|
Advanced Search Options
Case Laws
Showing 421 to 440 of 748 Records
-
2009 (9) TMI 671
Services received from outside India- Business Auxiliary Services- The assessees herein are manufacturers of cotton yarn of various varieties and polyester cottons yarn of various varieties, they export goods to various countries, they paid commission during the period Oct.2004 to Sept.,2005 for this purpose. Thus the department held that assessee were receiving taxable service under the category of ‘Business Auxiliary Service’. In the light of the decision of Indian National Shipowners Association v. Union of India 2009 -TMI - 32013 - HIGH COURT OF BOMBAY, held that set aside the impugned order and allow the appeal.
-
2009 (9) TMI 670
Scientific and technical consultancy- Services received from outside India- . The issue involved in this case is regarding service tax payable by the appellants during the period from 16-8-2002 to 31-3-2007 for the services rendered by the respondent under the category of ‘Scientific and Technical Consultancy Services’. It is undisputed that the respondent has received the said services from a foreign firm. The Commissioner (Appeals) has come to the conclusion that for the period from 16-8-2002 to 18-4-2006, the respondent, being a recipient of the services is not liable to service tax. It is the finding, that the respondent has discharged the service tax liability from 18-4-2006.In the light of the decision of Indian National Shipowners Association v. Union of India 2009 -TMI - 32013 - HIGH COURT OF BOMBAY, held that uphold the order of Commissioner (Appeals) and reject the appeal filed by the revenue.
-
2009 (9) TMI 669
Services received out of India- The assessee has been getting export orders from abroad through some agents stationed outside India. These agents provide the service of procuring export orders for the assessee. Intelligence further revealed that the assessee paid certain amount as commission to the said foreign agents for getting export orders. The Department consequently obtained the information that during the months from 1-7-2003 to 15-6-2005, on the evidence it was concluded that the said agents have been rendering the service of “promotion or marketing or sale of goods produced or provided by or belonging to the assessees which falls under the purview of ‘Business Auxiliary Service’. In the light of the decision of Indian National Shipowners Association v. Union of India 2009 -TMI - 32013 - HIGH COURT OF BOMBAY, held that prior to 18.4.2006, they are not liable to service tax, as the period of dispute is 1.7.2003 to 15.6.2005, thus no liability arise. Appeal is allowed.
-
2009 (9) TMI 668
Whether the Tribunal is correct in setting aside the redemption fine and penalty imposed on the second respondent who violated the provision of Section 111(m) of Customs Act, 1962 by misdeclaring the imported goods – Held that:- contention of the counsel for the petitioner that whether the imported goods is a dried garlic or a fresh garlic containing moisture over and above 60 per cent is a pure and simple question of fact and hence it would not come under the purview of reference under Section 130-A of the Customs Act. The other contention made by the learned counsel that the second respondent has misdeclared the goods and its value for clearance of the goods which is liable to auction under Section 111(m) of the Customs Act is also one specifically excluded from the scope and amplitude of Section 130-A of the Customs Act by stating that the order not being order relating to among other things to the determination of any question having relating to a rate of duty of customs or to the value of goods for the purpose of assessment, applicant cannot maintain reference case under Section 130-A of the Customs Act, petitions are dismissed
-
2009 (9) TMI 667
Writ Petition – condontion of delay of 601 days - petitioner seeking condonation of delay that the petitioner shifted their office and that the original order of the Appellate Commissioner was received at the old place of office and misplaced – Held that:- application of the petitioner to condone the delay is allowed
-
2009 (9) TMI 666
Cenvat credit - petitioner paid excise duty in advance, when the petitioner sought permission to store the molasses in kutcha earthern pits - excise duty was paid by taking the market value as on the date of storage. But by the time they were actually sold, the market price fell - Department disputes the claim for refund on two grounds viz. (i) that their claim for remission was rejected earlier and it had attained finality and (ii) that the claim for refund was made beyond the period of limitation prescribed under Section 11-B of the Central Excise Act, 1944 – Held that:- “relevant date” are defined in Explanation (B) under Section 11-B. Sub-clause (eb) under Explanation (B) defines a relevant date to mean the date of adjustment of duty after final assessment in case where the duty on excise is paid provisionally under the Act. Therefore the claim of the petitioner for refund cannot be said to be beyond the period of limitation, writ petitions are allowed and the respondents are directed to refund the excess duty payable to the petitioner, after appropriating the duty in respect of the goods actually sold with reference to their sale value
-
2009 (9) TMI 665
