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2004 (11) TMI 585 - SUPREME COURT
... ... ... ... ..... fter impleading all such parties who have been granted relief by the competent authority. Civil Appeal Nos. 6342-43/2002, 6344-45/2002, 6347-48/2002, 6350-51/2002, 6353-54/2002, 8575/2002 & 4196/2003 19. In view of the decision in Civil Appeal No. 6341of 2002 (UPSRTC vs. State of U.P. & Anr), the appeals are allowed and the impugned judgment dated 23.7.2002 of the High Court is set aside.. Civil Appeal No.5258 of 2003 20. The appellants were granted permits on 11.2.1991 after the High Court had held on 16.3.1990 that the Scheme had lapsed. In view of our finding that the Scheme had not lapsed, the appellants are not entitled for renewal of their permits. The appeal is accordingly dismissed. Civil Appeal No ./2004 S.L.P. (Civil) No.21557/2002 and Civil Appeal No /2004 S.L.P.(Civil) No. 19034/2003 21. Leave granted. In view of the decision in Civil Appeal No. 6341 of 2002, the appeals are allowed and the impugned judgment dated 23.7.2002 of the High Court is set aside.
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2004 (11) TMI 584 - ALLAHABAD HIGH COURT
... ... ... ... ..... declaration form. It is not the case of the department that the driver of the vehicle tried to evade the inspection. o p /o p Facts and circumstances does not prove that there was any attempt to evade the tax, which is condition precedent for the seizure of the goods and for levy of penalty under Section 15-A (1) (o) of the Act. The presumption that the same form could be used for any other transaction is merely on surmises and based on no material. This court in the case of CST vs. M/s Oriental Carbon Limited, reported in 1985 UPTC, 613 held that the penalty under Section 15-A (1) (o) of the Act cannot levied in the absence of an attempt to evade the payment of tax. This view has been upheld by the Apex Court in the case of CST vs. M/s Oriental Carbon Limited, reported in 1997 NTN (Vol. 10) 105. o p /o p 5. For the reasons stated, order of Tribunal is set aside and the penalty is quashed. o p /o p 6. In the result, revision is allowed. Order of Tribunal is quashed. o p /o p
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2004 (11) TMI 583 - GUJARAT HIGH COURT
... ... ... ... ..... ter issuing the said policy under Notification dated 31.3.2002 coming into force with effect from 1.4.2002 considering the interest of business community the Government thought it fit to extend the benefit of DEPB in lieu of draw back for supply made to SEZ or unit in SEZ, therefore, the notification dated 5.6.2002 (Annexure C) was issued. But, it is pertinent to note that it is not stated in the said notification that the same will come into force with effect from any particular day. It was obviously for new financial year starting from 1.4.2003 and, therefore, the corresponding notifications were issued for receipt and acceptance of DEPB with effect from 1.4.2003. In that view of the matter by no stretch of imagination it can be said that the principle of issue estoppel would apply in this case in favour of the present petitioner. 10. In view of the above discussion, this petition fails and is hereby dismissed. Rule discharged. However, there shall be no order as to costs.
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2004 (11) TMI 582 - CESTAT NEW DELHI
... ... ... ... ..... ground of the Revenue is not tenable in view of CCE Ahmedabad Vs. Medico Labs & Another (2004 (64) RLT 641)wherein it has been observed that even after the amendment of Section 35 A(3) of the Act, the Commissioner (Appeals) has power to remand the matter to the adjudicating authority. Therefore, the impugned order of the Commissioner (Appeals) is perfectly valid and the same is upheld. The appeal of the Revenue is dismissed.
