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Showing 41 to 60 of 639 Records

• 2010 (6) TMI 865
  
  Issues involved: Interpretation of Section 391(2) of the Companies Act, 1956 regarding the necessity of separate proceedings for amalgamation of wholly owned subsidiaries by the holding company.
  
  Summary:
  The judgment by the Gujarat High Court in the case involved an application by Azure Knowledge Corporation Pvt. Ltd., the transferee company, seeking a ruling that separate proceedings under Section 391(2) of the Companies Act, 1956 were not required for the proposed amalgamation of its wholly owned subsidiaries, Successcraft Solutions Pvt. Ltd. and While Calls Services Pvt. Ltd. The applicant argued that since the capital structure of the transferee company would not change post-amalgamation and the rights of existing shareholders and creditors would remain unaffected, separate proceedings were unnecessary.
  
  The applicant cited previous court orders and decisions to support their argument, emphasizing that holding companies need not undertake separate proceedings for amalgamation of wholly owned subsidiaries. After considering the submissions and relevant legal precedents, the High Court, in line with previous judgments, held that separate proceedings were indeed not required for the transferee company in this case. The application was allowed accordingly, with no costs imposed.

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• 2010 (6) TMI 864
  
  Issues involved:
  The issues involved in the judgment are the validity of an arbitration agreement following the death of the named Arbitrator, the interpretation of Sections 14 and 15 of the Arbitration and Conciliation Act, 1996, and the procedure for reconstitution of the Arbitral Tribunal in case of a vacancy.
  
  Validity of Arbitration Agreement:
  The application under Section 9 of the Arbitration and Conciliation Act, 1996 was moved after the named Arbitrator passed away. The question was whether the arbitration clause became invalid upon the death of the Arbitrator. The Court held that the arbitration agreement remained valid, and the procedure under Section 11(6) of the Act should be followed to fill the vacancy left by the deceased Arbitrator.
  
  Interpretation of Sections 14 and 15:
  Sections 14 and 15 of the Act deal with the termination of an Arbitrator's mandate and the substitution of a new Arbitrator. The Court clarified that the termination of an Arbitrator's mandate does not invalidate the arbitration agreement itself. Section 15(2) requires the appointment of a substitute Arbitrator according to the original agreement or provision applicable at the initial stage.
  
  Reconstitution of Arbitral Tribunal:
  The Act provides for the reconstitution of the Arbitral Tribunal in case of a vacancy, such as the death of a named Arbitrator. Section 11(2) allows parties to request the Chief Justice or his designate to fill in the vacancy if they do not agree on a new appointment. The Court emphasized that the Act contains provisions for reconstitution of the Tribunal even when the named Arbitrator expires.
  
  Conclusion:
  The Court set aside the previous order to enable the parties to argue the matter on its merits. The judgment highlighted the importance of following the correct procedure for reconstitution of the Arbitral Tribunal in case of a vacancy, ensuring the validity of the arbitration agreement even after the death of the named Arbitrator. The decision aligned with previous interpretations by other High Courts and emphasized the judicial power under Section 11 of the Act.

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• 2010 (6) TMI 863
  
  Issues Involved:
  1. Authorization and competence to institute the suit.
  2. Territorial jurisdiction.
  3. Maintainability of the suit.
  4. Cause of action.
  5. Limitation.
  6. Non-joinder of necessary parties.
  7. Estoppel and waiver.
  8. Sale of Defendant's products through homeopathic outlets.
  9. Proprietorship of the trademark "Liv.52".
  10. Infringement of trademark.
  11. Passing off.
  12. Publici juris status of the word "LIV".
  13. Delay, laches, and acquiescence.
  14. Rendition of accounts.
  15. Relief.
  
  Detailed Analysis:
  
  Issue 1: Authorization and Competence
  The Plaintiff proved the authorization of Mr. B.L. Kakroo through a power of attorney (Ex. PW 1/F). The Defendant did not cross-examine on this aspect. The issue was decided in favor of the Plaintiff.
  
  Issue 2: Territorial Jurisdiction
  The Plaintiff demonstrated through an invoice (Ex. P-2) that the Defendant's product was sold in Delhi. The Defendant did not contest this. The issue was decided in favor of the Plaintiff.
  
  Issue 3: Maintainability of the Suit
  The Plaintiff provided evidence of the partnership firm's constitution and trademark registration changes (Ex. PW1/I, PW1/J, PW1/K). The Defendant did not cross-examine on these points. The issue was decided in favor of the Plaintiff.
  
