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Case Laws
Showing 401 to 420 of 871 Records
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2012 (5) TMI 475
Demand of Duty, Interest and Penalty on the basis of the value determined in terms of the provisions of Rule 10A - the appellant company is engaged in building of bus bodies - the Department was of the view that assessee were building bus bodies on job work basis – Held that:- This matter is covered against the appellants by the judgement of the Tribunal in the case of Audi Automobiles vs.C.C.E., Indore [2009 (5) TMI 426 (Tri)] Wherein it is decided that body fabricating and mounting on the chassis which were supplied to the said firms by the manufacturer of chassis is the activity for the purpose of valuation squarely fall under Rule 10A and not under Rule 6 - penalty imposed on the appellant company is not justified as the matter relates to interpretation of valuation Rules and it cannot be said that there was intention on the part of the appellant to evade duty - the duty demand along with interest is upheld and demand of penalty is set aside.
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2012 (5) TMI 474
Penalty – petitioners shifted around 70,000 plastic crates to the plot of M/s. Navneet Publications on emergency basis - officers of the Central Excise Department visited the said neighbouring premises and later on, the petitioners’ premises and seized the said 70,000 plastic crates shifted thereto - Tribunal has found that the action of the petitioners in removing the goods from the place of manufacture and storing them in the adjacent premises, was not suggestive of intention to evade duty - Held that:- penalty under Rule 209A, any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or the rules, shall be liable to a penalty, merely because confiscation under Rule 173Q is set aside as the ingredients of Section 11AC of the Act and Rules 57-I(4) and 57U(6) of the Rules are not satisfied does not mean that penalty under Section 209A cannot be levied if upon the evidence on record a case is made out for levy of such penalty, petition partly succeeds and is, accordingly, allowed, penalty of Rs. 2 lakhs on the petitioner No. 2 under Rule 209A of the Rules is sustained
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2012 (5) TMI 473
Duty demand - clearances of cigarettes alleged to have been made without payment of duty - penalty - applications for waiver of the requirement of pre-deposit of duty demand and penalty - allegation against the GTC is that while MPTL, Durg is a dummy company floated by GTC, fully controlled by them and that actual operations right from the stage of procurement of raw materials, manufacture of cigarettes and transportation and marketing were being carried out and arranged by GTC, during the period from 12-10-90 to 31-3-92 clandestine clearances of cigarettes without payment of duty were made from MPTL’s factory and thereby contravening various provisions of Central Excise Rules, 1944 and that the duty involved on these clandestine clearances – Held that:- after 15 years from the date of issue of show cause notice, the appellants claim that all the relied upon documents have not been supplied/allowed to be inspected - Even if there was stay on adjudication proceedings by the order of Hon’ble Madhya Pradesh High Court, but still the relied upon documents could have been supplied as there was no stay on the same, matter is still un-adjudicated and the impugned order bearing 26-5-2010 has been issued but it is signed by the Commissioner who had retired in 2008. The order passed after 15 years is an ex parte and non-speaking order supposed to have been issued by an officer who had retired long time back, matter involving huge revenue being now 15 years old, we consider it appropriate to direct the Chairman of Central Board of Excise & Customs to monitor the de novo adjudication, appeals and the stay applications are disposed of
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2012 (5) TMI 472
Classification - classification of other bathroom accessories of brass, namely soap dishes, toilet paper holder, tumbler holder, towel ring, towel rack, towel rack with single rail, coat hook, robe hook and for glass shelf - respondent were paying Central Excise duty on these items by classifying the same under sub-heading 7419.99 of the Central Excise Tariff on their transaction value determined under Section 4 of the Central Excise Act. The Department was of the view that all these items are sanitary ware and parts thereof made of brass and hence the same are classifiable under sub-heading 7418.90 of the Tariff – Held that:- other than soap dishes and toilet paper holder of brass, whose classification has been upheld by the Commissioner (Appeals) under sub-heading 7418.90, none of the other items namely towel ring/towel racks, robe hook, coat hook, tumbler holder and glass shelf are classifiable under heading 7418.90, the duty has been correctly paid in respect of these items on the value determined under Section 4, no infirmity in the impugned order, Revenue’s appeal dismissed
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2012 (5) TMI 471
Refund – unjust enrichment - respondent is engaged in the providing Business Auxiliary Service and paying service tax thereon. The respondent claimed refund of service tax amounting to Rs.6,52,080/- paid by them for the period from 1.12.2007 to 31.8.2008 on the ground that the services rendered by them amounts to export of services in terms of Rule 3(2) of the Export of Service Rules,2005. The refund claim was rejected on the doctrine of unjust enrichment – Held that:- in the case of Sparkler Ceramics Pvt. Ltd (2011 - TMI - 203997 - CESTAT, MUMBAI - Central Excise) unjust enrichment will not be applicable to this case as it involves export of goods. Commissioner (Appeals) order is upheld and Revenue's appeal is dismissed.
