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Case Laws
Showing 481 to 500 of 1047 Records
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2011 (1) TMI 1038
U. P. Jal Nigam, Lucknow - whether a "local authority" or "company"? - Held that:- the powers and functions of U. P. Jal Nigam are akin to the various powers and functions amongst others of the municipalities or district boards. It has already been demonstrated that the Jal Nigam was established to improve the water supply and sewerage services in the State, which was being performed earlier by the municipal bodies. Due to rapid growth in the population and vast expansion of urbanization and fast development of science, it appears that the State Government though it fit to entrust the work of water supply and sewerage services to a specialized body (the U. P. Jal Nigam), instead of leaving it in the hands of unspecialized persons, discharging the municipal functions. It has not been found as a fact even by the Income-tax Appellate Tribunal that the U. P. Jal Nigam has been formed to trade in water supply or it is a trading organization. The constitution of the Jal Nigam shows that it has popular representatives as its five members are amongst the elected representatives. It has got power of superintendence over the Jal Sansthans and the Jal Sansthans have been held to be "local authority" - thus decided U. P. Jal Nigam, Lucknow, is a "local authority".
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2011 (1) TMI 1037
Reopening of assessment - beyond a period of four years from the end of the relevant assessment year - Held that:- No failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment year under consideration, facts of the present case would stand squarely covered by the decision of this court in the case of CIT v. Bipin Vadilal (1999 (4) TMI 77 - GUJARAT High Court) inasmuch as the belief as to escapement of income chargeable to tax from assessment was not entertained by the Assessing Officer on the ground that there had been failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment and as such, no proceedings could have been initiated under section 148 after the expiry of a period of four years from the end of the relevant assessment year, assessment barred by limitation, assumption of jurisdiction by the Assessing Officer itself is invalid, petition succeeds and is accordingly allowed.
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2011 (1) TMI 1036
Pre-emptive purchase of land - absence of notice to show cause to the petitioner - violation of the provisions of section 269UC of the Act - dismissal of revision petition filled - lack of territorial jurisdiction - Held that:- The notification issued under the Income-tax Act vests jurisdiction on the Appropriate Authority at Delhi, to initiate action in respect of transactions relating to properties both at Delhi and Faridabad is also relevant. In such circumstances, merely because the property in question is situated at Faridabad would not disentitle the courts in Delhi to entertain a complaint pertaining to transfer of such a property. The contention of the counsel for the petitioner that the complaint is liable to be returned at the threshold, on account of lack of territorial jurisdiction of the courts at Delhi is therefore rejected.
With regard to the submission of the petitioner, that the objection with regard to jurisdiction of the courts at Delhi was not specifically dealt with either by the Additional Chief Metropolitan Magistrate or by the appellate court, it is a settled law that if various grounds are taken by a party to assail an order and though each of them is not specifically dealt with in the judgment/order, but ultimately, the petition is dismissed or the relief is declined, it has to be assumed that the court duly considered the said pleas on the merits before declining the relief prayed for, even if not specifically elaborated in judgment/order. Merely because the said plea was not rejected in so many words in the operative para of the order dated December 7, 2002 cannot be a ground to entertain the present petition.
Even otherwise, there is no illegality, infirmity or arbitrariness in the impugned order dated May 22, 2004, which would result in a serious miscarriage of justice, for this court to exercise its extraordinary powers under section 482 of the Code of Criminal Procedure. In view of the above, the present petition is dismissed.
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2011 (1) TMI 1035
TDS - assessee defaulted in not deducting the tax at source on the amount of commission paid to the distributor - Held that:- As it is evident that the distributor was to purchase products at pre-determined price from the assessee for selling the same within specified area. The products were to be purchased by the distributor against 100 per cent. advance payment or may be some times on credit at the discretion of the assessee. Both the assessee and the distributor have been collecting and paying their sales tax separately. Both the parties have clearly understood and accepted the agreement between them. That being the arrangement between the assessee and the distributor, it could not be said that the relation between them was that of principal-agent. On the other hand it was clearly stipulated to be an agreement between them on principal-to-principal basis - no infirmity in the findings of the CIT(Appeals) and also ITAT in concluding that the payment given by assessee to the distributor is nothing but a discount and did not have the characteristics of commission - appeal has no merit and is hereby, dismissed.
