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Showing 421 to 440 of 934 Records
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2013 (2) TMI 521
Penalties imposed under section 15HA of SEBI Act, 1992 - violation of regulations 3 and 4 of the SEBI(Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 - the appellants while trading through B P Equities Pvt. Ltd., was trading ahead of the trades of CGMMPL and had prior information of the order details of CGMMPL and had sold shares prior to the selling of the shares of CGMMPL subsequently earning profits - Held that:- Cannot agree with the submissions of the appellant that the impugned transactions were in the nature of ordinary market operations. Thus no hesitation in holding that the alleged transactions of the appellant are in the nature of "front running".
The appellants in the present case are traders and not intermediaries. So, following decision in the case of Dipak Patel (2013 (2) TMI 464 - SECURITIES APPELLATE TRIBUNAL, MUMBAI), it is hold that the appellant cannot be held guilty of violating the provisions of regulations 3 and 4 of the FUTP Regulations as that the provisions of regulation 3 are wide in their sweep and application. However, the fact remains that regulation 4(2)(q) of the FUTP Regulations has made a specific provision in respect of manipulative, fraudulent and unfair trade practices indulged in by an intermediary. When a specific provision is available in respect of violation of the regulations it is necessary to apply the specific regulation & the general provisions contained in regulation 3 of the FUTP Regulations cannot be applied to the facts of the case since it is squarely covered by specific provision contained in regulation 4(2)(q) of the FUTP Regulations. There is no specific provision in the Act, rules or regulations prohibiting front running by a person other than an intermediary. Since the appellants are not intermediaries they cannot be held to have violated the provisions of regulations 3 and 4 by indulging in front running.
Set aside the impugned order of the adjudicating officer and allow the appeal with no order as to costs.
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2013 (2) TMI 520
Waiver of pre-deposit - Stay of recovery - Notification No.1/2011-C.E(N.T) dated 17.2.2011 - section 3 of the Central Excise Act, 1944 - Exemption from payment of duty of excise on "goods manufactured at site of construction for use in construction work at such site" - Pre-stressed concrete girders/kerbs manufactured by the assessee - brought to a construction site - used in the construction of a flyover - Section 11 C of the Central Excise Act - Held that:- The structural components were manufactured by the assessee at sites proximate to the construction site, brought to the construction site and used in the construction of flyover/tunnel/viaduct. If the benefit of the notification is available to those assessees, the same cannot be denied to the appellant-company. stay applications also stand disposed of - Appeal decides in favour of assessee
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2013 (2) TMI 519
Clearance of goods by 100% EOU to DTA - Notification No.23/2003-CE dated 31.3.2003 - Imported paraffin wax use in the manufacture of pesticides - Whether paraffin wax is raw material or consumable - With reference to the manufacturing process and the final product that is emerging - Held that:- The paraffin wax was forming part of the final product hence which was not in agreement with the argument of applicant. Therefore, direct the applicants to make pre-deposit 20% of the duty demand. - applicants to make pre-deposit 20% of the duty demand.