Demand of excise duty under Section 11-A and penalty - challenge the order on the point of bar of imitation - non-applicability of the extended period of limitation - respondents submitted that, merely because there was failure to submit the information in the prescribed form, that would not amount to suppression of facts with intent to evade the duty – Held that:- It is not the case of the respondents that during the relevant period there was occasion for the Department to verify the facts in question. Had there been such occasion, perhaps the knowledge could have been, inferred. In the absence of such information, it cannot be presumed that the Department was fully aware of the fact that the respondents had been under-valuing their goods i.e. physician’s samples by paying duty much below the value of the similar goods which were being removed by the respondents. Obviously, therefore, the provisions of extended period of limitation as well as provisions relating to penalty were clearly attracted, order cannot be sustained and is liable to be set aside and the order passed by the lower authority is to be restored, appeal is accordingly disposed of
-
2009 (9) TMI 662
Writ petition - challenging a conditional stay order passed by Tribunal - Tribunal directed the payment of the entire duty only on the ground that the amount involved is small in the sense that it is less than Rs. 1 lakh – Held that:- quantum cannot be the sole criteria for deciding a stay petition, writ petition is allowed, the impugned order is set aside and the matter remitted back to the first respondent Tribunal for a fresh consideration in accordance with law
-
2009 (9) TMI 660
Whether the Tribunal is correct in law in allowing the job worker to raise an invoice under Rule 52A when it was not provided in the rules and allowing the job worker to pay duty on credit inputs sent for processing at his end also allowing the credit availed by the assessee on the duty paid by the job workers is correct as it amounts to double credit on the same inputs - Held that:- after reversing the modvat credit availed on the inputs sending it to the job worker by the assessee and getting it back after the job work is done and again reversing the credit already reversed and also taking credit on the duty paid by the employer. The issue is rather important to be decided and it requires to be considered, Tribunal decided the issue by following the earlier decision without any discussion, Tribunal is hereby directed to state the case on the question of law framed by drawing a statement of facts for the opinion of this Court
-
2009 (9) TMI 658
Whether the clause (I) to Rule 57AE of the Rules introduced by the Notification No. 51/2000-C.E. (N.T.), dated 29-8-2001 is clarificatory and procedural in nature and has retrospective application - Whether a certificate issued under Rule 57E for differential duty is a valid document when Rule 57E was not in existence during material time - Whether, in the facts and circumstances of the case, the Tribunal was in error in holding that the assessee was entitled to take modvat credit on the basis of the supplementary invoices and certificates under Rules 57E during April 2000 to August 2000 - Under Section 35-G of the Central Excise Act, which came into force with effect from 14-5-2003 by substitution of the earlier provision by Act No. 32 of 2003, straight away, a provision for an appeal has been made in the statute from every order passed in appeal by the Appellate Tribunal on or after 1st July 2003, appellant submits that the issue involved in this case is covered against the revenue in the case of Home Ashok Leyland Limited, (2007 -TMI - 47977 - SUPREME COURT OF INDIA), reference case petition is dismissed
-
2009 (9) TMI 656
Whether order passed by the Tribunal before the insertion of section 271(1B) to the statute by the Finance Bill, 2008, cannot be said to be erroneous and the amended provisions of section 271(1B) are not applicable in the cases decided prior to the insertion of this amendment - Penalty proceedings under section 271(1)(c) - held that whether satisfaction existed and was not recorded during assessment was not a matter of form but of substance and the absence of satisfaction could not be inferred from the omission to use particular words in the order of assessment. The same could be inferred from overall findings in the order of the assessment. appeal is allowed and the matter is remitted to the Tribunal for fresh decision on the issue of penalty, in accordance with law.
-
2009 (9) TMI 655
Whether Tribunal was justified and right in setting aside the order of the Commissioner of Income-tax (Appeals) for de novo consideration and that too without reverting to the findings given by the Commissioner of Income-tax (Appeals) that 'the provisions of section 44AD are not applicable, not only because the gross receipts are more than Rs. 40 lakhs, but also because the guidance from the provisions of section 44AD cannot be taken as he is a handling and transport contractor of food grains procurement agencies and does not have his own trucks for transportation of foodgrains bags Held that:- section 44AD did not apply. books of account are not maintained. The Commissioner of Income-tax (Appeals) also proceeded on that assumption. There is no discussion or finding that the order of the Commissioner of Income-tax (Appeals) was erroneous. Revenue is unable to rebut the submission that there is no discussion or finding in the order of the Tribunal that the order of the Commissioner of Income-tax (Appeals) was erroneous and reasons for such a finding. order of the Tribunal set aside and remand the case to the Tribunal, appeal is disposed of accordingly.
