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Case Laws
Showing 421 to 440 of 559 Records
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2007 (6) TMI 140
Unexplained investment – AO made addition in the total income of the assessee as unexplained investment in the construction of commercial complex on the basis of valuation of DVO report but rejected by the tribunal on the ground that amendment to section 142A would not apply in present case
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2007 (6) TMI 139
Issues:
- Whether the Tribunal properly exercised its discretion in deleting the penalty imposed under section 271(1)(c) of the Income Tax Act?
- Whether there was concealment of income by the assessee regarding brokerage earnings?
Analysis:
1. The appeal was filed by the Revenue against the order of the Income Tax Appellate Tribunal regarding the deletion of a penalty imposed under section 271(1)(c) of the Income Tax Act. The substantial question of law raised was whether the Tribunal had rightly exercised its discretion in deleting the penalty when the assessee had not included the total brokerage received in its profit and loss account.
2. The assessee, a share broker company, filed its income tax return for the relevant assessment year admitting taxable income. The Assessing Officer made various additions and disallowances to the income tax return, including disallowing brokerage payable to a UK company. Subsequently, a penalty was imposed on the assessee for concealment of income earned through brokerage.
3. The Commissioner of Income-tax (Appeals) confirmed some additions and disallowances but canceled the penalty, stating that the assessee had not filed inaccurate particulars of income or concealed any income. The Revenue appealed to the Income-tax Appellate Tribunal, which upheld the cancellation of the penalty, leading to the current appeal by the Revenue.
4. The Revenue contended that the assessee did not show sub-brokerage in the profit and loss account, only the net brokerage, which was against the accounting method. The Assessing Officer found an understatement of brokerage receipts, justifying the penalty.
5. However, it was argued that the assessee followed an accounting practice of netting brokerage earned against sub-brokerage payable, showing only the net amount in the profit and loss account. The sub-brokerage payable was reflected in the balance sheet. The mistake was deemed unintentional, with no attempt to conceal income.
6. Both the Tribunal and the First Appellate Authority found no concealment or inaccurate particulars furnished by the assessee, attributing the discrepancy to a genuine mistake. The Supreme Court precedent was cited to support accepting concurrent factual findings by lower authorities.
7. Ultimately, the High Court dismissed the tax case, finding no substantial question of law for consideration, as the findings of the Tribunal and lower authorities were based on valid evidence, and no legal infirmity warranted interference.
This judgment clarifies the distinction between genuine accounting errors and intentional concealment of income, emphasizing the importance of factual findings by lower authorities in tax penalty cases.
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2007 (6) TMI 138
Rate of depreciation – Assessee claimed 100% depreciation for the larger containers used for transporting chlorine gas, under the category of gas cylinders including valves and regulators – Held that unless legislature prescribes and imposes any qualification as to the size of the gas cylinders, assessee entitle for 100% depreciation
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2007 (6) TMI 137
Once the services are covered u/r 6(5) CCR, then separate accounts of dutiable and exempted services are not required to be maintained – The word ‘allowed’ covers both ‘taking’ and ‘utilization’ so Revenue’s contention of denial of utilization of credit is baseless
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2007 (6) TMI 136
Refund – Assessee pleaded that goods were transferred to their own unit so incidence of duty has not been transferred – Above plea is not acceptable as the units are different entities separately registered so doctrine of Unjust Enrichment is applicable
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2007 (6) TMI 135
Issues:
1. Interpretation of Chapter note 5 of Chapter 30 regarding labelling/re-labelling of containers as manufacturing activity.
2. Applicability of CBEC circular on labelling as manufacture.
3. Consideration of Tribunal's decision in Johnson & Johnson Ltd. case.
4. Effect of Hon'ble Supreme Court's judgment on similar issue.
Analysis:
1. The case involved a dispute over whether labelling or re-labelling of containers amounts to manufacturing activity under Chapter note 5 of Chapter 30. The appellant argued that mere labelling does not constitute manufacture as the goods were already in a marketable condition at the time of import. They relied on statutory requirements under the Drug & Control Cosmetics Act and Standards of Weights and Measures Act to support their position.
2. The appellant further contended that the CBEC circular No. 102/4/95-CX.3 clarified that mere fixing of labels does not amount to manufacture. However, the Commissioner rejected these arguments, citing Chapter note 5 and the withdrawal of the Board's Circular of 1996. The Commissioner confirmed the demand and imposed penalties based on this interpretation.
