|
Advanced Search Options
Case Laws
Showing 441 to 460 of 858 Records
-
2010 (3) TMI 838
Block Assessment - Purchase of flat - source of income - receipt of on-money by the developers - The assessee in his initial reply admitted before the Assessing Officer that the flat in question has been purchased by him in his name for a sum of Rs. 3,73,000. However, the seized material proves that it was purchased for a sum of Rs. 6,21,000. The amount of Rs. 3,73,000, according to the assessee was paid by cheque. The builders in their statements have admitted to have received on-money from purchasers for sale of the flats. The seized material is, therefore, supported by the statements of the builders. Ultimately, when the assessee was confronted with the seized material, he has changed his version and explained that remaining amount of Rs. 2,48,000 has been paid by him out of Rs. 2,50,000 contributed by his father. - Held that:- the authorities below were justified in holding that the assessee has failed to explain the source of investment in the flat in a sum of Rs. 2,48,000. Considering the facts and circumstances noted above, and the facts that no entry is also recorded in the account of the assessee in respect of the amount contributed by the assessee's father - Decided against the assesssee. Additional evidence - Held that:- since the assessee has not raised this ground either before the Assessing Officer or before the learned Commissioner of Income-tax (Appeals) and no specific ground is taken in the grounds of appeal before the Tribunal, therefore, submission of the assessee may not be entertained which also requires verification of facts. - request for additional ground rejected.
-
2010 (3) TMI 836
Search and seizure under section 132 of the Income-tax Act - block assessment under section 158BC of the Act - bank guarantee - recovery of tax - default - attachment of property - held that:- Default would arise only when there is a demand. Admittedly, on November 18/21, 2005, the assessee was not in default or deemed default of any tax due. Thus, no order or direction could have been given for such payment to the bank. - section 226(3) of the Act is not attracted Regarding attachment u/s 281B - held that:- The language of the above provision is plain and simple. It provides for the attachment of the property of the assessee only and of no one else. The golden rule of interpretation of statutes is that the statute has to be construed according to its plain, literal and grammatical meaning unless its leads to absurdity. The fixed deposits of the petitioners not being the property of the assessee as such were not open to attachment. Action of the bank - held that:- the attachment was illegal and does not have the effect of authorising payment ; and had lapsed on the expiry of six months from the date of attachment. Thus, the action of the bank in releasing the amount under the fixed deposits was patently illegal and in clear violation of the terms and conditions of the contract of the bank guarantee. While allowing writ petition, bank directed to refund the petitioners the amount of their fixed deposits which were encashed on November 1, 2006, within a period of one month with simple interest at 8 per cent. per annum, with effect from November 1, 2006, till the date of refund. - bank at liberty to claim the amount with interest from the department.
-
2010 (3) TMI 834
Retirement under the voluntary retirement scheme 2000 - Whether application for retirement under the voluntary retirement scheme 2000 could be rejected by the appellant bank even after denying promotion - First Division Bench, passed a order thereby rejecting the prayer of the respondent No. 1 for voluntary retirement - Held that:- decision relied upon by the Referring Bench in support of Reference merely reiterates principle of judicial decorum of following the precedent of a co-ordinate Bench except by way of reference to a larger Bench but by taking aid of such decision, a Court cannot overcome the principles of res judicata on an issue of fact or even an issue of mixed question of law and fact which is not only binding upon the parties but also upon the Court subsequently dealing with the concluded issue, question formulated by the Referring Bench is not a pure question of law but basically an issue of fact already decided in the facts of the case by the First Division Bench, Reference is competent (sic) and accordingly, Reference return to the Referring Bench without deciding the issue framed for the reasons discussed above.
-
2010 (3) TMI 833
Power to dismiss - Whether CESTAT has the power to dismiss the appeal for non appearance of the appellant and also to dismiss the application for restoration of the appeal made by the appellant - Held that:- Tribunal has no power to dismiss an appeal for non-appearance of the appellant and that, even in absence of the appellants, the appeals ought to have been decided on merits Delay in filing appeal - Delay of seven years caused in making the applications for restoration was that the sole owner of the unit was unwell and was unable to conduct the affairs of the manufacturing unit in the usual manner; that no supporting documentary evidence to indicate that the owner was in fact unwell and was unable to conduct the affairs of the manufacturing unit has been produced. - Held that:- CEGAT is concerned, the same is not entertained as being time barred as there is a considerable delay in preferring the appeals, in absence of any legal infirmity in the impugned order of the Tribunal, no question of law, as proposed or otherwise, much less any substantial question of law can be stated to arise, appeals are, accordingly, dismissed
-
2010 (3) TMI 832
Cenvat credit - Revision application - Rebate claim - during investigation by Central Excise Authorities, it was revealed that the manufacturer-supplier of goods M/s. Sofina Fashions had not done any manufacturing at the registered premises and had issued bogus duty paying documents - The Central Board of Excise and Customs has clarified in its Circular No. 766/82/2003-CX., dated 15-12-03 as under :“Para 5 On the issue of availment of credit by the user manufacturer, it is clarified that action against the consignee to reverse/recover the cenvat credit availed of the such case need not be resorted to as long as bona fide nature of consignee’s transaction is not in dispute” - The said provision of the circular implies that bona fide nature of transaction between the merchant-exporter and supplier-manufacturer should not be in dispute, the goods were not manufactured by the manufacturer-supplier who issued bogus duty payment documents. So the lower authorities have rightly observed that duty paid character of goods exported was not proved. As such the rebate claim was rightly rejected, Government observes that there is no infirmity in the impugned order-in-appeal upheld, Revision application is rejected being devoid of merit.