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2004 (11) TMI 581 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... on in coming to a conclusion on the strength of decision of Sahney Steel & Press Works Ltd.’s case (supra ) that it has to be and it is in fact a Revenue Receipt in the hands of assessee. 8. In view of aforesaid discussion, we do not subscribe to the view taken by the Tribunal. Instead we prefer to uphold the view taken by Assessing Officer and CIT (Appeals). We are also constrained to observe that Tribunal failed in their duty in properly deciding the appeal. The slip short manner in which the Tribunal disposed of the appeal cannot be countenanced. It is the legal duty of the Tribunal to deal with issue by narrating full facts and then discuss the issue in detail in the context of decided cases. The Tribunal being the last so far as facts are concerned, a higher responsibility is cast by the Legislature to decide the cases by assigning cogent reasons. 9. As a consequence of aforesaid discussion, we answer the question in favour of Revenue and against the assessee.
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2004 (11) TMI 580 - ALLAHABAD HIGH COURT
... ... ... ... ..... rtment, therefore, it would not be appropriate to dismiss such writ petition on the ground of availability of alternative remedy. 9. A Division Bench of this court in the case of R.P. Pandey v. U.P. Power Corpn. Ltd. 2004 (22) LCD 20 has taken the view that while considering as to whether the petition should be dismissed on the ground of alternative remedy at the time of hearing or not one more aspect of the matter which require consideration is as to when the petition was filed what orders have been passed by the court and the period of pendency of the petition before the High Court. 10. We, therefore, do no find justification to relegate the petitioner to the remedy of filing an appeal and we see that no fruitful purpose would be served in extending the proceeding any further. 11. For the reasons stated above, the impugned order dated 29-3-1985 passed by Chief Commissioner (Admn.), U.P. and Commissioner of Income-tax, Lucknow, is set-aside and the writ petition is allowed.
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2004 (11) TMI 579 - ITAT DELHI
... ... ... ... ..... nd circumstances, we hold that the CIT was not justified in setting aside the order on this issue for examining afresh. Accordingly the directions of CIT in regard to re-examination of the receipt of ₹ 30.53 crore are quashed. 19. However, after examining the order of the Assessing Officer and CIT, we find that the Assessing Officer has not applied his mind in regard to foreign expenses claimed in profit & loss account incurred through its Head Office. Though a query was raised, however, neither there was any specific reply filed by assessee, nor any details of foreign expenses were brought to the knowledge of the Assessing Officer. A general reply was filed. Therefore, we are of the considered view that the Assessing Officer has not applied his mind in regard to foreign expenses at all. Therefore, the direction of the CIT in regard to examination of the allowability of foreign expenses is sustained. 20. In the result, the appeal of the assessee is allowed in part.
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2004 (11) TMI 578 - ITAT MUMBAI
Undisclosed income u/s 158BC - Validity of the assessment under Chapter XIV-B based on evidence found during the search - difference of opinion between the Members - Third member Order - Whether the learned Assessing Officer had jurisdiction and justification in including the depreciation allowance in the computation of undisclosed income in the order u/s 158BC of the Income-tax Act? -
Assessee contended that no incriminating material was found during the search conducted on 19th and 20th July 1996, and the documents discovered were already recorded in the books of account - Assessee argued that the depreciation claims for assessment years 1996-97 and 1997-98 were not due at the time of the search, and thus, the disallowance was misconceived
HELD THAT:- Ld. Accountant Member had held that the department had already initiated inquiry in respect of the lease transactions and it appears that the search in the case of assessee was carried out with a view to unearth further evidence/material and on the basis of inquiry and investigation was, otherwise, carried out by the department and the Assessing Officer could not come to the conclusion that the assessee’s claim for depreciation should be rejected and the assessment of undisclosed income on that basis cannot be made u/s 158BC of the Act, as according to him, an order u/s 158BC is not a substitute of assessment under the general provisions of the Act and only an undisclosed income found u/s 132, can be subject-matter of an order u/s 158BC. He concluded in para 93 of his order by observing that the undisclosed income assessed in the impugned order by the learned Assessing Officer does not fall in the domain of an order u/s 158BC for want of nexus with any evidence or material found during the course of the search in the case of the assessee and, therefore, it falls in the domain of the assessments that may be made under the general provisions of the Act. He has devoted a large part of his order to record the gist of the findings given and materials and information relied upon in support of such findings in the impugned order u/s 158BC as well as elaborated arguments of the learned Counsel for the assessee in rebuttal. He, however, did not propose to go into the merits of the case made out against the assessee for the reason that the same do not pertain to the domain of proceedings u/s 158BC and found it sufficient to say, for the purpose of this appeal the undisclosed income assessed in the impugned order is required to be deleted for the reason of having fallen outside the scope and ambit of the provisions of section 158BC.