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2012 (5) TMI 470
Laying of cables under or alongside roads - Erection, Commissioning or Installation - appellant claims prima facie case on the strength of both Board's Circular No. 123/5/2010-TRU dated 24.5.2010 it was clarified inter alia that laying of cables under or alongside roads did not constitute any taxable service under Section 65(105) of the Finance Act, 1994 - Held that:- in the case of Rajeev Electrical Works (2012 (5) TMI 470 - PUNJAB & HARYANA HIGH COURT - Service Tax) had held that laying of pipes in wall/roof/floor for crossing of wires, fixing junction box, MS box, wooden box, fixing cable trays to lay cables, digging earth to lay the cables and digging earth pits for earthing of equipments did not amount to installation of plant, commissioning of machinery/ equipments etc. appellant need not be asked to make any pre-deposit. order is set aside and the appeal is allowed by way of remand
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2012 (5) TMI 469
Power to remand - respondent challenged the order of the ld. Commissioner (Appeals) found that the lower adjudicating authority has not appreciated the facts and circumstances of the case and remitted the case that the lower adjudicating authority to decide as afresh - department filed appeal against the order-in-appeal on the ground that the Commissioner has no power to remit the case to lower adjudicating authority – Held that:- after 11.5.2001 in Central Excise Act, 1944, power of remand is not given to Commissioner (Appeals), Commissioner is not empowered to remand the matter, he has to decide the matter by himself. Therefore the order of ld. Commissioner (Appeals) remanding the case to the lower authority, is not sustainable, Appeal disposed of by way of remand
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2012 (5) TMI 468
Waiver of pre-deposit of Service tax - ‘Banking and other financial services.’ - there is no evidence on record to show that the amounts collected were in connection with the loans granted by the assessees to the individuals, pre-deposit waived
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2012 (5) TMI 467
The Appellate Tribunal CESTAT, New Delhi heard a stay petition regarding a penalty of Rs. 43,600 imposed under Section 77(1)(c) of Finance Act, 1994 for delay in submitting information. The tribunal found that the penalty may not be justified as there was no evidence of evasion of service tax. The tribunal granted waiver of pre-deposit of penalty and stay of recovery pending appeal.
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2012 (5) TMI 466
Power of Tribunal to admit Additional Ground - assessee contesting jurisdiction assumed by AO u/s 153A - assessee contended that the ground has been taken in the memorandum of appeal, therefore, it is not an additional ground for which leave is required from the Tribunal, whereas Revenue submitted that ground does not arise out of the order of lower authorities as this question was never taken up before any one of them - Held that:- A person can be “aggrieved” only if a ground had been raised and it is decided against him. S. 253(1) bars a ground which was not raised and not decided by the CIT(A) because there can be no grievance in respect of a matter which is not raised at all. Therefore, ground taken in the memorandum of appeal cannot be a ground validly taken as a grievance from the order of lower authorities.
However, on question that whether, such a ground can be raised for the first time before the Tribunal, it is held that Tribunal is not confined only to issues arising out of the appeal before the CIT(A) but has the discretion to allow a new ground to be raised. If a pure question of law arises for which facts are on record of the authorities below, the question should be allowed to be raised if it is necessary to assess the correct tax liability. The submission that the ground could not be raised earlier as the assessee did not have the services of an advocate at its command is reasonable and bona-fide - Additional ground admitted.
