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Showing 421 to 440 of 1047 Records

• 2011 (1) TMI 1163
  

  Whether Tribunal was right in law in holding that the profits eligible for deduction u/s 80IA and 80IB of the Act should be included in the computation of "Book Profits" for the levy of MAT as per the provisions of section 115JB of the Act – Held that:- amounts which are required to be reduced from the net profit as shown in the profit and loss account while computing the book profit are specifically laid down in section 115JB, which interalia, include the amount of profits eligible for deduction under section 80-HHC, section 80-HHE and section 80-HHF of the Act in the manner provided thereunder. Section 80-IB of the Act does not find reference in the categories enumerated therein, in the light of the provisions of sub-section (5) of section 115JB, the other provisions of the Act except as provided in the said section would not be applicable while computing book profit for the purposes of section 115JB of the Act. Thus, reliance placed by the appellant on sub-section (5) of section 115JB of the Act is misconceived. The Tribunal was, therefore, justified in holding that the petitioner is not entitled to deduction under section 80IB of the Act while computing its book profits under section 115JB of the Act

  Whether, in the facts and circumstances of the case the Income Tax Appellate Tribunal was right in law in holding that interest is leviable u/s 234B and 234C of the Act in case of assessment order being framed on "Book Profits" u/s 115JB of the Act - Held that:- in the case of M/s. Rolta India Ltd. (2011 - TMI - 201466 - SUPREME COURT OF INDIA) , interest under sections 234B and 234C is payable on failure to pay advance tax in respect of tax payable under section 115JA/115JB of the Act. Thus, it is apparent that the controversy raised vide the said question stands concluded against the assessee by the said decision. In the circumstances, it is not necessary to set out the facts and contentions in detail, no legal infirmity in the impugned order of the Tribunal, appeals are accordingly dismissed

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• 2011 (1) TMI 1162
  

  Writ petition - sufficient opportunity was not given to the petitioner to put forth its case – Held that:- sufficient opportunity was given for filing documents and to file the submission request for further time by the petitioner was not acceded and that the order was passed on the submission and the details available in the file and that as a result the second respondent has not considered the material which was available on record in its proper perspective since there was no hearing given and also the documents which were to be produced and for which time was sought was also not granted and as a result there has been grave prejudice caused to the petitioner on account of the impugned order, respondent is directed to re-consider the matter by giving an opportunity to the petitioner to submit the documents on which it places reliance and also give a personal hearing to a petitioner, writ petition set aside, time for making of the draft assessment order based on the order to be passed by the second respondent is accordingly extended. Writ Petition is disposed of

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• 2011 (1) TMI 1161
  

  Whether the Income-tax Appellate Tribunal was correct in holding that the Commissioner while passing the order under Section 263 had merely substituted his own judgement for that of the Assessing Officer without appreciating that the Assessing Officer had gone into the detailed facts of the case - Commissioner found that as per the record the assessee had claimed that he had engaged 10 to 11 workers at Baddi and manufacturing process was carried out through the whole year. The assessee did not file the details of the salary and wages paid to each worker. The total sum debited on account of wages was Rs.2,49,436/- per annum i.e. Rs.20,786/- per month and the salary of each worker would come only Rs.2,078/- per month, which was barely equal to the minimum wages - Commissioner also found that the assessee had availed a packing credit limit of Rs.40 lakhs but no interest expenditure had been debited in the profit and loss account of the Baddi unit – Held that:- assessee claimed a sum of Rs.23,71,100/- on account of foreign travel by one Shri Himanshu Singhal. It cannot be believed that an employee who is getting a sum of Rs.2,000/- per month would be given the duty of going abroad and be permitted to spend Rs.23,17,100/- during foreign travel which is almost 100 times his annual salary, Further the assessee had availed bank credit limit of 40 lakhs but the interest expenditure had not been deposited in the profit and loss account of the Baddi unit. This clearly shows that the books were not being maintained in a proper manner, Tribunal has totally misread the provisions of Section 263 and has wrongly held that the initiation of the proceedings under Section 263 was not justified in the present case, order Tribunal set aside and reaffirm the order of the Commissioner, questions are answered in favour of the revenue and against the assessee. The appeal is disposed of