The Ld. Judicial Member - According to him, upon having discovered the Lease Agreements and other connected documents during the course of search, the Department carried out extensive enquiries relating to the search on the basis of the aforesaid evidence discovered during the course of search, that it was on these inquiries having been conducted that the real intention of the assessee came to the fore; that as such, the undisclosed income assessed was directly relatable to the search carried out in the case of the assessee; that in view of the above appalling circumstances, it cannot be gainsaid that the elaborate inquiry procedure was carried out during the course of search, and was bearing a most direct connection therewith. The Department was, therefore, rightly of the view that the assessee would not have disclosed the impugned income. In these facts, it cannot be said that the addition has been made on the basis of material not relatable to the material found and seized during the course of search, or that the addition is based on no material found as a result of search.
Third Member Order - There is no material on record to suggest that any evidence has been collected in this case by the Revenue during the course of search or as the result of the search, on the basis of which the computation of undisclosed income u/s 158BB or u/s 158BC could be made. The assessment made under section 158BC is thus not within the ambit of Chapter XIV-B of the Act and it is required to be vacated. In these circumstances, as observed by the learned Accountant Member, it is not necessary on this respect, at this stage, to go into the merits of the case made out by the assessee in the impugned order, which would be for the department to make the best use of material so gathered before the search as well as after search proceedings. Insofar as this assessment is concerned, it would be sufficient to say that undisclosed income, the assessed in the impugned order, is required to be deleted for the reasons that there is no such income, which could be said to be based on any evidence found as a result of search and any such other material or information as relatable to such evidence found.
Block period for which the assessment is to be made under Chapter XIV-B means the period comprising previous years relevant to ten assessment years preceding a previous year in which the search was conducted u/s 132 or any requisition was made u/s 132A, and also includes in the previous year in which such search was conducted or requisition made, the period up to the date of the commencement of such search or, as the case may be, the date such requisition. Therefore, the assessment for the block period under chapter XIV-B can be made of the undisclosed income only up to the date of commencement of search or the date of the requisition and not of the period thereafter.
Section 158BA provides for assessment of undisclosed income as result of search for the block period and computation of income and the computation of undisclosed income for the block period to be made as per the provisions of section 158BB and assessment has also to be made u/s 158BC of the block period. The “undisclosed income” for which the assessment is to be made, is defined in section 158B(b) which include money, bullion, jewellery or other valuable article or thing or any income based on any entry in the books of account or other documents or transactions, where such money, bullion, jewellery, valuable articles, thing entry in the books of account or other document or transaction represents wholly or partly income or property which has not been or would not have been disclosed for the purpose of this Act and after the amendment by Finance Act, 2002 w.e.f. 1-7-1995 it includes also the any expenses, deduction or allowance claimed under this Act which is to be found to be false.
Core thing to be seen is the evidence found which will be the basis for making the assessment. If there is no evidence or the evidence has already come on record or has been disclosed by the assessee in the assessment proceedings, then that evidence cannot the said to be have been found as a result of search and in that case, the material or information available with the Assessing Officer and relatable to such evidence could also not help in computing undisclosed income. The search in this case was undertaken on 19th and 20th July. The statement of three officials of the assessee company was recorded and in these statements no incriminating material was there which could be termed as evidence on the basis of which the undisclosed income could be computed. Certain documents in the form of lease agreement etc. were seized at the time search, but entries based on those documents were already found recorded in the books of account of the assessee, in the sense that the lease rent income on the basis of such lease agreements have been recorded in the books of account, as income of the assessee and the depreciation and interest with regard to the very lease transactions have been claimed as a deduction. Lease agreements may be an evidence by itself but there is nothing in those agreements which could establish that assessee had undisclosed income.