3. The Tribunal considered the appellant's reliance on the decision in Johnson & Johnson Ltd. case, which held that labelling not accompanied by repacking from bulk to retail does not amount to manufacture. The Tribunal noted that the Commissioner did not consider this precedent. Additionally, the Tribunal mentioned that the Revenue's appeal against the Tribunal's decision was dismissed by the Hon'ble Supreme Court in a related case.
4. In light of the Hon'ble Supreme Court's judgment, which emphasized the necessity of repacking from bulk to retail packs to constitute manufacturing, the Tribunal found that the appellant's activity of solely labelling the goods did not meet the criteria for manufacturing. Therefore, the Tribunal set aside the impugned order, allowed the appeal, and provided consequential relief to the appellant based on the Supreme Court's decision.
This detailed analysis reflects the thorough consideration of legal interpretations, precedents, and relevant statutory provisions in the judgment delivered by the Appellate Tribunal CESTAT, Ahmedabad.
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2007 (6) TMI 134
Issues:
1. Confirmation of short levy in respect of misroll.
2. Barred by time - Show cause notice issued after a lapse of 2 years.
Analysis:
1. The appeal arose from an order confirming short levy in respect of misroll, where the appellants had classified the goods and paid the duty. However, the revenue proceeded against them by issuing a show cause notice invoking a larger period for confirming duty based on alleged misdeclaration of goods. The appellants contended that the demands raised were barred by time, as they had furnished all details to the department in 1998. The Commissioner noted that the appellants admitted their mistake in classifying the product under the wrong heading. The Tribunal observed that all details were furnished on 15-1-2000 as required by the Department, and the show cause notice issued on 22-8-02 was clearly time-barred. The demand was held to be hit by the time bar, and the impugned order was set aside with the appeal allowed.
2. The Tribunal considered the timeline of events, noting that the appellants had initially furnished details on 12-2-98, with further details provided on 15-1-2000 as required by the Department. Despite this, the department failed to initiate action within the period of limitation and issued the show cause notice for recovery of short levy on 22-8-02. It was emphasized that all necessary information had been furnished, and there was no suppression of facts. Consequently, the Tribunal concluded that the demand was indeed hit by the time bar, leading to the setting aside of the impugned order and allowing the appeal with any consequential relief. The decision was pronounced and dictated in open court.
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2007 (6) TMI 133
Issues:
1. Rejection of refund claim without granting an opportunity of hearing.
2. Discrepancy in the refund claim amount.
3. Rejection of claim due to lack of supporting documents.
4. Contention regarding unjust enrichment.
5. Acceptance of Chartered Accountant's certificate to rule out unjust enrichment.
Analysis:
Issue 1: The appeal arose from the rejection of the refund claim without granting an opportunity of hearing. The Original Authority had rejected the claim amounting to Rs. 1,15,827/- without providing a chance for a hearing. However, before the Commissioner (Appeals), the appellants revised the refund claim to be Rs. 1,59,856/-, stating a clerical error which left out an amount of Rs. 44,029/-, resulting in the claim of Rs. 1,15,827/-.
Issue 2: A discrepancy in the refund claim amount was noted, where the appellants had availed Modvat credit of Rs. 74,441/- in respect of the CVD portion, while claiming an excess payment of Rs. 85,415/-. The total calculation revealed that the actual refund claim should be around Rs. 41,383/-.
Issue 3: The authorities rejected the claim due to the appellants' failure to produce necessary documents such as balance sheets, books of accounts, ledger accounts, pre and post-import sale invoices, Cost Accountant's Certificate, and other documents to rule out unjust enrichment.
Issue 4: The appellants contended that the excess payment was not passed on to the customers, and the price remained constant, as certified by a Chartered Accountant's Certificate. However, the authorities did not accept the certificate as it was not supported by the required documents, leading to a dispute regarding unjust enrichment.
Issue 5: The key question revolved around whether the Chartered Accountant's certificate should be accepted to rule out unjust enrichment. The learned Counsel argued for the acceptance of the certificate, citing Tribunal rulings and judgments, including Commissioner of Customs, Bangalore v. AT & Sindia Pvt. Ltd. The Counsel highlighted various Tribunal rulings and a judgment of the Madras High Court accepting Chartered Accountant's certificates in similar cases.
In conclusion, the Tribunal accepted the Chartered Accountant's certificate produced by the appellants, certifying that the claim amount was not hit by unjust enrichment. The rejection of the certificate was deemed unsustainable, and based on the records maintained by the appellants, the Tribunal ordered a refund of Rs. 41,383/-, allowing the appeal with consequential relief if any.
