lorry owners, either as lorry hire charges or under any other head of account, the provisions of section 40A(3) cannot be made applicable by artificially holding that the said payments are debitable to profit and loss a/c. In view of the above, after considering the totality of the facts and circumstances of the case, the disallowance made under section 40A(3) of the Act for the assessment year under consideration cannot be sustained. Hence the addition made on this account is to be deleted. Turnover for the purpose of Sec. 44AB - Income on the basis of TDS certificate - where the receipts consisted on two accounts on account of assessee’s own trucks as well as on account of trucks owned by others but hired by the assessee, the whole of the receipts computed on the basis of TDS certificates could not be attributed as receipt on account of plying of trucks on assessee’s own account and the total receipts computed on the basis of TDS certificates could not be considered as assessee’s own receipts for the purpose of section 44AB of the Income-tax Act. The other issue raised in this appeal is with regard to disallowance of telephone expenses of Rs. 25,840 - this issue was not considered by the CIT(A) in his order - matter remanded back for this issue.
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2010 (5) TMI 511
Reference u/s 50C(2) of the Income-tax Act, 1961 - the assessee had, in the relevant previous year, sold a property by a deed registered on May 4, 2006 - Held that:- Failure of the Assessing Officer to refer valuation to the Valuation Officer definitely prejudiced the assessee to its detriment and also took away from it, a valuable right vested in it under the statute. - Matter remanded back to AO with direction.
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2010 (5) TMI 509
Waiver of pre-deposit - The appellants are the manufacturer of Spray Dried Gum Powder Edible Preparation viz.“Fresubin-Vanilla”, “Fresubin-DM” and “Fresubin-Hifibre” - The appellants had tried to persuade us that the said products amount to food mix on the basis of certain certificates stated to have been submitted - It is settled law that in the matter of classification of such products the common parlance theory plays an important role and unless the same is applied, the classification, process cannot be completed - Prima facie, do not find any case having been made out for grant of stay in relation to the demand of duty is concerned - As regards the penalty is concerned, certainly the show cause notice does not make specific reference of Section 11AC based on which the penalty has been imposed. Held that: deposit the duty amount within a period of eight weeks and on deposit of such duty amount, balance amount including the interest and penalty stands waived till the disposal of the appeal.
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2010 (5) TMI 507
Demand - Clearing and Forwarding Agency services – Assessee engaged in procuring the customers for the foreign principal and fulfilling their obligations - assessee cannot be brought within the scope of definition of ‘C and F Agent’ under section 65(25) of the Act - appeal dismissed as being devoid of merits
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2010 (5) TMI 506
Business income or Other sources - Business premises was let out to M/s. Sai Service Station Ltd. and M/s. Sai Automobile Sales & Services Pvt. Ltd. and as per the agreements entered into on 24-6-2002 royalty was payable to the assessee-company @ Rs.1,70,000/- per month from each of the above two companies and the period of agreement was 3 years from 24-6-2002 - Upon perusal of the agreements and other details AO observed that the so-called royalty income is assessable to tax as ‘income from other sources - Under the peculiar circumstances of the case, “the rule of consistency” or “res judicata” cannot be applied to the facts on hand and the issue has to be decided independently - Held that the income earned by the assessee is assessable to tax under the head “income from other sources” and not as “business income Deemed dividend u/s 2(22)(e) - receipt of loan of Rs. 11,10,000 - in view of decision of Hon’ble Bombay High Court in the case of Universal Medicare Private Ltd. (2010 -TMI - 76961 - BOMBAY HIGH COURT) issue decided in favor of assessee – In the result, appeal filed by the assessee partly allowed
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2010 (5) TMI 503
100% EOU - demand and penalty - against stipulated value addition of 47% the petitioner had been able to achieve only 21.3% value addition (at one place stated to be 17.15% / 16.26%). The shortfall was thus to the extent of more than 50% of the stipulated limit as the petitioner was not in a position to complete manufacture and achieve export of almost 26% within the period of remaining three months. - petitioner was called upon to pay the demand and penalty was levied before the stipulated period of one year was over, suffice it to state that the petitioner was not in a position to comply with the stipulated limit of value addition even if the authorities had granted further time to the petitioner - authorities have taken action within the period of one year no prejudice has been caused to the petitioner – Petition rejected
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2010 (5) TMI 501
DEPB scheme – refund by re-credit – online facility – re-credit note issued by customs - petitioner was entitled to refund by way of re-credit in the DEPB licence and despite repeated requests, the re-credit had not been given - concerned Assistant Commissioner of Customs had to issue a re-credit note - Mumbai Collectorate have adopted an online system whereby the re-credit in the DEPB licence is given online by the customs authority concerned - online system has not been adopted - no reason as to why it should not have been adopted - Assistant Commissioner of Customs has asked the petitioner to meet him this week itself along with the details and if possible the said online system would also be adopted by them inDelhi – direct the respondent to make the system of grant of re-credit at par with the Mumbai system whereby persons seeking such re-credit are provided the facility of obtaining the same online through the customs EDI system
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2010 (5) TMI 499
Search and seizure - Undisclosed income - assessee made investments in LIC policies in the assessment year under appeal in her name and in the name of her husband - According to the award all the LIC policies have been given to the assessee of Rs. 20,00,000/- which were already purchased prior to the arbitration agreement and the award - Held that: - The story set up by assessee that this amount was invested by the brother of the assessee after settlement through arbitration award is clearly afterthought and against all human probabilities. The contention of the assessee thus cannot be accepted. It is also unnatural conduct of the assessee and her brother that despite their father expired in September, 1993, the assessee and her brother suddenly awake up after expiry of around 10 years in 2003 for making reference for arbitration. The conduct of the assessee and her brother speak against themselves. The assessee has thus failed to explain the source of investments in purchase of LIC policies and amount received of Rs. 4,51,000/-. No earning of agricultural income is also proved. The alternate contention of the assessee has also no merit because the assessee has not disclosed any agricultural income in the assessment year under appeal. In the absence of any evidence of earning of agricultural income, the alternate contention of the learned Counsel for the assessee cannot be accepted. - Addition made by AO confirmed.