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2012 (5) TMI 465
Charitable Institution - alleged violation of Section 13(1)(c)(ii) read with Section 13(3) on belief that society was for the private benefit of the members - Tribunal without referring to factual matrix held that assessee is charitable institution - Held that:- Order of the tribunal in the AY 2005-06 is devoid of reasoning and does not refer to factual matrix and details which have to be examined and considered while deciding the question whether or not Section 13(1)(c)(ii) read with Section 13(3) is violated. The facts, figures mentioned in the income expenditure account and the activities undertaken etc. have not been mentioned or specifically examined. What was and whether any benefit or advantage was enjoyed by the person mentioned in Section 13(3) has not been adverted to and considered. General observations have been made. The order of the tribunal is cryptic and cannot be categorized as a reasoned and speaking order which is mandated and required to be passed by the final fact finding authority - Matter remitted back to Tribunal to examine and record finding on facts relevant and which are to be examined - Partly decided in favor of Revenue.
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2012 (5) TMI 464
Admissibility of deduction u/s 80HHC when deduction u/s 80IA has been made - Held that:- If deduction u/s 80IA has been made, deduction u/s 80HHC was not admissible in view of Section 80IB (13) r.w.s. 80IA (9) of the Act. See CIT (Central), Ludhiana vs. M/s. Davinder Exports(2011 (4) TMI 96 (HC)) - Decided in favour of the revenue.
Whether “Profit” or the whole amount of DEPB is to be excluded for computation of the deduction u/s 80HHC - Section 28(iiid) - Held that:- Apex court held in case of Topman exports (2012 (2) TMI 100 (SC)) that not the entire amount but the sale value less the face value of the DEPB will represent profit on transfer of DEPB. Difference between the sale value and the face value of the DEPB will fall under clause (iiid) of Section 28. Therefore, matter is remanded back to the AO to pass fresh order in accordance with aforesaid judgement.
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2012 (5) TMI 463
Power of Settlement Commission to reopen its concluded proceedings by recourse to Section 154 to withdraw the partial/full waiver of interest u/s 234B and 234C - Held that:- Supreme Court in case Brij Lal and others Vs. CIT (2010 (10) TMI 8 (SC)) held that after the Settlement Commission allows the application for settlement to be proceeded with, there will be no further charge of interest u/s 234B and that invocation of Section 154 of the Act cannot be justified. Therefore, order dated 31.03.2003 and the subsequent proceedings raising demand of interest are quashed - Decided in favor of assessee.
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2012 (5) TMI 462
Confirmation of addition of Rs.2,62,184/- paid in cash out of total disallowance of Rs.5,55,284/- made for purchase of car – assessee purchased car for Rs.5.55 lakhs. Loan of Rs.2.93 lakhs was arranged from Standard Chartered Bank and the remaining amount of Rs.2.62 was claimed to have been contributed out of own funds - Held that:- The explanation given for the cash payment is devoid of any merit as the capital account of the assessee for the year in question does not show the withdrawal for the purchase of car - car is not appearing on the asset side of the balance sheet of the assessee – against assessee.
Disallowance of set off of brought forward business loss - AO rejected the set off as it was not claimed in the original return of income and could not be allowed in the return filed in response to notice u/s.153A – Held that:- Once loss is determined in the return file u/s.139(3), the assessee becomes eligible for set off against the income of the subsequent years irrespective of the fact whether the returns of such later years are filed u/s.139(1) or not - Sec. 80 read with sec. 139(3) requires the submission of return for loss before the due date - the return filed in response to notice u/s.153A is treated as the return filed u/s.139 – in favour of assessee.
Disallowance of set off of brought forward business loss for assessment year 2001-02 – Held that:- Brought forward business loss has to be mandatorily set off against the income of the subsequent year, whether or not it is below the taxable limit - the necessary details about the income for assessment years 2003-04 to 2006-07 are not available on record the impugned order is set aside and restore the matter to the file of AO for deciding afresh.