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• 2011 (1) TMI 1160
  

  Reopening of the assessment - assessees are directors of the company holding more than 10 per cent share and therefore, in terms of s. 2(22)(e) any amount paid by the company to such directors constitutes deemed dividend and is liable to tax - directors had not filed returns. They filed returns only after the proceedings were initiated under s. 147. Though they disclosed this income in the return – Held that:- assessee is liable to pay tax if the said payment is made out of the accumulated profit of the company, AO was justified in initiating proceedings under s. 147 of the Act for reopening the assessment to bring to tax income that has escaped assessment, decision in favour of the Revenue and against the assessee

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• 2011 (1) TMI 1159
  

  Long-term capital gain - assessees entered into an agreement to purchase the immovable property and paid Rs. 1,00,000 as advance amount. It is the cost of acquisition. They filed a suit for specific performance of the agreement of sale. It is thereafter under an agreement entered into between them and the purchasers, they gave up their right to sue for specific performance in lieu of a payment of Rs. 7,50,000 – Held that:- amount received by them for giving up the right of specific performance i.e., to give up their right in a capital asset constitutes capital gains, they are entitled to deductions as per s. 48, both regarding the investment made as well as the expenditure incurred and only after such deduction the amount arrived at would be exigible to capital gains tax.

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• 2011 (1) TMI 1155
  

  Refund claim – claim rejected on the ground that the appellant had not established that the excess customs duty paid on import of crude petroleum by MRPL had not been passed on to its customers - appellant followed provisional assessment - it was found that the appellant had paid excess duty than due. It claimed refund which was allowed. In respect of certain consignments, the appellant was not able to establish that the excess duty paid had not been fully or partly passed on to its buyers - authority sanctioned refund to the tune of Rs. 25,42,726/- and credited to the Consumer Welfare Fund – Held that:- under Section 27(3), no refund of duty and interest can be made without satisfying the requirements of sub-section (2). Therefore, even though under Section 18, sub-section (5) has been introduced w.e.f. 13-7-2006, the issue of refund was always subject to the provisions of Section 28(3), considering that Sections 18(2) (a) applies to final assessment, order of this Court dated 30-10-1991 in the matter of restitution would be subject to the provisions of Section 27(3) of the Customs Act, 1962, refund claim rejected

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• 2011 (1) TMI 1153
  

  Liquidation – secured creditors - application filed by a secured creditor of the company in liquidation, seeking a direction to the official liquidator to jointly advertise for the sale of the assets of the company - a company which supplied boiler to the company in liquidation, seeking to exclude the same from the list of properties sought to be sold by the secured creditor – Held that:- applicant manufactured two sets of turbo generators and supplied them to the company in liquidation. The company had taken possession lawfully. The title in the goods had passed onto the buyer. Inasmuch as title as well as possession had passed on to the buyer, the applicant herein has no right to claim any lien over the goods. As an unsecured creditor, the applicant has only one remedy viz., to prove their claim before the official liquidator and wait in the queue, objection of the applicant herein to the sale of the turbo generators supplied by them to the company in liquidation, cannot be sustained and their applications under section 9 dismissed

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• 2011 (1) TMI 1143
  

  Winding up - applicant is a certificate debtor along with the company in liquidation in proceedings before the Debts Recovery Tribunal - applicant as well as the company in liquidation are debtors before the Debts Recovery Tribunal. Before it the applicant is liable as a guarantor. The same applicant is a respondent-director in the misfeasance proceedings started in connection with the liquidation proceedings – Held that:- Tribunal with the power to decide an application before it like a suit. It has power to decide set off and counter claims. Then in section 19(13A), the Tribunal has the power to pass an order asking for security, attachment of property and the like. If the Tribunal has the power to order attachment of property, the power to decide the title to that property is incidental to it, Recovery Officer does not have any such power, Recovery is underway. Misfeasance proceedings have not reached that stage before this court, recovery proceedings against applicant/respondent No. 2 will remain suspended till determination of this question by the Tribunal. This order is conditional upon the applicant