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2010 (5) TMI 497
Gift u/s 56 - Addition of income - minor children of the assessee received gifts from the blood brother of the assessee’s mother - Held that: - When section 56 of the Act deems a particular receipt as income from other sources, irrespective of the genuineness of the gift, it is difficult to appreciate as to why the learned CIT(A) had given prominence to the availability of copy of passbook and the mode of receipt of the gift etc., though it was neither the case of the assessee nor the case of the Assessing Officer at the assessment stage - AO was justified in bringing to tax the gift in the hands of the assessee by invoking the provisions of section 56 read with section 64 of the I.T. Act.
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2010 (5) TMI 495
Under Section 75, 76 and 77 - Regarding royalty - The agreement, IGTPL shall pay to CPT a royalty equivalent to 33.3 per cent of the gross revenue earned by it every month from the operation of the project - CPT received part of revenue earned by IGTPL as consideration for allowing IGTPL to operate the port whereas IGTPL rendered services taxable under port services and paid the tax due on the total revenue - Thus do not find 1/3rd of that revenue received by CPT liable to tax under Port Services at the hands of the appellant - Letting out the port premises for operation by IGTPL does not amount to rendering of port service - If at all any service tax is paid on this amount, the same would be available to IGTPL as Cenvat credit, which can be used for paying service tax on port services rendered by it-Hence, demand not sustainable. Regarding rent - The rent collected from individuals/agencies for allowing them to construct and operate jetties, we find it to be rent and not value for port services rendered - The persons/individuals operating the berth would be required to pay tax on port services if they render such services - Demand raised on CPT under this head is not sustainable. Regarding boat registration fee - As regards boat registration fee, the assessee admitted the liability and honoured the demand. - Demand and penalty set aside.
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2010 (5) TMI 493
Confiscation and Penalty - Smuggling Proof – Confessional statements in terms of Section 108 of Customs Act, 1962 is substantive evidence, and can be relied upon to pass orders of confiscation and penalty under the provision of the Act Smuggling of Gold – Statement made under section 107 and 108 of Customs Act, 1962 whether genuine and bona fide confessional statement - The same is substantive evidence and can be used against the person & two respondents herein Penalty - Smuggling of Gold- Notices issued to respondents for recording of statements but not availed- Burden of proof on respondents to prove that gold bars are not smuggled section 123 – In such a situation, the rigorous procedure prescribed by section 103 of the Act is completely obviated Appelate Tribunal’s order – Perfunctory orders - Tribunal allowed appeals of respondents here while failing to notice relevant provisions, namely sections 103, 107, 108,& 123 of the Customs Act, 1962& leading judgment of Supreme Court - Vital matters dealing with smuggling cannot be disposed of by perfunctory manner and short order aas Tribunal ventured to do Strictures against CESTAT, Kolkata - Perfunctory manner of exercise of quasi - judicial function by tribunal - CESTAT, Kolkata has been regularly handing down such short, cryptic & perfunctory orders which amount to abdication of judicial duties and functions.
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2010 (5) TMI 491
Waiver of pre-deposit – penalty – Separate show cause notice issued on main issue demanding short paid duty and same is yet to be adjudicated – Adjudication of show cause notice demanding penalty should have been done only after adjudication of main SCN as only when allegation against the appellant that clearance should have been clubbed for determining their eligibility for SSI exemption is upheld, the allegation of clearance of excisable goods without payment of duty and without observing Central Excise formalities could be upheld – Requirement of pre-deposit of penalty waived
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2010 (5) TMI 490
Appeal – limitation – Pre deposit - The appellant had not received the intimation of personal hearing. It is obvious that the appellants had not received the order u/s 35F to make pre-deposit issued by the Commissioner (Appeals). In the circumstances, we dispense with the requirement of pre-deposit under Section 35F of the Act to hear the instant appeals. As the impugned orders had been passed without hearing the appellants, we remand the matter for a fresh decision by the Commissioner (Appeals) following principles of natural justice. Service of order – order passed in March 2004 and appeal filed in June 2009 – order not received by assessee - orders had been dispatched to a wrong address - no evidence that the appellants received the impugned orders - orders had not been served on 2004 but in June 2009 - no delay to be condoned - application for condonation of delay rejected as infructuous.