  Issue 4: Cause of Action
  The Plaintiff's averment in para 14 of the plaint established the cause of action due to the Defendant's use of the trademark LIV-T. The Defendant failed to disprove this. The issue was decided in favor of the Plaintiff.
  
  Issue 5: Limitation
  The Plaintiff filed the suit within two months of discovering the Defendant's use of LIV-T and issuing a legal notice. The Defendant did not prove the suit was barred by limitation. The issue was decided in favor of the Plaintiff.
  
  Issue 6: Non-joinder of Necessary Parties
  The Defendant did not show that the suit was bad for non-joinder of necessary parties. The issue was decided in favor of the Plaintiff.
  
  Issue 7: Estoppel and Waiver
  The Defendant led no evidence to show that the suit was barred by estoppel and waiver. The issue was decided in favor of the Plaintiff.
  
  Issue 8: Sale through Homeopathic Outlets
  The Defendant argued that homeopathic drugs must be sold through authorized outlets. However, evidence showed that ayurvedic and homeopathic drugs can be sold side-by-side in licensed pharmacies. The issue was decided against the Defendant.
  
  Issue 9: Proprietorship of the Trademark "Liv.52"
  The Plaintiff produced registration certificates and evidence of long usage and sales. The Defendant did not challenge the validity of the registration. The issue was decided in favor of the Plaintiff.
  
  Issue 10: Infringement of Trademark
  The Plaintiff argued that LIV-T was deceptively similar to Liv.52. The Defendant contended that "LIV" was generic and common to the trade. The court found no visual, phonetic, or structural similarity likely to cause deception or confusion. The issue was decided against the Plaintiff.
  
  Issue 11: Passing Off
  The Plaintiff did not press the relief of passing off. The issue was not decided.
  
  Issue 12: Publici Juris Status of "LIV"
  The Defendant showed that "LIV" is an abbreviation for liver and used by many in the trade. The Plaintiff did not claim monopoly over "LIV". The issue was decided in favor of the Defendant.
  
  Issue 13: Delay, Laches, and Acquiescence
  The Defendant did not prove that the suit was barred by laches. The issue was decided in favor of the Plaintiff.
  
  Issue 14: Rendition of Accounts
  Since there was no deceptive similarity found, the Plaintiff was not entitled to rendition of accounts. The issue was decided against the Plaintiff.
  
  Issue 15: Relief
  The suit was dismissed with costs of Rs. 50,000 to be paid by the Plaintiff to the Defendant within four weeks.

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• 2010 (6) TMI 862
  
  Issues Involved:
  1. Deletion of addition of Rs. 41,51,054/- made by the AO based on seized documents RK-8 u/s 292C of the I.T. Act.
  
  Summary:
  
  Issue 1: Deletion of addition of Rs. 41,51,054/- made by the AO based on seized documents RK-8 u/s 292C of the I.T. Act

  The Revenue appealed against the order of the CIT(A), Central-II, Kolkata, which deleted the addition of Rs. 41,51,054/- made by the AO based on seized documents RK-8 under the provisions of section 292C of the I.T. Act. The assessee, a practicing Chartered Accountant and Director in Richfield Financial Services Ltd., had his premises searched, and documents RK/1 to RK/25 were seized. The AO observed transactions in document RK/8, which the assessee denied knowledge of, leading the AO to add Rs. 41,51,054/- to the assessee's income as undisclosed sources based on the presumption u/s 292C.

  On appeal, the CIT(A) deleted the addition, stating that the presumption u/s 292C is rebuttable and the document did not conclusively prove the transactions belonged to the assessee. The CIT(A) noted that the document was an old computer printout found among 411 pages of seized papers, and the assessee was justified in being unable to explain its contents. The CIT(A) emphasized that the presumption under section 292C does not lead to conclusive evidence and the assessee has the right to rebut the presumption.

  The Revenue argued that the CIT(A) ignored the AO's observations and unjustifiably gave relief to the assessee. The assessee's counsel contended that the document was not found from the residence but brought from the office premises, and the assessee was denied natural justice as his request to examine witnesses was rejected. The counsel also argued that the presumption u/s 292C is not mandatory but rebuttable, and the addition was based on inadequate material.

  The Tribunal, after hearing both sides, upheld the CIT(A)'s order, agreeing that the presumption u/s 292C is rebuttable and the assessee was not in a position to explain the contents of the document after five years. The Tribunal found no infirmity in the CIT(A)'s decision and dismissed the Revenue's appeal.