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• 2011 (1) TMI 1142
  

  Extension of charge sheet - offence punishable under Section 20(b)(ii)(c), 21(b) and 22(c) of N. D. P. S. Act, 1985 - applicant filed an application for bail before the Special Judge on the ground that no chargesheet was filed till that date and also on the ground that the extension of time was granted on a false representation made by the respondent that the report of analysis of the substance sent to Directorate of Foods and Drugs Administration, Panaji ('DFDA' for short) was not received prior to filing of the application seeking extension of time – Held that:- order granting extension was patently illegal, the learned Special Judge shall pass the order granting bail releasing the applicant on bail on such terms and conditions as he deems fit and proper

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• 2011 (1) TMI 1139
  

  Petition under Section 482 Cr.P.C - quashing of complaint case under Sections 132 and 135 of the Customs Act, 1962 in which he was arrayed as an accused on the ground that the petitioner had preferred an appeal before the Customs Appellate Authority in respect of adjudicating proceedings against penalty and in the appeal he was exonerated and the case qua him was found to be false - statement of Shri Varyam Singh alleging the involvement of the Appellant and is not corroborated by the statement of any other person or by any documentary evidence – Held that:- Since the prosecution was initiated against the petitioner on the basis of available evidence, non-joining of the petitioner in investigation cannot be a ground to distinguish the case of the petitioner from that of Vinod Kumar Jain (supra). The entire evidence sought to be relied upon by the respondent department against the petitioner is the same that was before the Appellate Authority and since the Appellate Authority had considered the entire evidence and come to above conclusion, no useful purpose would be served by continuing with the prosecution against the petitioner before the trial court, petition is allowed and complaint case quashed

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• 2011 (1) TMI 1138
  

  Shortage of Modvat inputs and capital goods in the factory premises - officers of the assessee admitted the shortage in their statement recorded during the course of search, the assessee produced several documents during the course of assessment proceedings to show that there was no shortage - adjudicating authority declined to look into these documents on the ground that they were produced as an afterthought and confirmed the demand – Held that:- matter is restored to the file of the adjudicating authority, appeal is accordingly disposed off

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• 2011 (1) TMI 1137
  

  Refund – unjust enrichment – Held that:- Tribunal has also observed that factual data in support of the submissions raised for refund has not been produced. The Tribunal has also observed that the record could not disclose that as to what was the portion of price related to the gallery along with the duty liability and the detail break-up of the price charged for the goods prior to and after removal of gallery, appellant has failed to establish that they had not passed on duty burden upon the consumers, hence, refund would have amounted to unjust enrichment, no illegality in the order passed by the Tribunal, Appeal being devoid of merit stands dismissed

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• 2011 (1) TMI 1133
  

  Penalty of short payment of duty - capacity of production based duty - provisional assessment - hed that:- The fact that the differential duty held payable by the provisional determination came down drastically shows that there is no mala fide on the part of the assessee to evade payment of duty. In my considered opinion, short-levy which came to be known consequent to re-determination after 5 to 6 years cannot invite penal provision prescribed under Rule 96ZO. The assessee could not have anticipated short levy arising out of re-determination after 5 to 6 years. There is no valid reason adduced for the inordinate delay in re-determination of duty liability in terms of sub-section (sic) of Section 3A. Under these circumstances, it is a fit case for not sustaining penalties, penalties are set aside and the appeals are allowed

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• 2011 (1) TMI 1131
  

  Power of Commissioner (Appeals) to remand - As per the amended provision to Section 35A of the Central Excise Act, the power of remand has been withdrawn w.e.f. 11-5-2001 - Commissioner (Appeals) has no power to remand. - since the adjudication order is passed on violation of principle of natural justice matter remanded back to adjudicating authority.