-
2010 (3) TMI 830
Revision application - applicant has not followed the procedure as prescribed in the Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 - Held that:- Government observes that when the goods have been exported under the supervision of the Central Excise officers and proof of export has duly been accepted by the department, non observance of the procedure of Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 for denying the benefit of export and confirming the recovery of the duty on goods exported is not justified especially when this is no ambiguity regarding the identity and export of the said goods to the satisfaction of the Central Excise and Customs officers. These are Catena of judgment of various judicial forum including reversionary authority wherein it has consistently been held that the substantial benefit to exporter should not be denied due to procedural/technical lapses especially when there is no dispute regarding the actual export of the duty paid goods, order-in-appeal set aside and order-in-original upheld, Revision Application succeed in above terms.
-
2010 (3) TMI 829
Cenvat credit - whether assessee is entitled to the benefit of MODVAT credit under Rule 57-A of the Rules - product is such an eatable, which would ultimately lose its quality and taste, if not preserved by adequate packaging. Therefore, it requires a particular nature of packing in order to preserve its quality, the packing material in respect of which, MODVAT credit is claimed, is a necessary item which would fall within the scope of provisions of Rule 57-A of the Rules – Held that:- respondent is entitled to claim MODVAT credit with regard to the secondary packing materials. it is not that all packing material could be considered for the purpose of MODVAT credit as an input and we clarify that keeping in mind the nature of the product in the instant case, i.e. Biscuits, the relief granted to the respondent by the Tribunal, is just and proper, Appeal is accordingly dismissed.
-
2010 (3) TMI 828
Higher claim of depreciation to the assessee on the basis of the valuation - claim was not entertained by the Assessing Officer on the ground that in the absence of any revised return, the claim could not be processed - Held that:- power of the Assessing Officer to entertain a claim for deduction otherwise than by filing a revised return. The apex court has made it clear that "the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal under section 254 of the Income-tax Act, 1961", contention based on application of decision in case of Goetze (India) Ltd. (2006 - TMI - 5171 - SUPREME Court) is misconceived in law, none of the grounds pleaded or urged at the time of hearing does the impugned order of the Tribunal give rise to any question of law, much less a substantial question of law, appeal is accordingly dismissed
-
2010 (3) TMI 824
Levy of penalty under section 271(1)(c) - Denial of the assessee's claim for set-off of brought forward business loss against the income assessed under the head "Capital gains" -
Held that:- There was a bona fide disclosure of all the particulars and mere denial of the assessee's claim of set-off will not attract the penal provisions as contained under section 271(1)(c). He placed reliance on the recent decision of the Supreme Court in the case of CIT v. Reliance Petroproducts (P.) Ltd. (2010 - TMI - 75701 - SUPREME COURT) , wherein it was observed that making an incorrect claim in law cannot tantamount to furnishing of inaccurate particulars, no penalty is leviable under section 271(1)(c) of the Income-tax Act. - Thus appeal of the assessee is allowed.
-
2010 (3) TMI 823
Unjust enrichment – Whether Tribunal is justified in confirming the order of the Commissioner (Appeals), inter alia, holding that examination of the issue in case of erroneously refunded duty amount under Section 28 of the Customs Act, 1962 on the Doctrine of Unjust Enrichment would amount to review of order of the adjudicating authority sanctioning the refund - adjudicating authority was of the view that the doctrine of unjust enrichment had not been examined while making the order of refund, the proper course to adopt was to take recourse to the provisions of Section 129D – Held that:- Commissioner (Appeals) was justified in holding that the show cause notice issued by the adjudicating authority on the ground of unjust enrichment, would amount to review of his own order which was not permissible, order of the Tribunal whereby it has confirmed the findings recorded by the Commissioner (Appeals) does not suffer from any legal infirmity so as to warrant interference. No question of law, much less any substantial question of law can be stated to arise out of the impugned order of the Tribunal, appeal is accordingly dismissed.
-
2010 (3) TMI 820
Waiver of pre-deposit - order of the tribunal - Held that:- Tribunal had considered the merits of the case and that mere absence of reference to the decision of the Coordinate Bench per se does not mean that the Tribunal had not considered the contention of the petitioner, writ petition is disposed of, application for waiver rejected
-
2010 (3) TMI 818
Travel agency services - taxability - business auxiliary service u/s 65(105)(zzb) or travel agency service - respondent is engaged in booking tickets and making arrangements for travel of passengers under agreement - respondent is paid commission – Held that:- services can not be charged under business auxiliary services - decided in favor of assessee.