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2013 (2) TMI 518
CVD credit - Denial of Cenvat Credit on the strength of the Endorsed Bills of Entry - Differential value of the commercial invoice and value appearing in the Bills of Entry - Unit of the assessee is situated at Bellary imported M.S scrap - Later on it was decided to send it to Salem unit of the assessee - The goods were sent to assessee's factory, The Bills of Entry were endorsed in the names of the assessee - The assessee took the credit of CVD paid by them as Cenvat credit - Held that:- Assessee are entitled for credit of the duty paid by them. Though, in this case duty has been paid by the Bellary Unit, they have not taken credit which fact has been verified by the adjudicating authority. Therefore, the applicants are entitled to take credit on the strength of the duty paid documents of 9 Bills of Entry. In view of this observation we find the applicants have made out a case for 100% waiver. Waiver allowed
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2013 (2) TMI 517
Stay of Operation of the Order - Procure raw materials duty free - Removal of goods at concessional rate of duty for manufacture of excisable goods Rules, 2001 - Such materials could be used as inputs in the manufacture of tower parts to be cleared under exemption - Notification No.108/95-C.E. dated 28.8.1995 - Held that:- The materials sought to be procured by the assessee were not specified under any exemption notification and such materials could not have been procured by following the procedure laid down under the aforesaid Rules. Therefore order is ex facie illegal, its operation has to be stayed lest the respondent should take undue benefit on the strength of the impugned order. Stay of operation of the order granted. In favour of revenue
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2013 (2) TMI 516
Waiver of penalty - Stay petition - Period of limitation - Delay of 53 days in filing of appeal - Section 35 of the Central Excise Act - Commissioner (Appeals) noted this legal position and held the assessee's appeal to be time-barred However, he proceeded to consider the appeal on merits - Held that:- The assessee's appeal against the order-in-original was delayed by more than 30 days. The Commissioner (Appeals) does not have the power to condone such delay, a legal position well settled in the case of SINGH ENTERPRISES (2007 (12) TMI 11 - SUPREME COURT OF INDIA). Commissioner (Appeals), even after holding the assessee's appeal to be time-barred, chose to address the merits of the case was without jurisdiction. A time-barred appeal could only be rejected on that ground by the Commissioner (Appeals) where the delay was found to be beyond the condonable period of delay. Stay petition rejected
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2013 (2) TMI 515
Waiver of pre-deposit - Stay of recovery - DTA clearances of the EOU - Interest on duty u/s 11AB - Penalty u/s 11AC – Penalty under Rule 25 - Penalties on the Managing Director and another Director – Penalty under Rule 26 - Appellate authority dismissed the appeals on the ground of non-compliance with Section 35 F – Held that:- On the basis of decision in earlier case the total amount of duty demanded from the assessee is Rs. 29,32,036/-, towards which an amount of Rs.11,79,922/- paid by them stands appropriated. The Commissioner (Appeals) only required them to pre-deposit an amount of Rs 3.75 lakhs, which they did not deposit. Had they deposited this amount, their total payments would have amounted to a little over 50% of the demand only. Following our stay order dated 30/11/2011 ibid, we therefore direct the company to pre-deposit the above amount of Rs.3.75 lakhs and pre-deposit should be waived in respect of the Managing Director and Director of the Company.
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2013 (2) TMI 514
Addition of Rs.23,59,461 made up to the AY 1971-72 as extra income of the appellant available for purposes of taxation under the Wealth Tax Act? - contention of the petitioner that the assessment of income of the petitioner was based on the assessment made by the ITO in the income tax assessment proceeding and, therefore, the assessment and increase are only assessment therefore, intangible property - Held that:- It is true once a presumption is drawn, that can be rebutted by evidence by the person against such presumption goes and it is one of the well settled proposition of law, but there may be exception to it and one of that exception is that said presumption of existence of assets and it might have extinguished after passing of the long time, which is also sufficient rebuttal to the original presumption of existence of the assets in the hands of the assessee.
Therefore, in view of the binding judgment of J.K.Cotton Manufacturers Ltd. [1994 (2) TMI 3 - SUPREME COURT] the considered opinion that the question is required to be answered in favour of the assessee and it is held that in these cases, the addition of Rs.23,59,461/made from assessment years 1963-64 to 1970-71 cannot be held to be the assets in the hands of the assessee after the period of more than eight years and, therefore, in these cases no tax can be imposed on the basis of such addition of Rs.23,59,461/treating it to be wealth for the purpose of wealth tax for the years 1985-86 to 1988-89 and onwards.