-
2009 (9) TMI 652
Whether, Commissioner of Income-tax (Appeals) is justified in quashing the Assessing Officer's action of reference under section 131 of the Act to valuation cell and consequently quashing the action under section 147 vis-a-vis assessment of unexplained investment under section 69 of the Act, without considering the merits of the case. Secondly, the action under section 131 is not appealable before the income-tax authorities and. only writ, before the court, is permissible - Since the assessee never had taxable income, the provisions of section 139(1)(b) are not applicable in its case and, therefore, it was not obligatory on the part of the assessee to file return of income. Hence, the assessee never filed its return of income in respect of the year under appeal, assessee has contended that since no proceedings under the Act, were pending at that point of time, the reference itself made to valuation cell by invoking the provisions of section 131(1)(d) by issuing commission were invalid – Held that:- Assessing Officer could only have referred the matter to the District Valuation Officer if independent proceedings were pending with him for the year under appeal in accordance with the decision of the Gujarat High Court in CIT v. Umiya Co-operative [2006 -TMI - 34339 - GUJARAT HIGH COURT], there were no proceedings pending, we confirm the order of the learned Commissioner of Income-tax (Appeals) in quashing the notices issued under section 148 of the Income-tax Act. appeal of Revenue is dismissed.
-
2009 (9) TMI 650
Period of limitation - assessment - search, the two-year period is to be counted on the conclusion of the search as recorded in the last panchnama. The premises of the respondent- assessee were finally searched on March 26, 2002 when certain material was seized and panchnama was also prepared. Thereafter, there was no search at the premises of the assessee. If the material seized by the Revenue, i.e., the carton was opened on a subsequent date and inventory prepared or the CPU seized was opened later on to find out whether it contains any information/data relevant for the purposes of assessment or not, that would be of no consequence. This is the exercise done by the Revenue authorities sitting in their office dealing with the material seized. It cannot amount to "search" as mentioned in the aforesaid Explanation. If this contention is accepted, it would give the Department undue advantage of their own inaction or sluggishness and can be misused by showing any such subsequent date of in-house investigation into the seized material in their records at their whim to bring the case within limitation. assessment was time barred. No question of law arises in this appeal. Dismissed.
-
2009 (9) TMI 647
Reassessment - Addition - Notice u/s 148 - Computation of period of four years - Held that:- the observation of the CIT(A) is patently not correct and against the provisions of law. - four years have to be counted from the end of the assessment year and not from the date of passing of the assessment order as stated by the CIT(A). In the instant case, admittedly, the assessment year ended on 31st March. 1996 and, therefore, the notice issued on 20th March, 2002 under s. 148 was served upon the assessee on 28th March, 2002 was beyond four years from the end the assessment year. Change of opinion - Reason to believe - assessee had disclosed and specific information was submitted at the time of original assessment proceedings. - the reopening of the assessment, in the instant case was bad in law and thus, the consequential order passed under s. 143(3) r/w s. 147 of the Act dt. 30th Sept., 2002 is liable to be quashed.
-
2009 (9) TMI 644
Gift - Deemed gift - Whether on the facts and circumstances of the case, the order of the AO under s. 15(3) r/w s. 16 of the GT Act; 1958, proposing gift-tax on a sum of Rs. 60,14,109 be quashed or it may be held that provisions contained in s. 4(1)(a) of the GT Act were rightly invoked by the AO and the matter should be remanded back to the AO for computing the value of gift on the date of gift i.e., 1st April, 1994 in the manner laid down in Sch. II in the GT Act, 1958 - Held that:- there is no deemed gift within the meaning of s. 4(1)(a) of the GT Act - the assessment order made under the GT Act imposing gift-tax on a sum of Rs. 60,14,409 should be set aside.
