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Case Laws
Showing 481 to 500 of 514 Records
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2005 (11) TMI 35
Interest on the refund - "(i) Whether the expression 'the date on which the refund is granted' in clause (a) of sub-section (1) of section 244A, as was applicable in the relevant assessment year, in the facts and circumstances of the case, need to be construed to be the date of service of the refund order and the Tribunal acted contrary to law in modifying the order of the Commissioner of Income-tax (Appeals)? (ii) Whether the belated despatch of refund order is against the legislative intendment as contemplated under section 244A, and entitles the assessee for interest on the refund amount u/s 244A and also on equitable consideration till the date of service of refund order?" - In clause (a) the words have been used "refund is granted". Refund is granted the moment the concerned officer has signed the order regarding payment of the interest under section 244A. We see no error in the order of the Tribunal.
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2005 (11) TMI 34
Retirement of Partner - "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is right in law in holding that there should be two separate assessments in the case of the assessee?" - new contract was entered into on August 27, 1980, incorporating fresh terms, including the change in the accounting period and the same came to be accepted by the Assessing Officer. On behalf of the Revenue, there is no evidence pointed out from the record that the new contract entered into between the parties, including the change in the accounting period, had any relevance with the old partnership - there is no infirmity in the decision of the Tribunal so as to warrant intervention
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2005 (11) TMI 33
In search and seizure operation, evidence of two fixed deposit certificates issued by the then ANZ Grindlays Bank for Rs. 20,000 and Rs. 25,000, respectively, renewed up to date, were found. The said fixed deposits certificates were issued in the name of the petitioner, who had shown his address in the care of one Subodh Misra of M/s. Dolphine Service. On the basis of the said facts a consequential warrant of authorisation under section 132(1A) was issued for search and the premises of the bank and thereafter on January 20, 2000, the respondents converted the value of the certificates into a bankers cheque payable to the Department whereafter the money was deposited in the account of the Commissioner, in accordance with the provisions of rule 112 of the Income-tax Rules. Aggrieved by the said action the instant writ petition has been filed seeking appropriate intervention of the court.
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2005 (11) TMI 32
Scope Of Section 68 - "(1) Whether, Income-tax Officer was justified in reopening the assessment under section 147(a) of the Income-tax Act? (2) Whether Tribunal was justified in holding that the addition of ₹ 50,000 in the total income of the assessee is income from undisclosed sources?" - Tribunal, after holding that the gift was not genuine, goes on to state that, therefore, there was no full and true disclosure by the assessee in the original return of income, and that the facts came to light only during gift-tax assessment proceedings in the hands of Shri Ramji Nanji. However, in the view that the court has taken on the merits, it is not necessary to render any opinion in relation to question No. 1 relating to reopening under section 147(a) - In the result, question No. 2 is answered in the negative, i.e., in favour of the assessee and against the Revenue. Question No. 1 is left unanswered
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2005 (11) TMI 31
Applicability of the provisions of section 195 - The petitioner obtained a stay of collection of disputed tax and interest on February 14, 2003, from the Tribunal subject to certain conditions. The appeals were heard by the Appellate Tribunal and the arguments were concluded on both the sides on January 5, 2004. The parties were directed to file written submissions, which they did. The Tribunal instead of pronouncing the orders on the merits reopened the appeals as part-heard for the purpose of considering the issue as to whether the petitioner required the permission of the "Committee of Disputes". That after hearing the parties, the Appellate Tribunal held that the matter has to be referred to the Committee of Disputes and accordingly dismissed the stay petitions in limine with the further observation that the appeals preferred by the petitioner cannot be admitted - The view taken by the Appellate Tribunal is vitiated by errors apparent on the face of the record. The Tribunal misdirected itself in applying the decisions of the Supreme Court in ONGC cases. The Tribunal committed a grave error in passing the impugned order instead of disposing of the appeals on the merits. The impugned order is unsustainable in law and the same is accordingly quashed
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2005 (11) TMI 30
"Whether Tribunal was justified in overturning and unsettling the order of the Commissioner of Income-tax passed under section 263, on the ground that the Commissioner had not recorded reasons that there had been prejudice to the interests of the Revenue but solely on the foundation that the Assessing Officer did not have the ample opportunity to proceed with the assessment and there was no sufficient time on the part of the Additional Commissioner to check the order of assessment passed by the original authority?" - What was the sequitur or consequence of such order qua prejudicial to the interest of the Revenue should have been focussed upon. That having not been done, in our considered opinion, exercise of jurisdiction under section 263 of the Act is totally erroneous and cannot withstand scrutiny. Hence, the Tribunal has correctly unsettled and dislodged the order of the Commissioner. Consequently, we are disposed to think, the appeals are sans merit and accordingly they are dismissed