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2013 (2) TMI 513
Recovery proceedings - defaulter of sales tax - Held that:- As for the year 2006-2007 penalty of Rs.12,000/- was levied on the petitioner for non-filing of the returns. Also during the year 2007-2008 penalty of Rs.1000/- was levied for non renewal of registration and penalty of Rs.2000/- was levied for non-filing of returns for April and May 2008. Thus total amount due from the petitioner is Rs.15,000/- and that the recovery proceedings in question have been initiated for realising the said dues.
Thus the premise on which the writ petition is filed that the petitioner is not a defaulter is factually incorrect. No interference with the recovery proceedings required.
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2013 (2) TMI 512
Review petition seeking review of the judgment - Tribunal is not taking up the appeal for hearing as per last sentence of judgment appeal shall be heard by the Tribunal within three months from the date of making payment of the last installment and assessee had paid one instalment, but could not pay the balance two instalments because of financial difficulties - Held that:- In the facts and circumstances of the case last sentence in the judgment is to be deleted but this will not in any way affect the right of the Revenue to recover the tax involved.
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2013 (2) TMI 511
Eligibility to utilize cenvat credit availed for discharge of service tax paid on GTA services - period from October 2006 to March 2008 - Held that:- As decided in ABB Ltd. [2011 (3) TMI 248 - KARNATAKA HIGH COURT] prior to 01.03.08 credit of service tax would be available for discharge of service tax on the services rendered or received for GTA services. Since the entire service tax liability in this case falls within the period from October 2006 to February 2008 the judgment of the Hon ble High Court of Karnataka will squarely cover the issue in favour of the assessee.
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2013 (2) TMI 510
Refund claim rejected - for the period from July to December, 2009 on the ground that the Appellant failed to produce requisite documents for verification - Held that:- Appellant are in possession of the said documents, as the same are produced before this Tribunal and verified by the ld. A.R. Therefore, these claims need to be remanded to the lower Adjudicating Authority for verification of these documents which were held to be not produced before the Commissioner (Appeals).
Refund claim for the period from April to June, 2009 rejected on the ground of time-bar as the refund claim was filed after a period of six months, as prescribed under Notification No.41/2007 dated 06.07.2007 - Held that:- There is some force in the argument of the assessee that the Notification No.17/2009-ST dated 07.07.2009 was in force at the time of filing of the refund claim. Therefore the refund claim for the period from April to June, 2009 is also remanded to the lower adjudicating authority to examine the same afresh, in the light of the judgment of this Tribunal in the case of East India Minerals Ltd. (cited supra). Also, while deciding the refund claims, the adjudicating authority should keep in mind the decisions of this Tribunal in Trident s case and Durhan Spintex & Holding s case (2012 (8) TMI 22 - CESTAT, KOLKATA) - appeal in favour of assessee by way of remand.
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2013 (2) TMI 509
Rent-a-cab Services - non obtaining of service tax registration up to January 2008 and without paying service tax on the amount received by them for providing taxable service - whether the appellant herein is eligible to claim the benefit of cum-tax value on the bills which has been raised by him as service provider - Held that:- As decided in Advantage Media Consultant (2008 (3) TMI 59 - CESTAT KOLKATA) also confirmed in [2008 (10) TMI 570 - SUPREME COURT] Service tax is an indirect tax. As per this system of taxation, tax borne by the consumer of goods/services is collected by the assessee (manufacturer/service provider) and remitted to the Government. When the amount is collected for the provision of services, the total compensation received should be treated as inclusive of service tax due to be paid by the ultimate customer of the services unless service tax is also paid by the customer separately.
So considered, when no tax is collected separately, the gross amount has to be adopted to quantify the tax liability treating it as value of taxable service plus service tax payable also this principle has been legislated with effect from 18-4-2006 in Section 67(2) of the Finance Act, 1994 that where the gross amount charged by a service provider, for the service provided or to be provided is inclusive of service tax payable, the value of such taxable service shall be such amount as with the addition of tax payable, is equal to the gross amount charged - the appellant is eligible to cum-tax benefit of the amounts received from the service recipient and the same being differential amount, which has been confirmed by the lower authorities the impugned orders to the extent they confirm the differential service tax liability of Rs. 33,929/- along with interest are set-aside and also the consequent penalties - in favour of assessee.