On the contrary, disclosure of income has been made by the assessee in the books and return of income pursuant to these very lease agreements. The department has no doubt collected the material subsequent to raid, but that may not be very material and relevant for framing the assessment under Chapter XIV-B of the case because of the mandate given u/s 158BB it has to be the income computed on the basis of evidence found as a result of search and not otherwise. If any material is collected by the Revenue after the search, that may not give authority to department to make the computation of undisclosed income u/s 158BB or assessment u/s 158BC of the Act.
In my opinion, therefore, the assessment made under section 158BC is required to vacated as the same is not authorised by the provisions of Chapter XIV-B of the Act, it being based on the material already collected and appearing on record or on the material collected after the search proceedings was over and it is not made on the basis of the material and evidence found as a result of the search nor on search other material or evidence available with the Assessing Officer and relatable to such evidence found as a result of the search
The Tribunal ruled in favor of the assessee, stating that the assessment u/s 158BC was not justified as it was not based on evidence found during the search. The appeal was allowed, and the assessment order was vacated.
The Hon’ble IIIrd Member, after hearing the same, has passed the order dated 30-9-2004 agreeing with the Hon’ble Accountant Member. Hence, as per the majority opinion, the appeal of the assessee is hereby allowed.
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2004 (11) TMI 577 - CESTAT CHENNAI
... ... ... ... ..... entioned service received for the period covered by the amendment where no action was initiated against them for such recovery during such period. 6. In the instant case, the demands of Service Tax were raised beyond 12-5-2000 in show cause notices dated 13-5-2002 and 14-2-2003. such demands are not affected by the amendments made to Section 65 by Parliament under Section 116 of the Finance Act, 2000 and consequently they are hit by the Apex Court’s ruling in Laghu Udyog Bharati (supra). Furthermore, undisputedly, the demands raised by the Department, in these cases, are for beyond the period of limitation prescribed under Section 73 of the Finance Act, 1994.” 4. Following the view taken in CCE, Chennai v. EID Parry (India) Ltd. Final Order Nos. 930 & 931/2004 2004 (117) ECR 670 (T) 2005 (179) E.L.T. 447 (Tribunal) ibid, I set aside the impugned order and allow these appeals, with consequential relief, if any. (Dictated and pronounced in open Court)
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2004 (11) TMI 576 - SC ORDER
... ... ... ... ..... (172) E.L.T. 289 (S.C.) JT 2004 (8) SC 53, we see no infirmity in the impugned orders. We thus see no reasons to interfere. Accordingly, the Civil Appeals are dismissed.
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2004 (11) TMI 575 - SC ORDER
... ... ... ... ..... we find no merit in these appeals and the cross appeal, which are dismissed. No costs.
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2004 (11) TMI 574 - CESTAT CHENNAI
... ... ... ... ..... where no action was initiated against them for such recovery during such period. 6. In the instant case, the demands of Service Tax were raised beyond 12.5.2000 in show-cause notices dated 13.5.2002 and 14.2.2003. Such demands are not effected by the amendments made to Section 65 by Parliament under Section 116 of the Finance Act, 2000 and consequently they are hit by the Apex Court's ruling in Laghu Udyog Bharati (supra). Furthermore, undisputedly, the demands raised by the Department, in these cases, are far beyond the period of limitation prescribed under Section 73 of the Finance, 1994." 6. Following the precedent, it is held that any demand of service tax on the respondents for the period 16.11.1997 to 1.6.1998 in show-cause notice issued on 27.6.2002 is not sustainable in law and hence there is no question of levy of interest on tax or of imposition of penalty on the assessee. The decision of the Commissioner (Appeals) is affirmed and this appeal is rejected.
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2004 (11) TMI 573 - SC ORDER
... ... ... ... ..... pointing out the correct facts and the factual mistakes committed by the Tribunal. The Tribunal, if satisfied that its judgment proceeds on factually wrong premises, then it may correct the order applying the correct law based on the correct facts, so found by it. Subject to that observation, the appeal is dismissed.