  In conclusion, the Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s deletion of the addition of Rs. 41,51,054/-.

  THIS ORDER IS PRONOUNCED IN OPEN COURT ON Dt. 25.06.10.

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• 2010 (6) TMI 861
  
  Issues involved: Disallowance of expenditure incurred on replacement of traditional cable line with optical fiber cable.
  
  Revenue's Argument:
  The departmental representative argued that the replacement of traditional cable with optical fiber cable should be considered capital expenditure as it provides enduring benefit to the assessee. The representative highlighted that the optical fiber cable was an upgrade and would be useful if the assessee switched to DTH method of signal transmission. It was emphasized that the replacement was necessary due to damage caused by rival operators, and only traditional cable could be replaced by another traditional cable, not optical fiber cable.
  
  Assessee's Argument:
  The counsel for the assessee contended that the replacement was essential to continue the business of distributing television channels through cable network, especially after damage caused by rival operators. It was argued that laying optical fiber cable did not provide enduring benefit, and the risk of damage by rivals remained. The counsel emphasized that the replacement was necessary for maintaining signal quality, and there was no guarantee of additional benefits from the optical fiber cable.
  
  Judgment:
  The Tribunal noted that the assessee's business involved distributing television channels through cable network and that the replacement from traditional cable to optical fiber cable was necessitated by damage caused by rival operators. The Tribunal agreed with the assessee that the replacement was crucial for maintaining signal quality and continuing the business. It was observed that the optical fiber cable did not provide an enduring benefit beyond signal quality improvement for viewers. The Tribunal concluded that the replacement expenditure was revenue in nature, as it was essential for business continuity and did not result in the acquisition of a new enduring asset. Therefore, the Tribunal confirmed the lower authority's decision to allow the expenditure, dismissing the Revenue's appeal.
  
  Result:
  The appeal of the Revenue was dismissed, and the order was pronounced in the open court on 30.6.2010.

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• 2010 (6) TMI 860
  
  Issues involved: Appeal u/s 15T of SEBI Act against directions issued to the appellant by a specially constituted committee.
  
  Summary:
  The appeal was filed u/s 15T of the Securities and Exchange Board of India Act, 1992, challenging the directions issued to the appellant by a specially constituted committee. The appellant sought to expunge adverse observations made by the committee. After hearing both sides, it was noted that the appellant had revised its business rules and implemented additional procedures to address issues related to beneficial owners in case of deactivation/termination of a depositary participant. It was found that no prejudice had been caused to the beneficial owner of the depositary participant, Rajnarayan Capital Market Services Limited, despite the cancellation of its registration. In the interest of the securities market, it was directed that the adverse observations in the impugned order be expunged. Detailed reasons for expunging the observations were recorded. The appeal was disposed of with no order as to costs.

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• 2010 (6) TMI 859
  
  Issues involved: Impugned order directing petitioner to pay interest on excise duty amount at 13% p.a.
  
  Facts: Petitioners engaged in manufacturing aluminium conductors availed exemption under Notification No. 108/95-C.E. for goods supplied to projects financed by approved international organizations. Received certificate from APTRANSCO for exemption, but later cancelled. Show cause notice issued for duty recovery. Writ petition filed challenging cancellation. Settlement application filed, payments made, and Settlement Commission admitted application.
  
  Submissions by Petitioners: Claimed clearances to APTRANSCO as deemed exports, bona fide belief in JBIL's status, no suppression of facts, and ineligibility for interest under Section 11AB. Argued no provision for interest under Notification No. 108/95-C.E. or Section 11AA. Relied on Supreme Court decisions for support.
  
  Per Contra: Respondent argued petitioners failed to pay duty post-cancellation of certificate, delayed payments, and filed writ petition challenging cancellation. Claimed revenue entitled to interest on deposited duty until refund application received. Dismissed relevance of Supreme Court decisions cited by petitioners.
  
  Conclusion: Settlement Commission acknowledged petitioners' genuine belief in exemption entitlement, granted immunity from penalty and prosecution, but directed interest payment on duty amount. Petitioners contended interest imposition was erroneous due to deemed export benefits and revenue neutrality. High Court quashed Settlement Commission's order to pay interest on excise duty amount at 13% p.a., deeming it erroneous and perverse. Rule made absolute with no costs awarded.