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2011 (1) TMI 1033
Reopening of assessment - deduction u/s 80P(2) - Validity of notice - beyond a period of four years from the end of the relevant assessment year - Held that:- It is apparent that the basic requirement for assuming jurisdiction under section 147 beyond a period of four years from the relevant assessment year is not satisfied as the belief as to escapement of income chargeable to tax from assessment, has not been entertained by the Assessing Officer on the ground that there has been failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment.
The only ground for reopening the assessment is the decision of Madhya Pradesh co-operative Bank Ltd. v. Addl. CIT [1996 (1) TMI 8 - SUPREME Court] which stands overruled by a subsequent decision rendered in the case of CIT v. Karnataka State Co-operative Apex Bank [2001 (8) TMI 9 - SUPREME Court]. In the circumstances, the very basis for reopening the assessment no longer survives. Hence, even on the merits the reopening of assessment is not sustainable. Decided in favor of the assessee
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2011 (1) TMI 1032
Re-opening of assessment - Validity of notice - Held that:- As it is apparent that in so far as the assessment years 1991-92 to 1995-96 are concerned, the impugned notices under section 148 have been issued on May 30, 2001 and as such are clearly beyond the period of four years from the end of the relevant assessment year - in the absence of any failure on the part of the petitioner to dis-close fully and truly all material facts necessary for its assessment.
As regards the assessment years 1996-97 to 1998-99 - Held that:- In the circumstances, the decision of Gujarat State Co-operative Bank Ltd. v. CIT [2000 (11) TMI 45 - GUJARAT High Court] 250 ITR 229 (Guj) for the purpose of arriving at the opinion that income has escaped assessment has been reversed by the decision of Gujarat State Co-operative Bank Ltd. v. CIT [2001 (8) TMI 15 - SUPREME Court] which forms the basis for reopening of assessment, itself is no longer good law and as such the very substratum for reopening the assessment falls - In favour of assessee.
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2011 (1) TMI 1025
Selling and distribution expenses - Whether form the part of assessable value? - Held that:- Selling and distribution expenses shall not form part of assessable value when they are captively consumed by the assessee, appeals filed by the Revenue deserve no merits. no reasons to interfere with the impugned order, the same are confirmed, appeals filed by the Revenue are rejected.
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2011 (1) TMI 1024
Undervaluation - short levy of duty - Held that:- Commissioner (Appeals) has correctly recorded the facts of the case saying that 'appellant company has transferred sub-assemblies, which are in nature of semi-processed goods to their another unit situated at Pune for certain job work and returned due to tight delivery schedule. These transfers were effected on payment of duty and the receiving the factory used to take Modvat Credit. The valuation was done by the appellant on the basis of cost of manufacture and profits i.e., cost of raw material plus 15% described as transfer cost and 15% margin on the total of two'.
As per Rule 57F, it is clarified that this sub-rule did not require the manufacturer to ascertain and declare the value of partly processed item and in this case the assessee has already paid the duty on the cost of inputs plus 32.25% of the cost of inputs as profits, which is definitely more than the duty required to be reversed. In this scenario, no infirmity with the impugned order, the same is upheld as appeal filed by the Revenue deserves no merits and the same is rejected.
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2011 (1) TMI 1023
Penalty under Rule 173Q (1) of Central Excise Act - appellant passed the MODVAT credit without actually selling the goods - Held that:- Shortage of inputs found at the premises of GEPL is not of the goods mentioned in the invoices in which the discrepancy was found. Moreover, the investigating authority has not recorded the statement of the person who was the owner of the vehicle mentioned in the invoices in which the discrepancy was found - No penalty can be levied on them for their bonafide act under such clause (bbb) of sub-rule 1 of Rule 173Q, without giving any finding, the adjudicating authority without specifying particular clause of Rule 173Q (1) has imposed the penalty. As decided in Amrit Foods (2005 (10) TMI 96 - SUPREME COURT OF INDIA) neither show-cause notice nor the order of Commissioner has specified which particular clause of Rule 173Q (1) or erstwhile Central Excise Rules, 1944 has been allegedly contravened by the appellant, assessee is to put on notice as to exact nature of contravention for which under provision of Rule 173Q, penalty is imposable - order imposing penalty, is set aside and the appeals are allowed.
