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Case Laws
Showing 461 to 480 of 1191 Records
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2011 (3) TMI 1340
Revised return - Income escaping assessment - Assessee not computed its income u/s 115JA - Held that:- The finding of the AO is that as per Section 115JA, the assessee did not have any business loss or unabsorbed depreciation to be carried out to Assessment Year 1998-99. Further, the assessee has claimed that an accumulated royalty which was debited in the P & L account for the Assessment Years 1991-92 to 1997-98 was written back to the P & L Account for this assessment year since the royalty was waived by their Collaborator M/s. Kone OY Finland. The assessee considered this royalty written back in the 'P & L Account Appropriation Account', instead of crediting the same in the P & L Account. Since the royalty had been debited to P & L Account from the accounting year ending 31.3.1991 onwards, the waiver of royalty is clearly a taxable income and has to be treated as income and the book profit u/s. 115JA of the Act has to be arrived at accordingly - there was a reason to believe that the income assessable to tax has escaped assessment - Decided against the assessee
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2011 (3) TMI 1339
Demand - Provisional assessment - The case of the petitioner that, till October, 2010, the duty was being assessed, on the basis of the 'declared value' which substantially got changed, thereafter - Held that:- Taking note of the fact that the final assessment order had already been passed in W.A No.2048//2010 and connected cases, it was observed by the Division Bench that the concerned assessee had to pursue the statutory remedy, if he was aggrieved by the final assessment - respondents are directed to finalise the proceedings and pass final assessment orders, in respect of the pending bills of entries, after considering the entire materials on record forthwith - Decided in favor of the assessee by way of remand.
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2011 (3) TMI 1338
Provisional assessment - Held that:- What is clear from Section 18(1) read with the above Regulations is that the Officer could make provisional assessment and release goods under Section 18 of the Act pending final adjudication only after ensuring that the actual duty that could be levied later will be recoverable from the party - Regulation 2 makes it clear that besides remittance of the admitted duty in terms of the claim of the importer / exporter the officer can demand payment of duty up to 20% of the duty provisionally determined by him which is over and above the admitted duty payable in accordance with the claim of the party and assessed by the Officer - credentials of the importer / exporter and such other matters should weigh with the Department in relaxing the condition for security, which in the normal course should be Bank Guarantee.
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2011 (3) TMI 1336
Provisional assessment - writ of mandamus directing the respondents to clear the consignment of 'betel nuts' imported by the petitioner as per Ext.P2 and Ext.P3 Bills of Entry, on the basis of Ext.P6 judgment passed by the CESTAT - petitioner submits that the petitioner has already obtained all the relevant documents to substantiate the case - The prayer of the petitioner is to direct the concerned respondent to finalise the assessment within a time frame - Held that:- Respondents are directed to have the assessment within 'seven days' and a speaking order as contemplated under the relevant provisions of the Customs (Provisional Duty Assessment) Regulation, 1963 shall be passed within 'two weeks' thereafter; also considering Ext.P7, if the same is applicable to the case in hand.
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2011 (3) TMI 1335
Condonation of delay - delay in filing the returns due to delay caused in getting the required TDS certificates - Circular No.13/2006 dt.22.12.2006 - Held that:- It is the CBDT which is the competent authority to look into these matters and to take an appropriate decision - Decided in favor of the assessee by way of remand
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2011 (3) TMI 1334
Penalty u/s 221(1) - Held that:- The penalty notice issued is premature consedring the pendency of the appeals and the stay petitions - 2nd respondent will consider Exts.P5(a), P6(a) and P7(a) stay petitions filed with notice to the petitioner and pass orders thereon as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment along with a copy of this writ petition - Writ petition is disposed of.
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2011 (3) TMI 1333
Exemption u/s 10A denied - acquisition of majority shares by the American company of which respondent was a subsidiary company - Held that:- The company itself was set up in the previous year relevant for the assessment year 2001-02 and therefore there can be no transfer of the assessee to foreign company because the respondent company was really a subsidiary company in India of the American company from the very beginning of relevant assessment year. We find force in the finding of the Tribunal that the denial of assessee's claim of exemption on the profit earned from the export of computer software under Section 80HHE on technicalities as untenable - Decided in favor of the assessee.