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2005 (11) TMI 29
In the course of the assessment, the assessee claimed that the amounts received by it from M/s. Brooke Bond Lipton India Limited were not exigible to tax. The Assessing Officer declined to accept that contention and declared the receipt exigible to tax in the hands of the assessee. Aggrieved, the assessee filed an appeal before the Commissioner of Income-tax and, inter alia, relied upon the instructions issued by the Central Board of Direct Taxes, according to which, receipts of the kind referred to above could be brought to tax only from the assessment year 1998-99 onwards in view of the amendment made in section 55 of the Income-tax Act, 1961. The Commissioner upheld the claim and the contention urged by the assessee. Relying upon the decision of the Supreme Court as also the instructions issued by the Central Board of Direct Taxes, the Commissioner held that the receipts in question were not exigible to tax for the periods they were actually received. - In the light of the authoritative pronouncements of the Supreme Court regarding the binding nature of the instructions issued under section 119 of the Act, as also the fact that the appellate authority, has while allowing the appeal filed by the assessee, placed reliance upon the instructions, we see no substantial question of law arising for our consideration in this appeal
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2005 (11) TMI 28
In our considered opinion, if reasons are supplied along with the notice under section 148(2, it shall obviate unnecessary harassment to the assessee as well to the Revenue by avoiding unnecessary litigation which will save courts also from being involved in unproductive litigations. Above all it shall be in consonance with the principles of natural justice. In view of the admitted position in the undisputed facts of the instant case that reasons have been disclosed/communicated though during pendency of the writ petition in this court, the grievance of the parties, if any, has become non-existent and there being no surviving cause of action today, the writ petition does not survive and hence is liable to fail.
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2005 (11) TMI 27
Trust - exemption u/s 11 and 12 - allegation of violation of the Foreign Contribution (Regulation) Act, 1976 - trust was registered after the receipt of the amount by the assessee from Dubai, though it is claimed that the application for registration had been filed earlier - impugned order is set aside - matter is remitted to the HC for its fresh determination in accordance with law - HC could not have been dismissed the appeal on the ground that no substantial question of law arises
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2005 (11) TMI 26
Export - firm engaged in the imports of synthetic waste and manufacture and export of woolen blankets - power exercised by the Assessing Officer under section 145 - income which has not been derived by the assessee cannot be said to be the income chargeable for income-tax and, therefore, the rejection of the accounts maintained by the assessee for the valuation of the closing stock by the Assessing Officer and confirmed by the High Court is in accordance with law.
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2005 (11) TMI 25
Non-resident - appellant has filed these appeals as the agent of its employees who are the assessees in the present case. The appellant itself is a company which was incorporated in Panama - whether the salary of the employees of the appellant payable for field breaks outside India would be subjected to tax under section 9(1) (ii) read with the Explanation thereto - held that the 1999 Explanation would "not apply to the assessment years in question.
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2005 (11) TMI 24
Auction notice for the land belonging to the petitioner even when stay petition and appeal preferred by the petitioner are pending before the Tribunal - writ petition is accordingly disposed of directing the respondent not to proceed with the auction or take any coercive steps during the pendency of the stay petition filed by the petitioner - Tribunal shall expedite the hearing of the stay petition and pass appropriate orders in accordance with law
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2005 (11) TMI 23
Summons u/s 14 – No evidence to prove that summons were issued merely because the assessee made complaints against the Revenue to Human Rights Commission – Summons for investigations cannot be held to be on account of vindictive attitude of revenue – Petition dismissed
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2005 (11) TMI 22
Interest on delayed refund cannot be claimed after the matter is decided – Petitioner failed to claim for interest at the time petition was allowed granting relief – Hence, civil application for grant of interest at subsequent stage is not tenable
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2005 (11) TMI 21
EXIM – Rebate of excise duty on raw material used for the production export goods –Declaration filed as per Ntf. No. 42/94-CE(NT) -Rebate being a beneficial scheme, it should have been interpreted liberally –Procedural infractions of notification/circular are to condoned if export have taken place actually, substantive benefit cannot be denied
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2005 (11) TMI 20
Central Excise - The Advocate-on-Record has authority to engage Counsel for argue on behalf of client and for that purpose no separate Vakalatnama is required to be filed by client in favour of Counsel - Such counsel is not designated as a Sr. Advocate under the Advocate Act
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2005 (11) TMI 19
Service Tax – ST-3 returned filed by appellant was finally assessed under Sec 71 – Demand for additional tax cannot be raised under Sec 74 as said Sec invoked for correcting mistake apparent from records by assessing officer – Revenue should have filed appeal u/s 85 against assessment order
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2005 (11) TMI 18
Issues:
1. Claim for refund of duty based on wire drawn from wire rods.
2. Eligibility for Modvat credit on inputs.
3. Appeal against the order allowing Cenvat credit.
4. Appeal against the order sanctioning cash refund.
Analysis:
Issue 1: Claim for refund of duty based on wire drawn from wire rods
The respondents filed a claim for refund of duty paid on wires drawn from wire rods. The original authority sanctioned cash refund of a portion of the amount and allowed the claimant to take Cenvat credit for the balance. However, the department contested the cash refund of the remaining amount, arguing that the product was not dutiable during the disputed period, making the claimant ineligible for Modvat credit on inputs. The appellate authority allowed the appeal, setting aside the cash refund. The judgment highlighted that if the final product was exempt from duty, no duty credit on inputs could be claimed, leading to the dismissal of the cash refund claim.
Issue 2: Eligibility for Modvat credit on inputs
The judgment emphasized that since the respondents only manufactured non-dutiable wires during the relevant period, they were not entitled to avail input-duty credit. It was clarified that even if a final product was excisable, no duty credit on inputs was permissible if the final product was exempt from duty. Therefore, the respondents were not permitted to pay any duty through debit in the Modvat account, and consequently, cash refund for any such duty paid was not claimable.
Issue 3: Appeal against the order allowing Cenvat credit
The department had filed an appeal against the original authority's decision to allow Cenvat credit to the assessee. This appeal was dismissed by the Commissioner (Appeals) in light of the earlier order that allowed the cash refund. With the setting aside of the cash refund order, the appeal against the Cenvat credit allowance was also allowed, emphasizing the interconnected nature of the decisions.
Issue 4: Appeal against the order sanctioning cash refund
Following the original authority's sanctioning of cash refund to the assessee, the department appealed this decision. However, the appellate authority dismissed the department's appeal, stating that the issue had already been decided in favor of the party. With the setting aside of the cash refund order, subsequent proceedings for cash refund were also nullified, resulting in the allowance of the appeal against the cash refund sanction.
The judgment was delivered on 28.11.2005, setting aside the orders related to cash refund and Cenvat credit, emphasizing the importance of duty exemption on final products in determining eligibility for duty credit and cash refunds.
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2005 (11) TMI 17
Service Tax - Clearing and forwarding agent - Appellants renders services of receiving, storing and distributing of the products and do not clear the product from principal's premises, such activities do not fall under the category of C&F agent to attract service tax
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2005 (11) TMI 16
Issues:
1. Confirmation of demand under Section 70 of the Finance Act, 1994
2. Imposition of penalties under Sections 75, 75A, and 76 of the Act
3. Failure to collect and pay Service Tax under Section 68
4. Misinterpretation of show cause notice and order-in-original
5. Jurisdiction of the Commissioner (Appeals) to issue show cause notice under Section 73
Analysis:
Issue 1:
The appeal was against the order confirming a demand of Rs. 65,000 under Section 70 of the Finance Act, 1994. The Commissioner (Appeals) upheld the demand, imposed penalties of Rs. 500 under Section 75A, and Rs. 1,000 under Section 76. The order-in-original by the Assistant Commissioner deemed the appellant as a consulting engineering firm, necessitating the demand and penalties.
Issue 2:
Penalties were imposed under Sections 75, 75A, and 76 for failure to register, collect, and pay Service Tax in accordance with the provisions of Section 68. The appellant was alleged to have provided consulting engineering services without proper registration, leading to the penalties being imposed.
Issue 3:
The Assistant Commissioner found the appellant to be covered under the expression of 'consultant engineering firm' and non-cooperative in providing relevant documents. The services provided were deemed to fall under 'market research agency and management consultancy service', subject to Service Tax.
Issue 4:
The Commissioner (Appeals) issued a show cause notice to the appellant under Section 73 (1) of the Act, seeking recovery of Service Tax, interest, and penalties. However, the Commissioner misinterpreted the proviso to sub-section (4) of Section 85, leading to confusion regarding the nature of the notice issued and the authority to do so.
Issue 5:
The Commissioner (Appeals) erred in issuing a fresh show cause notice under Section 73 (1) instead of a notice for enhancing Service Tax, interest, or penalties under Section 85 (4). This misinterpretation led to a lack of proper consideration of the original show cause notice and the services provided by the appellant.
In conclusion, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for a proper determination of the Assistant Commissioner's order and the necessity of an enhancement notice under Section 85 (4). The appeal was allowed, emphasizing the need for correct interpretation and application of relevant legal provisions.
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