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• 2010 (6) TMI 858
  
  Issues Involved:
  1. Quashing of the Notification No. 1/2008 dated 18-1-2008.
  2. Entitlement to benefits under Notification No. 50/2003-C.E., dated 10-6-2003.
  3. Application of Doctrine of Promissory Estoppel.
  4. Public interest versus individual equity.
  
  Issue-wise Detailed Analysis:
  
  1. Quashing of the Notification No. 1/2008 dated 18-1-2008:
  The petitioner sought to quash the Notification No. 1/2008, dated 18-1-2008, which amended Notification No. 50/2003-C.E., dated 10-6-2003. The amendment excluded certain peripheral activities like packing, repacking, labeling, etc., from the scope of excise duty exemption. The court held that the amending Notification No. 1/2008-C.E., dated 18-1-2008, is prospective and affects only those industrial units that came into operation on or after the date of its issue. The petitioner's unit, established prior to this Notification, is not covered by it and is entitled to the benefits of the earlier Notification dated 10-6-2003.
  
  2. Entitlement to benefits under Notification No. 50/2003-C.E., dated 10-6-2003:
  The petitioner company, engaged in manufacturing 2/3-wheeled motor vehicles, set up its plant in Uttarakhand based on the fiscal incentives promised in Notification No. 50/2003-C.E., dated 10-6-2003. These incentives included 100% excise duty exemption for ten years. The court directed the respondents to allow the petitioner company to avail of the benefits of the exemption Notification No. 50/2003-C.E., dated 10-6-2003, as the petitioner had made a substantial investment of Rs. 150 crores and generated employment based on the promise of these benefits.
  
  3. Application of Doctrine of Promissory Estoppel:
  The petitioner argued that the amending Notification dated 18-1-2008 violated the doctrine of promissory estoppel, as the company had acted on the promise of excise duty exemption for ten years. The court agreed, citing the Supreme Court's judgments in MRF Ltd. v. Assistant Commissioner and State of Punjab v. Nestle India Ltd., which held that the government cannot resile from its promise if it causes unfairness and arbitrariness. The court emphasized that the government's promise had induced the petitioner to make a substantial investment, and withdrawing the benefit before the stipulated period was unfair, arbitrary, and unreasonable.
  
  4. Public interest versus individual equity:
  The respondents argued that the withdrawal of the exemption was in public interest, relying on the Supreme Court's judgment in Kasinka Trading v. UOI, which held that promissory estoppel is not available against the state in fiscal matters. However, the court distinguished this case, noting that the public interest sought to be achieved by the original Notification was to promote industrial development and generate employment in backward states. The court held that the respondents failed to prove that the withdrawal of the exemption was in superior public interest and that the petitioner had a legitimate expectation based on the original Notification.
  
  Conclusion:
  The court allowed the writ petition, quashing the prospective application of Notification No. 1/2008-C.E., dated 18-1-2008, and directed the respondents to allow the petitioner to avail the benefits of the exemption Notification No. 50/2003-C.E., dated 10-6-2003. No order as to costs was made.

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• 2010 (6) TMI 857
  
  Issues involved: Application for extension of stay on recovery of outstanding demand u/s 201(1) and 201(1A) for assessment years 2007-2008, 2008-2009, and 2009-2010.
  
  Extension of Stay on Demand u/s 201(1) and 201(1A):
  The Tribunal had previously granted stay on the recovery of outstanding demand u/s 201(1) subject to a further payment. The assessee sought clarification on whether the stay order included demands u/s 201(1A) as well. The Tribunal, in a subsequent order, extended the stay to the recovery of interest u/s 201(1A) on the same terms as the initial order. The Departmental Representative argued against the extension of stay on demand u/s 201(1A) citing legal provisions and judicial precedents. However, the Tribunal held that the supplementary order was a continuation of the original stay order and decided to extend the stay on demand u/s 201(1) and 201(1A) until a specified date or the disposal of the appeals, whichever is earlier.
  
  Legal Interpretation and Decision:
  The Tribunal emphasized that the supplementary order was not an independent one but an extension of the initial stay order. It declined to delve into the merits of the Revenue's arguments regarding the competency of the Tribunal to grant stay on demand u/s 201(1A) not pending in appeal. The Tribunal clarified that the Revenue could have challenged the order through appropriate legal channels but as it stood unmodified, the stay extension was deemed valid. The Tribunal justified the extension of stay on both demands u/s 201(1) and 201(1A) based on compliance with the original stay order terms and the pending appeals. Consequently, the Tribunal ordered the extension of stay on both demands until a specified date or appeal disposal.
  