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2011 (3) TMI 1332
Validity of addition of proportionate expenditure attributable to exempted income in the course of completion of book profit assessment under Section 115JA of the I.T. Act - Held that:- While hearing another appeal filed against similar assessment of another bank, considering the issue and in that judgment the matter was remanded to AO to specifically consider the disallowance with reference to sub-clause (f) of Explanation to Section 115JA which was not considered by the assessing officer in that case. However, in this case, disallowance is specifically made with reference to the above provision, which is only Rs. 1 crore. Therefore following the judgment we allow the appeal filed by the revenue by reversing the order of the Tribunal and restoring the order of the first appellate authority confirming the disallowance to the above extent.
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2011 (3) TMI 1329
Reassessment - Circular No. 1/1990-91 - Held that:- As it appears that this petitioner firm stood dissolved much earlier and not in the business any longer - nobody appeared on behalf of the petitioner - The writ petition is accordingly dismissed as infructuous and also in default because of no representation on behalf of the petitioner
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2011 (3) TMI 1328
Deemed dividend - Interest free security deposit - Shares instead of cash - Reopening - Held that:- No doubt, notice was issued after the expiry of six years, since the assessment was reopened on the basis of "directions" given by the Appellate authority i.e. the CIT(A), Rohtak, the limitation period, as prescribed under Section 149 of the Act was not applicable, having regard to the provisions of Section 150(1) of the Act.
Facts demonstrated above would clearly reveal that admittedly as on 16th March, 1998 when the transaction of lease was entered into between the assessee and the Company, the share holding of the assessee in the Company was much less than 10% herefore, by no stretch of imagination can qualify as deemed income - Decided in favor of the assessee
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2011 (3) TMI 1326
Reference to valuation officer - Rejection of book of accounts - whether the Tribunal was right in taking a view that in the absence of rejecting the books of account which are audited, the Assessing Officer cannot resort to estimation - Held that:- Supreme Court in the case of Sargam Cinema v. CIT [2009 (10) TMI 569 - Supreme Court of India], wherein the Supreme Court has held that the assessing authority cannot refer the matter to the Departmental Valuation Officer without first rejecting the books of account. In favour of assessee.
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2011 (3) TMI 1322
Exemption u/s 10(15)(iv)(fa) - interest on the FCNR deposits - Status of individual - Two application for revision is rejected u/s 264 - It was submitted that merely because in the original return filed by him the petitioner has shown certain amount to be his income, does not mean that the said error cannot be rectified by the respondent - Held that:- Commissioner was not justified in dismissing the said application merely on the ground that it was the petitioner who had shown the said income to be his income for the year under consideration. It may be safely assumed that the said assertion has crept in on account of inadvertent error on the part of the draftsman. In the circumstances, the court is not inclined to dismiss the petition on the ground of having made an incorrect statement on oath.
The petitioner has set out the details of his stay in India, which clearly indicate that the conditions precedent for the petitioner to be said to be resident in India in the year under consideration are not satisfied. From the details given the revision application, it is apparent that though the second condition is satisfied, viz., the petitioner has been in India for at least 730 days in the previous seven years ; the first condition, viz., that the petitioner should have been residing in India in nine out of ten preceding years, is clearly not satisfied. Besides, as is apparent from the order made by the Commissioner (Appeals) in respect of the preceding two years and the subsequent two years, wherein the Commissioner (Appeals) upon appreciation of the evidence on record has, as a matter of fact, found that the petitioner was not ordinarily resident during the said periods. The present assessment year falls between the said assessment years. Hence, it is apparent that the petitioner was "not ordinarily resident" for the year under consideration. The Commissioner was, therefore, not justified in rejecting the application under section 264 - Decided in favor of the assessee.