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2012 (5) TMI 461
Addition of undisclosed income - assessee-firm is a builder and during this year, a survey action under section 133A of the Act was carried out on March 9, 2005 - Assessing Officer held that there is clear-cut shortage of income declared and finally the returned income and the assessee has not filed any explanation in this regard. The Assessing Officer worked out the regular income should have been 8 per cent - It was submitted by him that there is no dispute regarding the turnover declared by the assessee in the regular books. Regarding this aspect that amount declared in the course of survey was not added in the income to the extent of Rs. 20,76,537, it was submitted that this allegation is not correct and he submitted that audited accounts are available - the voluntarily disclosed income is only Rs. 1,75,00,000 less by Rs. 5 lakhs to the disclosed amount of Rs. 1,80,00,000 - Held that: Profit before interest on partners' capital and partners' salary is shown by the assessee at Rs. 184.06 lakhs and the net income arrived at was Rs. 175.24 lakhs after allowing deduction of Rs. 1,81,369 on account of interest on partners capital and Rs. 7,00,000 on account of partners' salary - Decided in favor of the assessee Addition u/s 154 made by the CIT(A) - In the present case, this is not the case of the Revenue that the partners of the assessee-firm are fictitious because in the statement of the partner, additional income of Rs. 180 lakhs was declared during the course of survey and it was duly shown in the return of income and the addition was made by the Assessing Officer on the basis of that statement only, which although is deleted, the fact remains that it is not a case of the Revenue that the partners of the assesseer-firm are fictitious - apex court in the case of CIT v. Orissa Corporation P. Ltd. [1986] 159 ITR 78 (SC) - Held that: this addition made by the Assessing Officer under section 68 is not sustainable in the light of this decision of the hon'ble Supreme Court and in the light of the facts of the case, since confirmations along with addresses and permanent account numbers were made available by the assessee to the Assessing Officer and no effort was made by the Assessing Officer to pursue the loan creditors - Decided in favor of the assessee Regarding validity of assessment proceedings - this is the claim of the assessee that this notice said to have been issued by the Assessing Officer on June 20, 2006 was never served on the assessee but as per copy of the notice brought on record, there is some signature of some person although no name or date is appearing and hence, it is not coming out whether the same was served on the assessee or not - Appeals are allowed
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2012 (5) TMI 460
Disallowance of Rs.62,19,593 on account of non receipt of confirmation of unsecured loans - Addition u/s 68 - During the course of assessment proceedings, the Assessing Officer noticed that unsecured loans as at the end of relevant previous years stood at Rs.2,52,05,395 whereas, as at the beginning of the year, unsecured loans only amounted to Rs.1,89,85,802 - in the present case, no specific show cause notice with respect to enhancement was not given by the CIT(A) - assessee has now filed additional evidences by way of confirmations and other supporting material to demonstrate bonafides of the creditors - Held that: assessee's failure to have produced all these materials should not come in the way of substantive justice, and, now that the matter is going back to CIT(A) anyway, all these evidences should be examined and considered on merits - Appeal is allowed by way of remand to CIT(A)
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2012 (5) TMI 459
Whether CIT(A)'s upholding the action of the AO in treating the sums being long term capital gains arising on exercise of rights under ESOP, as "perquisites" and taxed the same in the computation of income under the head "salaries is correct - During the course of assessment proceedings, the Assessing Officer noticed that the assessee had received rights under Stock Option Grant from the parent company of Pfizer India Ltd., viz; Pfizer Inc, USA being the grantor of rights under Stock Option Grant - Held that: Learned Representatives fairly agree that the issue is covered against the assessee in assessee's own case for the assessment years 1999-2000 to 2002-03, and so far as this Tribunal is concerned, the matter is to be decided against the assessee - Appeals are dismissed
Whether CIT(A)'s upholding the action of the AO in calculating Annual Ratable Values (ALV) of three house properties for the purpose of computing "income from house property" on estimated basis is correct - It was also submitted that since these houses were purchased lock back, values are estimated and no such certificates from Municipal authorities are available with the assessee. It was in this backdrop that the Assessing Officer, inter alia, came to the conclusion that the assessee has not been able to give/submit the municipal ratable and substantiate the basis of the computation of ALV and also current capital value - Held that: assessee has furnished the certificates given by the Brihanmumbai Mahanagarpalika showing the rateable value of the flats and these certificates were enclosed to the return of income. The calculation of the assessee was based on these certificates. In the light of these certificates the Assessing Officer was not justified in redetermining the annual letting value of the flats on the basis of the Times of India property chart - Appeal is allowed