  This judgment highlights the Tribunal's decision to extend the stay on recovery of demands u/s 201(1) and 201(1A) based on the circumstances and legal considerations presented during the proceedings.

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• 2010 (6) TMI 856
  
  Issues Involved:
  1. Challenge to SEBI circular dated 10th October 2003 and Clauses 2 and 3 of Part 2 of the SEBI (Interest Liability Regularization) Scheme, 2004 (SILRS).
  2. Petitioners' request for the benefit of reduced fee rates under Clause (bb) of Schedule III of SILRS.
  3. SEBI's refusal to accept turnover data submitted by the Petitioners before the regularization period.
  4. SEBI's calculation of fee liability based on gross turnover data.
  5. SEBI's refusal to revise "Fee Liability Statements" to account for payments already made by Petitioners.
  
  Detailed Analysis:
  
  1. Challenge to SEBI Circular and Clauses of SILRS:
  The Petitioners, an association of Delhi Stock Brokers, challenged a SEBI circular dated 10th October 2003 and Clauses 2 and 3 of Part 2 of SILRS 2004. They argued that the circular and clauses were unfair as they restrained SEBI from considering the turnover data with a breakup provided by the Petitioners until the end of the regularization period on 15th November 2004.
  
  2. Petitioners' Request for Reduced Fee Rates:
  The Petitioners sought the benefit of reduced fee rates under Clause (bb) of Schedule III of SILRS, which provides concessional rates for specific transactions like jobbing, government securities, and certain other transactions. They argued that the SEBI should compute their fee liability based on the concessional rates rather than the highest rates.
  
  3. SEBI's Refusal to Accept Turnover Data:
  The Petitioners submitted that the turnover data, duly certified by their auditors, was not accepted by SEBI due to the failure of the Delhi Stock Exchange Association Limited (DSEAL) to submit the data in the correct format. The Petitioners contended that this failure was not deliberate and that SEBI should have accepted the revised data submitted before the regularization period ended.
  
  4. SEBI's Calculation of Fee Liability:
  SEBI calculated the fee liability based on the gross turnover data, arguing that the Petitioners failed to submit the required data by the final deadline of 31st October 2003. SEBI maintained that the fee liability was correctly calculated as per the regulations and that no further data revisions were permissible under SILRS 2004.
  
  5. SEBI's Refusal to Revise "Fee Liability Statements":
  The Petitioners requested SEBI to revise the "Fee Liability Statements" to account for the payments already made by them. They argued that SEBI should give them credit for these payments in the revised statements.
  
  Judgment:
  The Court found that SEBI's refusal to accept the revised turnover data submitted by the Petitioners before the regularization period ended was unreasonable. The Court noted that the failure to submit the data in the correct format was due to the lapses of DSEAL and not the individual brokers. The Court directed SEBI to accept the turnover data certified by M/s. Doogar & Associates and compute the fee liability accordingly, giving the Petitioners the benefit of Clause (bb) of Schedule III of SILRS 2004.
  
  The Court also directed SEBI to revise the "Fee Liability Statements" to account for the payments already made by the Petitioners. If any amount was owing to the Petitioners as a result of the revision, it could be adjusted against their future dues. The Court clarified that this was a one-time measure and not to be treated as a precedent.
  
  The writ petition was disposed of with the above directions, and no orders as to costs were made.

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• 2010 (6) TMI 855
  
  Issues involved: Impugning a notice u/s 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2003 (SARFAESI Act).
  
  Summary:
  The petitioner challenged a notice issued u/s 13(2) of the SARFAESI Act, seeking a declaration that the respondent had no right to claim any sum without issuing a prior notice. The petitioner argued for a fair opportunity to submit a reasonable offer before any assignment of debt. However, the court held that the petition cannot be entertained as it challenges a notice u/s 13(2) of the SARFAESI Act. The court emphasized that the petitioners can avail remedies u/s 13(3) and 13(3A) of the Act and raise all pleas during the process. The court dismissed the writ petition for lack of alternate and efficacious remedies under the Act, without any order as to costs.

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• 2010 (6) TMI 854
  
  Issues Involved: Appeal against confirmation of demand under Section 11AB and penalty under Section 11AC of the Central Excise Act, 1944 for clandestine removal of ingots.
  