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2011 (3) TMI 1317
Demand - Classification - Circular No. 924/14/2010-CX., dated 19th May, 2010 - plant comprised of composite machinery consisting of par-boiling machinery, drier plant and rice mill - the noticee had also submitted an affidavit dated 9th November, 2010 stating that the goods manufactured and supplied by their firm were used exclusively by the rice mills - Held that:- The par-boiling and drying plants have an independent function from that of rice mill and merely because the rice mill plant also includes par-boiling and drying plant in the appellants establishment that itself cannot transform the machinery or the plant comprising of par-boiling and drying machinery into a composite machinery forming part of the rice mill.
Obviously the Commissioner in the order dated 9th August, 2010 on the basis that there was new material placed before the Commissioner to justify a different view from the one taken in relation to the earlier period has accepted the classification as proposed by the assessee which is contrary to the view taken in the earlier order for the earlier period - therefore, no infirmity in the classification for the product in question under Chapter Heading 8419 - Decided in favor of the assessee
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2011 (3) TMI 1316
Refund for cess - principles of unjust enrichment - appellants claimed that as per the contracts with their foreign buyers, they were liable to bear export duties, taxes, etc. The invoice price was a composite price and it could be inferred that the duty burden had not been passed on. - Held that:- As find that from the vrious definition it is not possible to arrive at a definite conclusion that the FOB value includes the cess paid on export of rice especially in cases where the contract with the foreign buyer specifically provided that the export duty/taxes etc. were to the account of the seller. In all the cases except in the case of M/s. Al Gyas Exports Pvt. Ltd., the appellants have furnished copies of the relevant contracts containing the above clause. Unless the Department is satisfied on examination of the documents showing remittance received by the appellants, the finding in the impugned order that the FOB value recovered included the impugned cess cannot be sustained. As it is, there is no reliable finding in the impugned order to conclude that the disputed cess amounts had been recovered as part of the FOB value.
There is no dispute that provisions in the Act pertaining to levy, collection, refund, etc., apply to levy, collection, refund, etc., of cess levied under the APFPEC Act. As provisions relating to levy and collection are borrowed, the provisions relating to short levy, short payment, concomitant disputes and the remedies provided in Sections 128 and 129D(2) of the Act should also be held to have been borrowed for the purpose of APFPEC Act by virtue of the above sub-section. Therefore, we reject the objection raised by M/s. Al Gyas Exports Pvt. Ltd.
As regards the claim that a refund claim for excess duty paid can be validly made without challenging assessment under the Act relying on the judgment of the Apex Court in the case of Karnataka Power Corporation Ltd. v. CC (Appeals) [2002 (4) TMI 79 - SUPREME COURT OF INDIA] it is note that a Larger Bench of the Tribunal had considered the ratio of the above decision and the decisions of Flock India case [2000 (8) TMI 88 - SUPREME COURT OF INDIA] and Priya Blue Industries case [2004 (9) TMI 105 - SUPREME COURT OF INDIA] and held that a refund claim was not maintainable unless the assessment order in pursuance of which duty paid was challenged and modified/set aside. As regards the challenge to the impugned order for the reason that the appeal disposed by it had been filed following review initiated after the period prescribed, it is observed that this ground concerns facts. This ground is taken first in the proceedings. The ground is not substantiated with details of the relevant dates, etc. Moreover, the assessee had participated in the proceedings before the Commissioner (Appeals) without raising this objection. In the circumstances, reject the challenge to the impugned order raised by M/s. Al Gyas Exports Pvt. Ltd. Appeal dismissed.
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2011 (3) TMI 1315
Penalty u/s 28 - Time limitation - notice imposing penalty is issued immediately after 5-6 years - short landing of the cargo since there is a Form/Declaration field by the petitioner himself - Held that:- As there is loss of revenue to the state in not initiating action at the inception - The petitioner has undertaken under clause (7) of the Agreement that for any contravention of the provision of the Customs Act, petitioner is responsible - Petitioner is directed to deposit the balance amount after the reduction of Rs. 5 lakh from the total amount.