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2013 (2) TMI 508
Maintenance and repairs of railway sidings owned by private parties carried out by Central Railway - seeking waiver of pre-deposit of 50% of the service tax as by a Notification dated 21 December 2010 an exemption was provided in respect of management, maintenance or repair of railways - Held that:- As it appears that from 21 December 2010 Notification the service provided for the management, maintenance or repair of railways stands exempted.Hence, insofar as the demand covered by the second show cause notice dated 3 May 2011 for 2010-11 is concerned (Rs.74.22 lakhs), a complete waiver of deposit was warranted.
For the balance of the demand of ₹ 2.51 crores which relates to the period 2005-06 to 2007-08 this period is prior to the exemption notification thus appeleant direct to deposit an amount equivalent to 20% of the demand within a period of eight weeks from today.
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2013 (2) TMI 507
Breach of provisions under Section 4 of Competition Act, 2002 - abused of dominance position - Appellant-company was engaged in development of telecommunication networks, security systems, display systems and traffic management systems filed information against AAI complaining that it was abusing its dominant position by specifying a particular technology, i.e., hydraulic bollards, in its procurement tender invitation notice for bollards, and, therefore, creating technical entry barriers for other type of bollards like one which were being produced by appellant-company - Held that:- Tribunal cannot accede to any of the prayers in the information, as it is not for this Appellate Tribunal to re-write the tender conditions. It is also not for this Tribunal to frame the policies of the bodies like Airport Authority of India. Lastly, it is also not for this Tribunal to direct the CCI to address it to Vigilance Commission.
The contention raised by informant cannot be accepted as that in requiring specific type of Bollards i.e. Hydraulic operated bollards the AAI has in any way breached any of the provision of section 4. The AAI was acting in its capacity as a consumer and as argued by the representative for the AAI it was equipped with technical committee to advise the AAI for a purchase of particular type of bollards. It cannot be imagined that a body like AAI was not equipped with the technical advice and would be acting without any such technical assistance. Therefore, if the AAI had a free choice to purchase a particular type of commodity, its hands could not be tied by taking the recourse to the competition act and the provisions there under. After all in the market the consumer would have to be given consumers dew i.e. basically his choice. The contention raised by appellant therefore, rejected.
The argument of Appellant cannot be accepted that AAI was a dominant purchaser and had abused its dominance. In fact for the purposes of deciding the dominance, both the product market as well as geographical market are to be considered and insofar as the product market is concerned, it related to all the kinds of bollards whether hydraulic operated or otherwise. It is commonly known that bollards are used everywhere. The bollards are used even for the entry into the star hotels. They are used even for controlling the traffic. They are used everywhere where security and safety is required to be maintained. Therefore, there is nothing relevant about a particular type of bollards. They are required by not only AAI but by number of other institutions. Therefore, it cannot be said that the AAI would be a dominant player. Therefore the market to be only the five airports named in the notice inviting tender cannot br restricted. Once the AAI held not to be in a dominant position, there would be no question of going further into the breach or otherwise of Section 4 of the Act.
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2013 (2) TMI 506
Provision of salaries - deduction claimed u/s 37 (1) disallowed - assessee submitted that it is a Public Sector Undertaking (PSU) & the revision of salary depend upon the decision of the Government - Held that:- As decided in Bharat Earth Movers vs. CIT [2000 (8) TMI 4 - SUPREME COURT] if a business liability has definite origin in the accounting year, the deduction should be allowed although the liability may have to be quantified and discharged at a future date. What should be certain is the incurring of the liability. It should also be estimated with reasonable certainty though the actual quantification may not be possible. If these requirements are satisfied, the liability is not a contingent one. The liability is in praesenti though it will be discharged at a future date, it does not make any difference if the future date on which the liability shall have to be discharged is not certain. Thus following the above case AO is directed to allow the claim of deduction of provision for salary of Rs.40.71 lakhs as the services rendered are in presentee - in favour of assessee.