  Issue 1: Clandestine Removal of Ingots
  
  The assessees appealed against the confirmation of demand and penalty for the clandestine removal of 818 MTs of ingots. The charge was based on entries in a notebook seized on 5.7.2006, described as a Note Book of Material Requirement. The assessees argued that the author, Shri Y.Yuvaraj, the stores-in-charge, maintained entries related to raw material requirement. They requested examination of the handwriting on the page showing ingots stock, denying that it was written by Yuvaraj. The assessees challenged the seizure of semi-finished ingots, claiming they were rejects unfit for marketing and thus should not have been entered into the RG.1 Register but accounted for in Form IV Raw Material Register.
  
  Issue 2: Expert Opinion on Handwriting
  
  The Vice-President noted that crucial evidence would be a report by a handwriting expert to determine if the entries in the ingots stock notebook were made by Yuvaraj, as asserted by the Revenue and contested by the assessees. In the interest of justice, it was deemed necessary to obtain this vital information before confirming the demand. Consequently, the impugned order was set aside, and the case was remanded to the adjudicating authority for a fresh decision post obtaining the expert opinion. The authority was directed to provide a reasonable opportunity for the assessees to present their defense before passing fresh orders.
  
  In conclusion, the appeal was allowed by way of remand, emphasizing the importance of expert opinion on the handwriting in the notebook to determine the validity of the charges related to clandestine removal of ingots.

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• 2010 (6) TMI 853
  
  Issues Involved:
  1. Penalty u/s 271(1)(c) of the Income Tax Act for assessment years 1989-90 and 1990-91.
  2. Business connection and Permanent Establishment (PE) in India.
  3. Furnishing of inaccurate particulars of income.
  
  Summary:
  
  1. Penalty u/s 271(1)(c) of the Income Tax Act:
  The appeals were filed by the assessee against the order of the CIT(Appeals)-XXXI, Mumbai, which confirmed the penalty levied by the AO u/s 271(1)(c) of the Act for assessment years 1989-90 and 1990-91. The AO levied the penalty on the grounds that the appellant had a business connection in India and thus was liable to be taxed in India. The CIT(Appeals) upheld this penalty, relying on the Tribunal's decision on the merits.
  
  2. Business Connection and Permanent Establishment (PE) in India:
  The appellant, a foreign company, argued that no income accrued or arose in India and hence was not chargeable to tax. For the assessment year 1990-91, it was contended that the appellant did not have a PE in India under the DTAA between India and the Netherlands. The AO, however, taxed the income on the premise of a business connection in India and held AFL to be a PE of the appellant under the DTAA. The CIT(Appeals) initially held that there was no business connection or PE in India, but the Tribunal later held that the appellant had a business connection in India and that AFL was a PE of the appellant.
  
  3. Furnishing of Inaccurate Particulars of Income:
  The appellant disclosed all particulars in the return of income, and the AO did not point out any undisclosed material particulars. The Tribunal noted that the issue was debatable and referred to a Special Bench for adjudication, indicating a bona fide claim by the appellant. The Tribunal cited the Supreme Court's decision in CIT vs. Reliance Petroproducts Pvt. Ltd., which held that making an incorrect claim in law does not amount to furnishing inaccurate particulars. The Tribunal concluded that no penalty could be levied as there was no concealment or furnishing of inaccurate particulars of income.
  
  Conclusion:
  The Tribunal allowed the appeals of the assessee, deleting the penalties for both assessment years, stating that merely making a bona fide claim, which the Revenue rejected on a different legal interpretation, does not attract penalty u/s 271(1)(c). The order was pronounced on June 25, 2010.

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• 2010 (6) TMI 852
  
  Issues involved: Calculation of duty liability by the adjudicating authority.
  
  The Appellate Tribunal CESTAT, New Delhi, in the case, found an error in the calculation of duty liability by the adjudicating authority. The Tribunal noted that there was no dispute regarding this error, as confirmed by a letter from the Commissioner. Therefore, the Tribunal decided to set aside the impugned order related to the quantum of duty and remand the matter to the adjudicating authority to determine the correct liability of the appellants concerning the duty amount. The appeals were allowed on this limited ground, and the impugned order fixing the total liability was set aside. The matters were remanded to ascertain the correct quantum of duty liability, including any penalty and interest. The liability to pay duty would encompass penalty and interest, if applicable, and the appeals were accordingly disposed of.