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2010 (5) TMI 489
Delay in payment of redemption fine – Delay of more than 30 days - petitioner had deposited the demand drafts dated 19-12-2009, Order-in-original dated 26-11-2009, hence the period of thirty days from the date of the order expire on 27-12-2009 - 27th and 28th December 2009 were holidays, TR-6 challans and thereafter deposited the demand draft with the Bank on the very next day - circumstances, cannot stated that there was non-compliance of the order dated 26th November 2009 – Goods directed to be released - Department shall forthwith allow the petitioner to clear the consignment of cut and polished diamonds in terms of the Order-in-Original dated 26th November 2009.
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2010 (5) TMI 487
Business income or Income from House Property – Right from the assessment years 1986-87 to 1992-93, the Department accepted the claim of the assessee to the effect that the rental income was taxable under the head "Profits and gains of business or profession - The order for other years was passed under section 143(1)(a) of the Act treating the income from house property. In the assessment years 1993-94 and 1994-95, the Assessing Officer taxed the income under the head "Income from house property" without looking into the past assessments right from 1986-87. - Held that: - As a general rule, each year's assessment is final only for that year and does not govern later years, because it determines the tax for a particular period. It is, therefore, open to the Revenue/taxing authority to consider the position of the assessee every year for the purpose of determining and computing the liability to pay tax or octroi on that basis in subsequent years. A decision taken by the authorities in the previous year would not estop or operate as res judicata for subsequent year. the Revenue cannot act mechanically without applying its mind to earlier facts and circumstances under which a view was taken by the taxman and the facts and circumstances of the assessment year in question calling to depart from earlier view. Where there is a fundamental aspect permeating through different assessment years allowed by the authorities to sustain, it would not be appropriate to change the view in a subsequent year except on justifiable grounds like change of circumstances or non-consideration of relevant material or statutory provisions, or failure on the part of the assessing or appellate authority to exercise jurisdiction for extraneous reason or small amount of revenue involved or other justifiable ground depending on the facts of each case. The assessee constructed the "Goel Complex" exclusively as part of its commercial activity to earn income by letting it on rent. Accordingly, the income so drawn shall be business income.
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2010 (5) TMI 486
Cenvat credit – refund - no refund of credit shall be allowed if the manufacturer avails of drawback allowed under the Customs and Central Excise Duty Drawback Rule, 1995 or claims rebate of duty under the Central Excise Rules, 2001 - nothing on record to show that the merchant exporter had availed only the customs duty drawback and the appellants have also not produced any document to prove the same - Commissioner (Appeals)’s finding that there is no evidence that the drawback claim was only of customs duty is factually incorrect as from the drawback rate schedule, itself it is clear that the drawback rate prescribed is only of customs duty and there is no excise duty component in the “all industry rate” of Drawback fixed for Aluminium pistons/piston assembly of heading 84.63 – Appeal allowed
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2010 (5) TMI 485
Demand - commission received for marketing of business - adjudicating authority demanded service tax on balance sheet figure prepared on the basis of bill raised, while service tax was applicable on receipt basis on realization of commission income which was not tenable - original adjudicating authority considered only the contention regarding agency and he did not discuss the issue relating to the correctness of the amount worked out by the department - matter remanded to the original adjudicating authority
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2010 (5) TMI 484
Block assessment - undisclosed income – Search - key of the property and the property in was admittedly belonging to the assessee – Assessee could not explain the source of investment – no dispute that investment in the property was also not shown to the Revenue Department prior to the search - assessee explained that investment in property after inheriting cash amount through the Will - assessee in his statement did not explain the execution of Will or inheritance of any amount through the Will - Will is unregistered - authorities justified in making the addition on account of undisclosed income in the block period - investment was also not shown to the Revenue Department prior to the search and the assessee has not established that he had any intention to show the above investment to the Revenue Department r. Admittedly, reference to the DVO is made after the search on 18-10-2005 to make the valuation of the property. No evidence is found in the course of search or requisition or in post search enquiries that the assessee made any further investment in the property in question. The DVO filed his report of calculation on 25-11-2005. Thus, the reference to the DVO and his report of valuation cannot be treated as evidence found during the search or requisition u/s 132A of the IT Act. - orders of the authorities modified, restrict the addition to Rs. 4 lacs as against Rs. 15,20,000 made by the authorities – Appeal partly allowed
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