Disallowance of deduction of provision of OFC charges considering as prior period expenses - assessee's submission that it is the demand note received from the Department of Telecommunication (DOT) - Held that:- As decided in Sourashtra Cement and Chemical Industries Ltd. vs. CIT [1994 (10) TMI 30 - GUJARAT HIGH COURT] that merely because expenses relate to a transaction of an earlier year, it does not become a liability payable in the earlier year unless it can be said that the liability was determined and crystallized in the year in question on the basis of maintaining accounts on mercantile basis. As the facts of the present case are identical with the ratio laid down by the Gujarat High Court, no hesitation in following the findings. Also see Satna Stone & Lime Company vs. CIT [1989 (9) TMI 11 - CALCUTTA HIGH COURT] - in favour of assessee.
Depreciation on new earth stations at Ernakulam and Jalandhar on Trial run - Direction of the CIT(A) to allow depreciation disallowed by AO as the same have not been put to use for business purpose - Held that:- The claim of the assessee is based on the trial run of the equipments before putting them for commercial use. And as find that the documents which were submitted before the lower authorities clearly show that the assets were put to test run before the close of the financial year under consideration. Thus as decided in ACIT vs. Ashima Syntex Ltd. (2000 (8) TMI 22 - GUJARAT HIGH COURT) that on trial run of machinery assessee is entitled to depreciation - it is not in dispute that the assets had been acquired by the assessee during the previous year and is put to use for the purposes of business or profession and as the assets have been put to use for less than 180 days, the assessee has rightly claimed depreciation @ 50% of the allowable rate of depreciation - in favour of assessee.
Depreciation on the ownership of Flag Project - Direction of the CIT(A) to allow depreciation disallowed by AO as assessee is not a complete owner of the asset which is in the form of cable network and owned by a consortium of number of operators - Held that:- The words “wholly” or “partly” have been inserted in Section 32 with effect from 14.4.1997 and as such, the assessee is eligible to claim depreciation on the cable network even though the entire network is not owned by it. The CIT(A) concluded that the assessee is clearly entitled to claim the depreciation and directed the Assessing Officer to allow depreciation accordingly - in favour of assessee.
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2013 (2) TMI 505
Benefit of deduction under section 54F denied - Jurisdiction u/s 263 by Commissioner stating that assessee was engaged in business of sale and purchase of properties thus he could not claim benefit of deduction under section 54F - The assessee was deriving income from 'dealing in property transactions' - as per CIT(A) claim qua sale of some plots/land could not have been treated by the AO as 'capital gain' - Held that:- AO had himself treated the main income of the assessee from purchase and sale of plots/land. The assessee himself has disclosed this fact over the years. The Assessing Officer has made proper inquiries in this regard & the Commissioner (Appeals) has proceeded on a notion that an assessee, whose main business was purchase and sale of plots/lands, could not claim LTCG on the sale of some plot/land even if these were held for quite some time and the sale consideration even from those plots to be treated as assessee's business income.
There is no dispute regarding the source of income of the assessee which was mainly from the business of purchase and sale of plots/lands. Yet, it did not mean that assessee was debarred from purchasing and holding some plots/land as capital asset and claim benefit under section 54F. The entire facts regarding this aspect go to prove that the assessee had kept the impugned asset and has earned LTCG, which has been invested in terms of provisions of section 54F. The AO' action did not call for any enquiry in this regard as he had taken one of the possible view keeping in view the entire facts. The Commissioner can have his own view and that may be other possible view. But in such situations, the order cannot be treated as erroneous.The Commissioner cannot revise the order on this aspect. AO has also made requisite enquiries regarding other aspects of investments made and liabilities shown by the assessee and other expenses, which is clearly explained by the assessee - the order of the Commissioner is set aside and that of the Assessing Officer is restored - in favour of assessee.