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• 2011 (1) TMI 1130
  

  Refund - claim rejected on the ground that appellant has failed to establish that they has not passed on duty burden upon the consumers - factual data in support of the submissions raised for refund has not been produced - record could not disclose that as to what was the portion of price related to the gallery along with the duty liability and the detail break up of the price charged for the goods prior to and after removal of gallery - burden in that regard was upon the appellants which the appellants have failed to discharge, appellant has failed to establish that they has not passed on duty burden upon the consumers, hence refund would have amounted to unjust enrichment, Appeal being devoid of merit stands dismissed

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• 2011 (1) TMI 1127
  

  Party to the proceedings - Bank of India is sought to be joined as the party to the proceedings only on the ground that the bond that was executed by the appellants was on Bank of India - Bank of India to whom the notice was issued alongwith the show cause notice to the appellants did not opt to participate under said proceedings before the Adjudicating Authority - Bank of India has not challenged the impugned order, appellants having not disclosed any cause against the Bank of India to join it as the party to this proceedings, the application is rejected

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• 2011 (1) TMI 1126
  

  Benefit of exemption denied on various grounds which were not reflected in the Show Cause Notice - SCN discloses that it relate to only one ground namely that the party is not entitled to claim the benefit of Notification No. 6/2006 under Sr. No. 91 thereof retrospectively as the party had already cleared the goods while claiming exemption under Notification No. 108/95 - Merely because it discloses incorrect provision of law while claiming such benefit that could not result in the denial of such benefit to the assessee, application is allowed, amount claimed under the impugned order is waived till disposal of the appeal

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• 2011 (1) TMI 1123
  

  Assessment - whether Income-tax Officer had the jurisdiction when the assessment proceedings commenced and a draft assessment order was submitted to the Inspecting Assistant Commissioner - Subsequent change in the jurisdiction if any unless brought to the notice of the authority concerned, will not in any manner vitiate the assessment order in the absence of any objection with regard to lack of jurisdiction by the assessee - It is a case where both the Assessing Officer and the assessee proceeded as if there is no transfer order transferring jurisdiction, assessment order made by the Assessing Officer is valid in the eyes of law and this could not have been set aside by the Tribunal notwithstanding the transfer order, appeals are allowed in favor of revenue. The matter is restored back to the Tribunal

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• 2011 (1) TMI 1121
  

  Business connection - Royalty - location of assets and software in India (through the affiliates of the assessee) and rendering of services in India - Deemed to accrue or arise in India - Section 9(1) - held that:- In satellite transmission, a particular frequency is assigned to the customer and in cable transmission, the customer gets a dedicated bandwidth. This is different from the use of a standard facility like the telephone at our homes. A broadband can be divided into two major categories (i) shared; and (ii) dedicated. Shared internet connections include the popular DSL and Cable broadband connections. Dedicated connections are provided by T1, DS3, and Ethernet business services. The term "business" is to be noticed. Shared Internet services originated to make broadband affordable for residential and home office users. Medium to larger size business have always used dedicated connections for their voice and data circuits. In the bigger picture, the entire internet is a shared bandwidth resource. With a dedicated connection, one’s bandwidth is set aside by the service provider and always available for one’s use.

  Order of CIT(A) confirmed wherein it was held that, "to avoid tax liability, apparently, MCI has split the lease charges for the IPLC circuit into two non-existent half circuits. Thus, MCI is trying not to acknowledge its liability on the quantum of lease charges arising in India and received by it by resorting to subterfuges. It is a fact that MCI has provided the single, composite and indivisible circuit which constitutes ‘equipment’. It has merely taken VSNL as a "Provisioning Entity" for providing the local part of services in India. In the alternative, the payments made for IPLC service may also be held to be for the use of process and, hence, would amount to payment of Royalty. The order of the Assessing Officer that payments received by the appellant was royalty for use of equipment and related services is therefore, confirmed"

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• 2011 (1) TMI 1119
  

  Writ of certiorari - Writ petition - counsel for the respondent has pointed out that in similar writ petitions, this Court vide order [2011 (1) TMI 1118 - UTTARAKHAND HIGH COURT] has dismissed as many as eight writ petitions by a common order and the present writ is based on similar facts - Held that:- As petitioner has filed second writ petitions for set of facts therefore Court is of the firm view that second writ petition is not maintainable when the core issues are same in the present writ petition as well as in the earlier writ petition preferred by the petitioner. Accordingly, writ petition is dismissed in limine

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