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2011 (3) TMI 1311
Application for revision - Classification - whether mere exceptional or possible use of the bedspreads in place of quilt can not make the product a quilt so as to be covered under the Heading No. 9404 - Held that:- As from Explanatory Notes of 9404, it is clear that the goods more specifically classifiable under 9404. Government further observes that the quilts are not always made of bulky stuffing. There are various types quilts available in market, which have very light stuffing - Decided against the assessee
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2011 (3) TMI 1310
Difference in duty between the show cause notice and the admitted amount - Demand raised - Held that:- As the first respondent has failed to consider the report of the Commissioner (Investigation) and pass appropriate orders and simply shirked its duty by throwing the blame on the petitioner as if the petitioner had been making disclosures many a time each at variance with the other. As pointed out earlier there has been only one disclosure at the time of admission. The clarifications given by the petitioner is only at the time of investigation by the Commissioner (Investigation) who was duly authorised by the first respondent in terms of Section 127C(6). Such clarification or statement cannot be equated to disclosure. Therefore, it is for the first respondent to accept the disclosure originally made on the basis of the investigation report and come to the conclusion as to what will be the appropriate amount that should be demanded by way of duty and what will be the penalty and interest which should be levied for the purpose of settlement. In this case, this court finds that the Settlement Commission has grossly mislead by itself by failing to consider the investigation report which it had called for and thereby fell into error by accepting the untenable plea of the Revenue that there are inconsistencies in the disclosures. Such finding is based on no evidence and contrary to the records. Merely because there is a huge difference in duty between the show cause notice and the admitted amount, the case of the petitioner cannot be thrown out.
As the first respondent failed to consider the vital and relevant documents viz., the investigation report which had been called for by the Settlement Commission before deciding the issue finally. The non-application of the mind of the first respondent on this vital relevant document clearly goes to the root of the matter. The order impugned suffers from error apparent on the face of the records - matter remitted back to the first respondent for reconsideration.
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2011 (3) TMI 1306
Demand - differential duty - Whether amount received in the form of Technical know how will be included in the assessable value - Rule 6 of the Valuation Rules - Held that:- Agreement allowed the noticee to continue to use technical know-how for manufacture of the preparations under similar contracts for third parties - in the absence of a computation mechanism, cost of technical know-how could not be included in the value of the impugned preparations for determining the duty liability - Decided in favor of the assessee.
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2011 (3) TMI 1305
Misappropriation of goods - show cause notice dated 22-12-98 was issued on the ground that the export obligation has not been fulfilled and gold procured duty free has not been accounted for and accordingly duty was sought to be demanded from M/s. MMTC, the importer and penalties were sought to be imposed on M/s. MMTC - assessee contested that there is no evidence of the appellant director personally removing the gold and taking gold or gold ornament from the strong room of the NOIDA Processing Zone - Held that:- While there is no direct evidence, substantiating the charge of clandestine removal by the appellant company and involvement of the appellant director in such clandestine removal, their failure to account for duty free gold is clearly established - the appellants dealt with 15 Kgs. of gold which are liable for confiscation, in view of non-fulfilment of export obligation - Considering the entire facts & including the facts that appellant company was a job worker and that the Commissioner has upheld the demand of duty against M/s. MMTC, deem it appropriate to reduce the penalty imposed on the appellant company from Rs. 25 lakhs to Rs. 5 lakh and penalty imposed on the appellant director from Rs. 25 lakh to Rs. 3 lakh.Decided against the assessee
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2011 (3) TMI 1304
Application for stay - recovery calculated @10% of the price of exempted goods payable at the time of clearance - benefit of provision under Rule 6(6)(vii)(a) of the Cenvat Credit Rules, 2004 or Sl. No. 91 in the Table appended to Notification No. 6/2006-C.E.- Held that:- The benefit under both the provisions is to the supplier, who has succeeded in getting the contract of supply of goods by having participated in the International Competitive Bidding - Appellants are merely supplying the goods to another firm, who is successful in obtaining the project work by taking part in the International Competitive Bidding in relation thereto - appellants cannot claim benefit either under the project comprised under Rule 6(6)(vii)(a) of the said Rule or under notification in question - appellants have to satisfy the requirements of rules under the Cenvat Credit as specified under the impugned order, more particularly sub-rule (3)(b) of Rule 6 of the Cenvat Credit Rules, 2004 - no prima facie case having been made out for total waiver of the amount demanded under the impugned order - Decided against the assessee
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