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• 2010 (6) TMI 851
  
  Issues involved: Cross appeals filed by the assessee and the revenue against the order dated 30.6.2008 passed by the learned CIT(A) in the matter of an assessment made u/s 143(3)/147 of the Income-tax Act, 1961 for the Assessment Year 2002-03.
  
  Assessee's Appeal (ITA No.2822/Del/2008):
  
  Issue 1 - Validity of Notice u/s 148:
  The AO issued a notice u/s 148 based on information received regarding interest subsidy claimed by the assessee. The assessee contended that the notice was invalid as it did not align with the reasons recorded u/s 148. The CIT(A) upheld the validity of the notice, stating that the inadvertent mention of the wrong section in the reasons did not render the notice invalid. The Tribunal noted that the notice issued by the AO in Jammu, who lacked jurisdiction over the assessee, was without jurisdiction. Consequently, the assessment made by the AO in Delhi was deemed void ab initio and without jurisdiction. The Tribunal canceled the assessment, allowing the AO to initiate fresh proceedings u/s 147.
  
  Issue 2 - Other Grounds Raised by Assessee:
  Since the assessment was deemed illegal and void, the Tribunal did not adjudicate on the other grounds raised by the assessee in its appeal.
  
  Revenue's Appeal (ITA No.2861/Del/2008):
  The revenue's appeal regarding certain additions deleted by the CIT(A) was considered redundant in light of the Tribunal's decision on the assessee's appeal. As the assessment was found to be without jurisdiction, the revenue's appeal was dismissed as infructuous.
  
  The Tribunal, comprising B. C. Meena (Accountant Member) and C. L. Sethi (Judicial Member), allowed the assessee's appeal, canceling the assessment due to lack of jurisdiction. The revenue's appeal was dismissed as infructuous. The decision was pronounced on 30th 2010.

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• 2010 (6) TMI 850
  
  Issues:
  Challenging order of Joint Secretary to the Government of India dismissing revision applications, imposition of penalty under Section 116 of the Customs Act on cargo agents for short landing, appeal before Commissioner of Customs (Appeals), invoking revisional jurisdiction of the Government of India, breach of principles of natural justice.
  
  Analysis:
  The judgment involves two petitions challenging an order passed by the Joint Secretary to the Government of India, where revision applications filed by the petitioners were dismissed, confirming the orders of the lower appellate authority and adjudicating authority. The petitions concern the imposition of penalties under Section 116 of the Customs Act on cargo agents for short landing. The facts of both petitions are similar, leading to a common judgment. The petitioners, as Ship and Forwarding Agents, were involved in a case where short landing of cargo was reported, leading to the imposition of penalties. The petitioners were not served with show cause notices, and the penalties were erroneously confirmed against them without examining their locus to challenge the orders of adjudication. The liability for short landing was incorrectly imposed on the petitioners, who were cargo agents, contrary to guidelines that assign such liability to carriers. The judgment highlights the breach of natural justice in holding the petitioners liable for penalties without proper service of notices or examination of their role in the matter.
  
  The petitioners, dissatisfied with the orders, appealed before the Commissioner of Customs (Appeals) and invoked revisional jurisdiction of the Government of India under Section 129DD of the Customs Act, without success. The petitioners then approached the High Court under Article 226 of the Constitution of India, contending that the impugned orders breached natural justice and wrongly imposed penalties on them as cargo agents. The High Court, after considering the submissions, found that the petitioners were not served with show cause notices and were not called upon to explain the short landings. The appellate and revisional authorities failed to examine whether the petitioners had the standing to challenge the adjudication orders, leading to erroneous confirmation of liability against them. The judgment quashed and set aside the impugned orders against the petitioners, holding them not liable for penalties imposed under Section 116 of the Customs Act.
  
  In conclusion, the High Court allowed both petitions, making the rule absolute in favor of the petitioners and setting aside the impugned orders. No costs were awarded in the matter. The judgment emphasizes the importance of upholding principles of natural justice and correctly attributing liabilities in customs matters, ensuring fair treatment of parties involved.

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• 2010 (6) TMI 849
  
  Issues involved: Appeal against deletion of addition under 'Fees for included services' u/s Article 12 of India-US Treaty for asst. year 2003-04.
  
  Summary:
  The Revenue appealed against the deletion of an addition of Rs. 5,12,12,759 under 'Fees for included services' u/s Article 12 of the India-US Treaty. The AO had treated revenue earned by Indian Branches of McKinsey & Co. as fees for included services and taxed it at 15%. However, the CIT(A) directed the AO to delete the addition based on previous ITAT decisions in the appellant's own case for various assessment years.
  