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2013 (2) TMI 504
Addition on account of Value of Closing Stock – AO added an amount under the head under valuation of closing stock – weight of closing stock in the valuation report of valuer and closing stock on the date of survey differ – Held that:- Assessee is a registered dealer of gold ornaments having TIN and duly filed the quarterly returns of VAT - VAT audit report was also obtained from the Chartered Accountant certifying the total turnover and stock, reflecting the gross weight of ornaments and net weight contents of gold in the ornaments as also the method of stock valuation – VAT audit report was duly submitted with the sales tax authorities and no objection and/or adverse inference was drawn by Department.
Further excess closing stock was incorrectly ascertained on the basis of figures as per the stock records in GS- 1 I and GS-12 which were not up to date in respect of all the entries as on the date of survey – There was difference of 91.365 gms. in gross weight, this difference is considered to be quiet negligible - Addition made by the A.O. on account of excess stock deserves to be deleted because there was no excess stock and that the approved valuer has not correctly ascertained the net weight of gold ornaments valued by him – Case of Prakash Motwani Vs. ITO [2009 (6) TMI 650 - ITAT AGRA] is relevant here – Against the revenue.
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2013 (2) TMI 503
Commission to foreign agent - Assessee paid commission to foreign agent - Assessee’s name was appearing in the report of Volcker Committee, wherein it was mentioned that commission paid to parties outside India in respect of sale of goods to Iraq is unethical - On this basis AO disallowed the commission payments as it is illegal payment – Held that:- Mere appearance of the name of the appellant-company in the Volcker Committee’s Report could not lead to an adverse inference against the appellant because the appellant itself has admitted to have made export gainst sale contracts procured from the Govt. of Iraq and payment of commission therefor - Payment of commission by the appellant for the services rendered in procuring the sale contracts and for facilitating smooth execution of the sale contracts. The appellant has produced ample material in support of the reasonableness and legality of the payment of commission - commission was paid through the normal Banking channel - payment of commission was made for the purpose of business on grounds of business expediency and there was no element of illegality in making the payment – Against the revenue.
Further, Section 40(a)(i) shall not be applicable in the given case since there is no liability on the appellant to deduct taxes at the time of payment of the commission to an agent outside India and deposit the same with the tax authorities – No violation of Section 195 - Against the revenue.
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2013 (2) TMI 502
Claim for deduction under Section 80-IA – Assessee is in the business of manufacturing of yarn - Also installed three windmills - Electricity Board purchased power from assessee at the rate of Rs. 2.70 p.u. and sold to assessee’s textile units at 3.50 p.u. – For deduction u/s 80-IA in respect of the power produced by the windmills, assessee adopted the rate at which the power was sold by Electricity Board to it, after making adjustments for the units generated by the assessee – Held that:- It is not that the same power that was produced by the assessee was supplied by the Electricity Board to its yarn manufacturing unit. The adjustment in the bills as a barter arrangement was, therefore, only for the convenience of the Electricity Board.
Section 80-IA provides that where an assessee, which is eligible for 80-IA benefits, transferred its goods or service to its business other than the eligible business, the consideration if any recorded for such transfer in the accounts of the eligible business, should correspond to the market value of such goods or services - Determining of tariff between assessee and Electricity Board cannot be considered as an exercise undertaken in a competitive environment and under market conditions – Further Had the assessee not been saddled with the restrictions of supplying surplus power to the State Electricity Board, it would have supplied the power to ultimate customers at a price not less than Rs. 3.50 per unit, being the rate charged by the Board from its industrial consumers. Thus consideration recorded by the assessee for transfer of power for captive consumption, at Rs. 3.50 per unit, corresponds to the market value of such power – In favour of assessee.
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9911796707