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2011 (1) TMI 1022
Demand of duty - using the brand name by the other manufacturer for which the appellants are in entitled for SSI exemption - protective show-cause notice was issued to the appellants while the proceedings were pending before this Tribunal and the same was not brought in the knowledge of the Tribunal - Held that:- If there is any grievance of the department, they should have come before this Tribunal in the proceedings which were pending there. As department did not take any steps to contest the issue before this Tribunal and the same has attained finality which has been followed by the adjudicating authority in this case as judicial discipline, the show-cause notice was dropped. In the impugned order, the lower appellate authority has in going into this aspect at all and taken the submissions of the revenue and passed the order impugned which is not correct in the eyes of law. It is well settled law in the case of Kamakshi (1991 (9) TMI 72 - SUPREME COURT OF INDIA) judicial discipline is to be followed by lower courts. In this case the lower appellate authority has not followed the judicial disciple, hence, no other option to set aside the impugned order. Appeal allowed.
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2011 (1) TMI 1021
Condonation of delay - suspension of operation of the CHA licence - Held that:- As appellant submits that he was under the impression that a separate appeal against the Commissioner's order was not necessary inasmuch as an appeal had already been filed against the Commissioner's earlier order of suspension of operation of the licence. Conspicuously, this ground is missing in the 'condonation-of-delay' application and hence cannot be considered. Moreover, there is even no attempt on the part of the appellant to explain the delay of the appeal beyond the period of limitation prescribed under the statute. The appellant is said to have been suffering from 'depression'. From which date was he suffering from 'depression' is not forthcoming, nor any medical certificate has been produced in support of the plea. COD application dismissed.
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2011 (1) TMI 1020
Stay - whether it was open to the Commissioner (Appeals) to order for refund of fine and penalty to the importer? - Held that:- The only answer to this question would be in the negative. As rightly pointed out by the SDR, the Assistant Commissioner's order relating to confiscation, redemption fine and penalty was not challenged by the importer and hence the same was not liable to be interfered with by the Commissioner (Appeals) in an appeal filed by the Revenue - set aside the impugned order and allow the appeal.
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2011 (1) TMI 1019
Stay application - Valuation - whether the royalty paid was liable to be included in the assessable value of the imported goods under Rule 10(1)(c) of the Customs Valuation Rules - Chartered Accountant's certificate dated 25.11.2010 showing particulars of the royalty paid on sale proceeds of goods manufactured and sold locally is available on record. The Chartered Account has certified the royalty and payment for technical know-how fees payable to Seco Tools AB, Sweden, accounted for by the appellant-company in its books of accounts - Held that:- Having found that a document with the semblance of the break-up offered by the appellant before the lower appellate authority is now available on record, the matter has to be sent back to the said authority for fresh decision. It is open to the Commissioner (Appeals) to call upon the assessee to prove the veracity of the Chartered Accountant's certificate by producing their audited accounts and 'relevant records, appeal is allowed by way of remand.
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2011 (1) TMI 1018
Duty confirmed - maintainability of appeal - Commissioner of Central Excise has directed the Dy. Commissioner of Central Excise, Belapur to file an appeal before the Commissioner (Appeals) against the order passed by the Additional Commissioner - Held that:- Silver Streak Welding Products (2007 (9) TMI 222 - HIGH COURT BOMBAY) held that 'the authority on whom the power was confirmed is in the adjudicating authority, appeal filed by the Deputy Commissioner before the Commissioner (Appeals) in the case in which the impugned order is before us in challenge was not maintainable before the Commissioner (Appeals), Appeal is allowed with consequential relief, if any.
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2011 (1) TMI 1017
Goods cleared without payment of duty - raw material and the finished goods lying in the factory unaccounted were detained under the reasonable belief that the same were to be removed for clandestine removal - demand raised along with penalty - Held that:- The appellant have conceded the confiscation of 150 barrels seized from the vehicle. Therefore, there is no infirmity in the adjudicating authority's order insofar as confiscation of these goods are concerned.
As regards the good seized from the factory premises on 15/04/2006 valued at ₹ 14,61,498/- is concerned the department could not prove that there was any attempt on the part of the appellant to remove the goods clandestinely. Therefore, the seizure and confiscation of these goods is not sustainable in law.
As regards penalty on Shri Haresh Dharmani, Director of the assessee, the department failed to produce any evidence that he was in any way involved in the transportation / removal, etc. in respect of the goods in question - unable to produce any evidence regarding any direct involvement of the Director of the company. Therefore, penalty on the Director is not sustainable in law.