Whether CIT(A)'s upholding the action of the AO in disallowing expenses of Rs.1,27,786 for A.Y. 2004- 05 and Rs.2,43,375 for A.Y. 2005-06 incurred on management fees on the alleged ground that these fees are for the purpose of holding assets in Fiduciary Trust of International Account is correct - It was also stated that the copy of the mandate of account opening from FTI account shows that the bank at its discretion may change the nature and composition particularly by selling or purchasing securities, currencies and/or precious metal - Appeals are dismissed
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2012 (5) TMI 458
Addition of Rs.47,72,525/- u/s 69C as unexplained stock - During the course of assessment proceedings the assessee was asked to submit item wise and month wise quantitative details of raw materials as well as sale of finished products - On verification of books of accounts of the assessee and the details as produced before the AO, it was observed that the assessee was maintaining detailed record of purchases, sales and issue of these goods for mixing/preparation of other spices but not produced the same before him - According to the AO, the assessee had showed negative stock and the assessee was asked to explain the negative stock and also why the discrepancy should not be treated as unexplained expenditure incurred by the assessee on purchase of hing - learned DR relied upon the orders of the authorities below and submitted that the assessee has failed to explain the discrepancies in hing account and there was negative balance in the stock on certain dates - Held that: instead of making huge addition against the assessee, it could be reasonable and proper for the AO to reject the book results of the assessee and to make reasonable addition considering the history of the assessee The stock during the course of the proceedings was found to be negative, therefore, it could be presumed that the same was sold outside the books of accounts - The assessee deals in several varieties of the items and as such it would be difficult to maintain details of the stock. The assessee produced all the books of accounts and sales and purchases vouchers before the AO for verification - Decided in favor of the assessee by way of addition of Rs.47,72.525/- is restricted to Rs.3,00,000
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2012 (5) TMI 457
Deemed dividend u/s 2(22)(e) - assessee's shareholding in Claris Lifesciences Ltd. was less than 10% - advance on a date prior to 03.03.2006 - held that:- since on the date of receipt of the amount, the assessee was having less than 10% of beneficial interest in that company, by no stretch of imagination the amount of Rs. 25 lacs received by the assessee can qualify as deemed income under the provisions of Section 2(22)(e) - Held that: the provisions of Section 2(22)(e) of the Act are not applicable in the present case under these facts - Decided in favor of the assessee
Addition u/s 43B on account of service tax - The assessee enclosed a copy of the service tax payable account and service tax receivable account for the financial year 2005-06. It was further submitted by the assessee before the A.O. that the amount of consultancy fee credited to P and L account does not include service tax and expenditure debited to P and L account also does not include services tax as the company is merely an agent or government and is liable to collect and pay service tax in accordance with the provisions of law - Held that: even if this balance amount of Rs.10.93,542/- was paid by the assessee after 31.03.2006 but before the date of filing of return of income of the present year being 29.12.2006, assessee is eligible for deduction u/s 43B of the act in respect of future payment whether by way of cash or by way of adjustment against service tax receivable account - Decided in favor of the assessee
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2012 (5) TMI 456
Rate of CVD in respect of goods where full exemption withdrawn - 1% or 5% - Whether the benefit of Notification No. 1/2011 CE dated 1.3.2011 is available to the impugned goods or not - assessee contested that impugned assessment orders on the impugned Bills of Entry No. 3481711 was passed by Assessing Authority rejecting the appellant's claim of CVD without passing a speaking order in terms of Section 17(5) of Customs Act, 1962 - Held that:- The impugned assessment order is set aside and the concerned authority is directed to pass a speaking order within 15 days of the receipt of this order failing which the appellants appeal shall be treated as allowed - in favour of assessee.
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