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2007 (6) TMI 132
Cenvat/Modvat – The appellant reversed the credit on the part of the goods before their clearance which carrying nil rate of duty – The demand on the ground of mis-utilisation of credit and non maintainable of separate account not sustained as per the order of tribunal
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2007 (6) TMI 131
Natural justice – Assistant commissioner rejected the refund claim of duty paid by appellant at the time of import of goods which is not leviable without issuing any SCN, it is violation of principal of natural justice – Allowed the refund claim of appellant
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2007 (6) TMI 130
Exemption – The appellant has an option either he availed exemption or he pay the duty on final product and thereafter availed the credit – Mandatory availment of exemption come with effect from 13-5-2005, so not applied in the present case – tribunal set aside demand and penalty affix on appellant
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2007 (6) TMI 129
Penalty (Customs) – Penalty imposed u/s 114(iii) on the appellant on the ground that they export the impugned goods without claiming any export benefit but appellant contended that they filed the free shipping bills, and said section applied were filed shipping bill under drawback claim – Hence penalty set aside
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2007 (6) TMI 128
Valuation(Central excise) - Alleged that the transaction between appellant and other party(PGIL) is not on P to P basis and also he is not an independent job worker and therefore liable to pay duty on the price charged at the depots from other party - Allegation not sustained and demand set aside
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2007 (6) TMI 127
SCN - Commissioner(A) remanded the matter to the lower authority on the ground that in SCN the comparison of the goods cleared by appellant from the large scale unit instead of medium scale unit but appellant contended that the remand is beyond the scope of the SCN - Remand order is set aside
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2007 (6) TMI 126
Manufacture - Issue arises regarding dutiability of the soft cotton waste generated during the processing of ginned cotton into fibres - Appellant contention is that the there is no manufacturing process is involved - Held that said cotton waste is not dutiable
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2007 (6) TMI 125
Stay/Dispensation of pre-deposit - Appellant contested that the entire activity is covered under exemption notification and the activity can't split in other way - Appellant directed to pre-deposit of Rs. 5 lakhs and balance waived off on the ground of part of activity is covered under notification
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2007 (6) TMI 124
Cenvat credit of service tax - Appellant utilised for payment the service tax the credit of service tax paid on the transport of material to their factories on subsequent transport - Tribunal declared the credit utilised for payment of service tax on subsequent transport is valid
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2007 (6) TMI 123
Cenvat/Modvat - Appellant paid duty consignment-wise by debiting the same form Cenvat credit account instead of PLA account which lead to contravention of the law and accordingly demand were made alongwith penalty - Tribunal allowed the appeal partly
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2007 (6) TMI 122
Issues:
Service tax demand, interest, penalties, waiver of pre-deposit, stay of recovery.
Analysis:
The case involved an appeal filed by M/s. G.B. Engineering Enterprises (P) Limited against an order passed by the Commissioner of Customs and Central Excise. The Commissioner had upheld a demand for service tax, interest, and penalties imposed by the Joint Commissioner. The appellant, a manufacturer of boilers and boiler components, also provided Consulting Engineer Service to another company. It was found that the appellant had received advances for both material supply and services, but had only adjusted a portion towards services rendered. The authorities concluded that the appellant had raised invoices for services rendered, not for materials supplied, leading to the demand for service tax, interest, and penalties.
During the proceedings, the appellant argued that prior to the amendment in the statute, service tax was only required to be paid after the related service was provided. The appellant had charged service tax on the invoices for the service portion but had not credited it to the exchequer. After considering the submissions and records, the Tribunal found that the appellant had not made a prima facie case for waiver of pre-deposit and stay of recovery of the dues. The appellant had already paid the service tax and interest due but still had penalties to pay. The Tribunal ordered the appellant to deposit a specific amount within four weeks, after which the balance dues would be waived, and recovery stayed till the final disposal of the appeal. Compliance was to be reported by a specified date.
In conclusion, the Tribunal upheld the demand for service tax, interest, and penalties, while ordering the appellant to make a specific deposit to waive the balance dues and stay recovery pending the final disposal of the appeal.
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2007 (6) TMI 121
Department contended that appellant was a sub-broker and engaged in the activity of a stock broker which attracts service tax and demanded accordingly. Services of sub-broker was included with effect from 10-09-2006 vide Finance Act, 1994 - pre-deposit service tax waived
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