-
2010 (3) TMI 816
Penalty - contention of the assessee that the penalty provision in terms of S. 76 of the Finance Act proposing to levy penalty at the rate of Rs. 100/- day has come into effect only from 10-9-2004 and that the respondent herein had failed to apy service tax for the period august 2001 to October 2002 and considering the said period, the Revenue cannot levy penalty at the rate of Rs. 100/- per day by relying upon the provisions of S. 76 as it is only prospective in nature and not retrospective - Held that:- Revenue is empowered to levy penalty at the rate of Rs. 100/- per day if the assessee fails to pay duty only in respect of the period from 10-9-2004 onwards and not prior to the said date, As the duty payable in this case is prior to 10-9-2004, appeal filed by Revenue dismissed
-
2010 (3) TMI 814
Pre-deposit for entertaining the appeal - respondent shows that the petitioner had not shown any financial difficulties that stand in the way of remitting the entire amount. They have also stated that the petitioner has collected service tax amount on the gross value charged by them, but have remitted only part of it to the Exchequer. Hence, the Tribunal held that the petitioner should be directed to deposit the entire demanded - Held that:- petitioner be directed to deposit 50% of the disputed amount, writ petition is disposed of
-
2010 (3) TMI 813
Reference to Valuation officer - A perusal therefore reveals that under section 50C the value adopted by stamp valuation authority or assessed for the purpose of section 48, shall be deemed to be the full value of the consideration received or accruing as a result of the transfer - Section 50C is a measure provided to bridge the gap as it was found that assessees were not correctly declaring the full value of the consideration or in other words resorting to the practice of undervaluation - It is not the case of the petitioner that the valuation could not have been done under the provisions of the Bombay Stamp Act, 1958 and/or that the Collector acted contrary to law in levying stamp duty under Schedule I article 5(ga) - Petition is dismissed
-
2010 (3) TMI 810
Trust running a school in a village without seeking necessary prior permission to run this school - CIT rejected the application for registration under 12AA. - Held that:-the objects of the trust are nothing but only charitable because running of a school is only a charitable activity. It was argued that if the main object of the trust is charitable and even if the other objects are not implemented, it is not material for grant of registration. - It was submitted at the end that the trust is genuine and carries on educational activities which are charitable in nature, hence registration under section 12A(a) should be granted to it.
-
2010 (3) TMI 809
Penalty under Section 76 and Section 78 - simultaneous imposition of penalty under Sections 76 and 78 - Held that:- case stand settled in favour of the Revenue by the judgment of Hon'ble Kerala High Court in the case of [Krishna Poduval (2005 - TMI - 75949 - Kerala High Court)], penalties 76 and 78 can be imposed simultaneously. order setting aside the penalty on the respondent under Section 76 of the Finance Act, 1994 is not correct, Revenue's appeal is accordingly allowed.
-
2010 (3) TMI 806
Accrual of Interest income - Deep Discount Bond - AO observed that interest accrues year after year and not accrue all of a sudden at the time of redemption/maturity. - Held that the assessees are entitled to recognize the interest income attributable to 8 per cent Reserve Bank of India Bonds on cash basis to be reckoned at the time of redemption of the Bonds - Decided in favour of assessee.
-
2010 (3) TMI 804
Waiver of penalty - assessee in order to buy peace and to avoid further litigation surrendered the amount to tax – Held that:- The assessee has offered an explanation which has not been found false by the Assessing Officer. - The explanation of the assessee that whatever was returned by him was correct but because the books could not be produced due to plausible reason which explanation has not been found to be not bona fide and the Assessing Officer has not even doubted the same, the other condition of the explanation of section 271(1)(c) is also not established. So, when there is no presumption, the question of rebuttal does not arise or in other words, the presumption stands rebutted. - Decided in favor of assessee.
-
2010 (3) TMI 803
Penalty - Revised return - LTCG on sale of shares of M/s. Maruti Comforts and Inn Pvt. Ltd. was declared by the assessee at Rs. 52,89,898 and after setting off Short Term Capital Loss of Rs. 17,92,461, a sum of Rs. 34,97,437 was offered to tax as LTCG - AO on verification found that the cost of acquisition of shares was taken by the assessee at a higher amount of Rs. 210 per share as against the actual cost of acquisition of Rs. 40 per share - assessee has not only failed to substantiate his explanation as regards the higher cost of acquisition of shares claimed wrongly by him while computing the LTCG, but has also failed to show that the mistake committed by him while making the said wrong claim was bonafide - Decided against the assessee Penalty u/s 271(1)(c) - held that:- the assessee has not only failed to substantiate his explanation as regards the higher cost of acquisition of shares claimed wrongly by him while computing the LTCG, but has also failed to show that the mistake committed by him while making the said wrong claim was bona fide. Moreover, as already observed by us. even all the particulars relating to the said claim were not fully furnished by the assessee in the return of income originally filed. - Penalty confirmed - decided against the assessee.
............
|
9911796707