-
2009 (9) TMI 642
Waiver of pre-deposit - Cenvat credit - The event management service has been availed in connection with sales promotion and being linked with the sales promotion activity. It is, prima facie, covered by the definition of the ‘input service’ in Rule 2(l) of the Cenvat Credit Rules, 2004 An amount of Rs. 55,761/- has been denied on the ground that the nature of the service is not mentioned on the invoices, but as mentioned by the learned Counsel for the appellant, from the invoices, it appears that these services are for supply of the manpower, in respect of which service tax has been paid by the service, providers and this service is, prima facie, also covered by the definition of the “input service” As regards the rent of bus for staff, I agree with the appellant’s Counsel that this is tour operators service which has to be treated as input service as this service was used by the appellant for bringing their staff to the factory and back and also for other purposes in connection with their business - Decided in favor of the assessee
-
2009 (9) TMI 639
Reopening - Waiver Of Interest By Government - permission from the Committee on Disputes (CoD) to file these appeals - Book Profit u/s 115JA - Reduction of provisions from net loss - AO does not have the jurisdiction to go behind the net profit shown in the P&L a/c except to the extent provided in the Explanation to s. 115J - the statutory auditors have given a qualified certificate, more particularly the non-incorporation of waiver benefits - since the details of capital restructuring proposal approved by the Government of India have been disclosed in the notes on accounts, any reference made to the P&L a/c shall include such notes also - these three provisions can only be classified as the provision made for diminution in the value of assets. Hence all these three provisions fall outside the purview of cl. (c) of Explanation to s. 115JA - The provision for future losses does not relate to any liability. According to paras 55 and 56 of AS-29, no provision is required to be made for future operating loss, as it does not meet the definition of liability. Once it is not considered as a liability, the question of adding the same for computing book profit under s. 115JA does not arise product warranty falls within the definition of a contingency, which means that though it is a liability as on the date of balance sheet, in view of the uncertainty surrounding the claims, it would fall under the category of "unascertained liability". Hence it is liable to be added to the book profit as per cl. (c) of Explanation to s. 115JA - except the provision made for guarantee repairs amounting to Rs. 1.10 crores, all other provisions would fall outside the purview of s. 115JA - Appeals are partly allowed
-
2009 (9) TMI 637
Reopening - Income escaping assessment - Disallowance u/s 40(b) - Computation of book profit for the payment of remuneration to partners - Inclusion of Interest on IT refund and FDR - Business income or other sources - Held that: - we are satisfied that the AO could have had such belief and therefore, the learned CIT(A) rightly has upheld the action under s. 147, with which, we are also in agreement as this Bench has already been taking a consistent view that any interest income on the funds placed with the banks and the interest earned thereon, should be taxed only under the head income from other sources and not as business income especially when earning of interest is undisputedly not the business of the assessee. - Reopening of assessee held as valid Regarding remuneration made under s. 40(b) - computation of book profit - The AO was required to have computed the book profit as per the specific definition given under Expln. 3 below s. 40(b). Consequently therefore, the interest income of Rs. 7,63,997 be not excluded and the net profit as declared by the appellant be considered. - decided in favor of assessee. Regarding dis allwance of traveling expenses - What the learned AO alleged appears to be a suspicion without substantiating it. No specific instance of disallowable nature in the claimed travelling expense, has been shown. The impugned disallowance is hereby deleted.
-
2009 (9) TMI 635
Disallowance - Revenue or capital expenditure - Regarding expansion of its existing business by setting up a weaving and spinning unit for manufacture of fabric and textiles - Since the setting up of the said proposed unit was abandoned during the previous year relevant to the assessment year 2000 -01, related project expenses amounting to Rs. 64,47,855 were written off and claimed deduction in computation of income for the assessment year 2000-01 under section 37(1) of the Act - The mere fact that the unit was proposed to be set up in the State of Karnataka, which was geographically distant from the existing unit of the appellant, could not be a ground to hold that what was proposed to be set up was a different unit altogether - The proposed business was not an individual business but vertical expansion of the present business - Since the project was abandoned, no new asset also came to be created In the previous year relevant to the assessment year 2000-01, the payment made to Mc. kinsey was claimed deduction by the appellant - Tribunal has accepted the fact that even when there was no formal written agreement with M/s. McKinsey and Co., the report was submitted by the said company for the task assigned - Once it is accepted as a fact that the assignment given to the said consultants was for the purpose of improving operational efficiencies and was not to incur any enduring benefit in capital field but to carry on the existing business more efficiently and profitably, the irresistible conclusion which follows is that such expenditure was allowable as business expenditure - All the appeals are dicided in the favour of the assessee
............
|
9911796707