  The CIT(A) relied on previous ITAT decisions in the appellant's own case for different assessment years and directed the AO to delete the addition. The ITAT, following the decision of the Single Member Bench in the case of McKinsey & Co. Inc. (Switzerland) Vs. ADIT, held that the payments in question cannot be treated as fees for included services under Article 12 of the India-US Treaty. The ITAT upheld the CIT(A)'s order, dismissing the Revenue's appeal.
  
  The ITAT found no infirmity in the CIT(A)'s order, which was based on previous ITAT decisions in the appellant's own case. The Revenue's appeal was dismissed, upholding the CIT(A)'s decision to delete the addition under 'Fees for included services' u/s Article 12 of the India-US Treaty for the relevant assessment year.

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• 2010 (6) TMI 848
  
  The Bombay High Court disposed of the appeal under Section 260A in agreement with both the Revenue and the assessee, referencing a judgment in Commissioner of Income Tax v. Kalpataru Colours and Chemicals. No costs were awarded.

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• 2010 (6) TMI 847
  
  Issues involved:
  The judgment involves issues related to deductions claimed under section 80 HHC and 80 IB of the IT Act for scrap sales, service charges, and packing and forwarding income.
  
  Deduction u/s 80 HHC and 80 IB on Scrap Sales:
  In the assessment years 2002-03 and 2004-05, the assessee claimed deductions under sections 80 HHC and 80 IB of the IT Act for scrap sales. The contention was that the scrap was generated in the manufacturing process and should be considered directly derived from the business of manufacturing furnaces. The CIT (A) denied the deductions, stating that the scrap was not necessary bye-product of the manufacturing process. The Tribunal decided to restore the issue to the Assessing Officer (AO) for reconsideration based on previous rulings and directions, emphasizing the need for a thorough review in light of relevant legal precedents.
  
  Deduction u/s 80 HHC and 80 IB on Service Charges:
  For the assessment year 2004-05, the assessee claimed deductions under sections 80 HHC and 80 IB of the IT Act on service charges derived from the manufacturing of electric furnaces. The CIT (A) rejected the claim, stating that the service charges were not directly derived from the main export activity. The Tribunal upheld the CIT (A)'s decision based on previous rulings, dismissing the assessee's appeal on this issue.
  
  Deduction u/s 80 HHC and 80 IB on Packing and Forwarding Income:
  The departmental appeals challenged the exclusion of packing and forwarding income from the profits of business for the purpose of deductions under sections 80 HHC and 80 IB of the IT Act. The CIT (A) allowed the claim, considering the income as an integral part of the business. However, the Tribunal found that the CIT (A) did not provide specific findings on the issue and passed a non-speaking order. The Tribunal remanded the issue back to the CIT (A) for a reevaluation, emphasizing the need for a detailed discussion of the evidence on record before making a decision.
  
  In conclusion, the Tribunal partially allowed the appeals of the assessee and allowed the departmental appeals for statistical purposes, emphasizing the importance of thorough consideration and specific findings in tax-related matters.

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• 2010 (6) TMI 846
  
  Issues involved: The judgment involves two main issues - one regarding the deletion of disallowance of garden expenses and the other concerning the deletion of filtration expenses.
  
  Garden expenses: The assessee incurred expenses for maintaining the garden at the factory premises, ranging from &8377; 500 to &8377; 5,000 each. The AO treated this expenditure as capital in nature, but the ld. CIT(A) deleted the addition based on previous decisions. The AR argued that the expenditure was revenue expenditure for maintaining the factory premises, citing relevant court decisions. The Tribunal agreed, stating that maintaining the garden is essential for creating a healthy environment for workers, and such expenditure is incurred wholly and exclusively for business purposes. Therefore, the ground of Revenue was rejected.
  
  Filtration expenses: The AO disallowed a claim of &8377; 5,57,335 made by the assessee for filtration expenses, considering it as capital expenditure. The ld. CIT(A) allowed the claim, stating that the consumables used for filtration were day-to-day items necessary for maintaining the plant's standard for production. The Tribunal upheld the ld. CIT(A)'s decision, noting that the expenses did not create any capital asset or enduring benefit. The expenditure was categorized as current repairs, and the appeal filed by the Revenue was dismissed.
  
  Final Decision: The Tribunal dismissed the appeal filed by the Revenue, upholding the decisions of the ld. CIT(A) regarding both the garden and filtration expenses.

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