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2004 (11) TMI 572 - KERALA HIGH COURT
... ... ... ... ..... etion by the fall of the hammer or in other customary manner; and, until such announcement ismade, any bidder may retract his bid. There is nothing in the Central Sales Tax Act to indicate that a sale will be inter-State sale if Buyer after purchase of goods indicates to the seller that he wants to transport goods outside the State which is exactly what the petitioners have canvassed before the Forest Department, sales tax authorities and before this Court. It is beyond doubt that the transport of goods if any by the petitioners after purchase in auction sale is a separate and subsequent transaction and such transport cannot be said to be in any way related or connected with the auction sales held in Kerala. Therefore the contentions of the petitioners are unsustainable and Ext.P9 adjudication order of the Deputy Commissioner of Commercial Taxes produced in WPC 3153 of 2004 has to be upheld and I do so. Consequently the WPCs and OPs are devoid of any merit and are dismissed.
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2004 (11) TMI 571 - SUPREME COURT
Whether the order of removal from service by the Appellate Authority valid?
Whether the appellant will be entitled to full pension and gratuity irrespective of his total period of service?
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2004 (11) TMI 570 - KERALA HIGH COURT
... ... ... ... ..... o claim that the Company is bound to assign the property to him by virtue of the agreement for sale. It may be true that he has been in possession of 8.5 cents and the building therein. But his occupation is only permissive and he can continue in occupation till the licence to occupy is revoked. In the result W.A. Nos. 1165/2003 and 1232/2003 are dismissed. Similarly O.P.8845/2001 and W.P.(C). 27302/2003 are also dismissed. W.P. 26523/2003 is allowed. The sale conducted by the Recovery Officer of the Tribunal is set aside.. The revenue authorities shall be at liberty to proceed against the property of the Company under the RR Act and on the strength of the first charge created over the property by virtue of S .26-B of the KGST Act. The auction purchaser shall be entitled to approach the Tribunal for refund of the purchase money deposited by him pursuant to the sale held by the Recovery Officer. The parties are directed to suffer their respective costs in all the above cases.
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2004 (11) TMI 569 - SUPREME COURT
Whether section 73 of the Indian Stamp Act, 1899 as incorporated by Andhra Pradesh Act No. 17 of 1986, by amending the Central Act in its application to the State, as struck down by the High Court of Andhra Pradesh is ultra vires the provisions of the Indian Stamp Act as also of Article 14 of the Constitution?
Whether disclosure of the contents of the documents by the Bank would amount to a breach of confidentiality and would, therefore, be violative of privacy rights of its customers?
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2004 (11) TMI 568 - SC ORDER
... ... ... ... ..... eal No. 4297 of 1999 by us today 2004 (174) E.L.T. 310 (S.C.) , these appeals are allowed.
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2004 (11) TMI 567 - CESTAT NEW DELHI
... ... ... ... ..... the product on which demand has been confirmed in the present case) is not a final product but waste. 2. Since the issue stands settled by the Tribunal’s order which in turn relied upon the decision on CCE, Meerut v. Titavi Sugar Complex reported in 2003 (54) RLT 859 (S.C.) and since it is also brought to the notice of the Bench by the learned Counsel that the Revenue’s appeal against such view in the case of CCE, Meerut v. M/s. Kicha Sugar Co. Ltd. has been dismissed as seem from the order of the Supreme Court dated 20-2-2004, in Civil Appeal No. D 2777628/2003, we dispose of the appeal itself at this stage, by setting aside the impugned order and allowing the appeal.
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2004 (11) TMI 566 - SC ORDER
... ... ... ... ..... (CC. 6249). Leave granted in the special leave petitions. Learned counsel for the parties concede that the question arising for decision in these appeals is covered and decided by the decision of this Court in Muller & Phipps (India) Ltd. v. Collector of Central Excise, Bombay-I, (2004) 4 SCC 787. The appeals be treated as disposed of in terms of the above said decision.
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