So far as penalty under Section 11AC is concerned, no option was given to the appellant at the time of passing of the adjudication order. Therefore, option should be given to the appellant for payment of 25% of penalty in view judgment in the case of K.P. Pouches (P) Ltd. vs. Union of India (2008 (1) TMI 296 - HIGH COURT OF DELHI). Assessee also contended that so far as 178 barrels are concerned they were not given the documents seized by the department which because of which they could not establish before the department that these goods were cleared on payment of duty. Therefore, this aspect requires to be reconsidered - case remanded to the adjudicating authority for deciding the penalty amount and interest in respect of 150 barrels. Redemption fine in respect of these goods should be re-determined considering the value of the goods and the duty amount involved.
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2011 (1) TMI 1016
Duty demand with interest - calculation of interest - CENVAT credit reversed but they did not pay interest - Held that:- As there is no dispute that the respondents were not entitled for the credit on the items in question. The interest is leviable on wrongly utilised credit is also not in dispute. Thus agreeing with the respondent's contention that the interest liability would arise from the date of wrong utilisation of credit in view of the judgment of Commissioner of Central Excise, Delhi vs. Maruti Udyog Ltd. (2006 (10) TMI 63 - HIGH COURT,PUNJAB & HARYANA). In the instant case, interest has been calculated from the date of credit taken. Therefore, the quantum of interest has to be calculated from the date of wrong utilisation of the credit - case is remanded to the adjudicating authority for the limited purpose of re-quantifying the interest.
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2011 (1) TMI 1015
Duty demand, interest and penalty of equal amount - the appellant was engaged in the manufacture of dutiable as well as exempted products out of common inputs and was availing CENVAT credit for the entire inputs used in the manufacture of both the products without following the procedure as laid down under Rule 6(2) of CENVAT Credit Rules, 2004 as appellant did not pay an amount equal to 10% of the total price excluding sales tax and other taxes paid on such goods as prescribed under Rule 6(3)(b) - Held that:- Provisions of Rule 6 of CENVAT Credit Rules has been amended and retrospective effect has been given to the amendment. This amendment was not before the adjudicating authority. Therefore, the case is remanded to the adjudicating authority to decide the issue afresh, after considering the amendment carried out to Rule 6 of CENVAT Credit Rules, 2004, appeal is disposed of by way of remand.
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2011 (1) TMI 1014
Valuation of the vehicles - assessee had purchased the vehicles in connection with transfer of their residence to India - invoices issued by those dealers were obviously local sale invoices, but these invoices did not show the address of the buyers - Held that:- If it was the intention of the assesse to purchase brand new cars for the purpose of importation into India in connection with transfer of their residence, they should ordinarily have obtained the invoices with all the relevant particulars mentioned thereon - instructions contained in the relevant circulars of CBEC were also followed by the original authority in determining the assessable value of the vehicles. The original authority also examined whether any depreciation of value could be allowed, and found valid reason not to allow such depreciation, on the facts of the case. authority further allowed 20% discount on the assessable value determined by the lower authority. As a matter of fact, Commissioner (Appeals) has been fair enough to grant reasonable relief to the assessees by taking into account relevant factors like demurrages, adverse weather conditions etc, even after the above discount, the assessable value of the subject-cars remains far above the declared value, there can be no grievance for the Revenue, appeals stand dismissed.
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2011 (1) TMI 1013
Import of raw material under the Advance Licences transferred to them by the original licensee as permitted by the licensing authority (DGFT) - Demand of duty, interest and penalty - Held that:-Provision of the policy was to the effect that an advance licence could be freely transferred after export obligation had been fulfilled, export proceeds realized and the Bank Guarantee/LUT redeemed. It was further provided that the facility of transferability would not be available in cases where the modvat/proforma-credit facility under Rule 191B of the Central Excise Rules of 1944 had been availed of - This aspect was not considered by the ld. Commissioner - Commissioner, however, did not also considered the plea of limitation raised by the party - order set aside and allow the appeal by way of remand with a request to the jurisdictional Commissioner of Customs to re-adjudicate the case - appeal allowed by way of remand
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2011 (1) TMI 1012
Refund - unjust enrichment - duty paid subsequent to the clearance of the goods - Held that:- In the absence of Section 28D presumption, it was the burden of the department to establishment that incidence of duty had been passed on to the buyer. From the records as find that the department has not discharged this burden. So far as the decision of Sahakari Khand Udyog Mandal Ltd. (2005 (3) TMI 116 - SUPREME COURT OF INDIA) Commissioner (Appeals) has given categorical finding that the department had not found or arrived at any conclusion regarding passing on of the incidence of duty in order to discharge this burden on it. The appellant could not produce anything new or contrary to the above. Therefore no infirmity with the concurrent finding of the lower authorities.
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