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Showing 501 to 520 of 1359 Records
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2015 (4) TMI 861
Detention of goods - documents accompanying the goods are found to be defective - Held that:- Court has considered similar issue in [2015 (4) TMI 537 - MADRAS HIGH COURT] and [2015 (4) TMI 536 - MADRAS HIGH COURT] and passed an order directing the respondent to release the goods on payment of one time tax to be decided by the respondent. In the case on hand, tax component has already been decided. - petitioner is directed to pay ₹ 21,511/- without prejudice to its rights and contentions and on such payment, the respondent is directed to release the goods and the petitioner is at liberty to work out its remedy with regard to compounding fee before the Appellate Authority - Decided conditionally in favour of assessee.
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2015 (4) TMI 860
Suppression of production - Imposition of penalty - Data taken from departmental website - Held that:- When the respondent has referred to certain documents which has been taken from the departmental website, it is the duty of the respondents to furnish the same to the petitioner and call for an explanation and thereafter pass the final order. Since the same has not been given in this case, I have no other option except to quash the impugned order. - Decided in favour of assessee.
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2015 (4) TMI 859
Reversal of credit - Opportunity of hearing - Appearance of petitioner on the basis of visitor's record - Held that:- Visitors book cannot be considered as an one for recording the personal hearing of the petitioner and it could be taken only as an entry to the office. The petitioner shall deposit 10% of the tax amount, as agreed by the petitioner before the authority concerned - impugned order is set aside and the matter is remitted to the authority for fresh consideration - Decided conditionally in favour of assessee.
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2015 (4) TMI 858
Demand of RTO Tax - RTO tax on the mobile crain - Held that:- When the Government was the owner of the showel crowler crain upto 14.11.2006, it is not appreciable how the petitioner shall be liable to pay the RTO tax for the period between 1.8.1995 and 14.11.2006/20.11.2006. Under the circumstances, as such, the impugned order so far imposing the RTO tax upon the petitioner for the period between 1.8.1995 and 20.11.2006 cannot be sustained and the same deserves to be quashed and set aside and accordingly, quashed and set aside.
So far as the RTO tax liability for the period after 20.11.2006 is concerned, it is the case on behalf of the petitioner that the petitioner had paid entire RTO tax with penalty and interest etc. from 20.11.2006. The aforesaid be considered by the appropriate authority and if it is found that any amount towards RTO tax, penalty and interest is paid by the petitioner for the period after 20.11.2006, the same may be given credit and/or adjusted from any amount found to be due and payable - Decided in favour of assessee.
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2015 (4) TMI 857
Valuation - non inclusion of freight, insurance and unloading charges - Evasion of central excise duty - place of removal of finished goods was different from the factory gate - Held that:- Most of the orders placed with the respondent assessee were by the various Government authorities. One such order i.e. order dated 24.06.1996 placed by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be delivered at the place of the buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, central excise duty, loading, transportation, transit risk and unloading charges etc. Even transit damage/breakage on the assessee account which would clearly imply that till the goods reach the destination, ownership in the goods remain with the supplier namely the assessee. As per the 'terms of payment' clause contained in the procurement order, 100% payment for the supplies was to be made by the purchaser after the receipt and verification of material. Thus, there was no money given earlier by the buyer to the assessee and the consideration was to pass on only after the receipt of the goods which was at the premises of the buyer. From the aforesaid, it would be manifest that the sale of goods did not take place at the factory gate of the assessee but at the place of the buyer on the delivery of the goods in question.
The clear intent of the purchase order was to transfer the property in goods to the buyer at the premises of the buyer when the goods are delivered and by virtue of Section 19 of Sale of Goods Act, the property in goods was transferred at that time only - CESTAT did not take into consideration all these aspects and allowed the appeal of the assessee by merely referring to the judgment in the case of Escorts JCB Ltd. [2002 (10) TMI 96 - SUPREME COURT OF INDIA] - Obviously the exact principle laid down in the judgment has not been appreciated by the CESTAT. - Decided in favour of Revenue.
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2015 (4) TMI 856
Valuation of goods - Inclusion of royalty amount - Manufacture of duplicate CD - Held that:- Section 4(1)(a) of the Central Excise Act will not apply for the simple reason that price is not the sole consideration for the sale as a master tape had to be handed over by the distributor/copyright holder to the appellant. Since Section 4(1)(b) applies, the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, would apply. - A reading of Rule 6 shows that the value of the goods referred to in the Rule shall be deemed to be the aggregate of the transaction value and the amount of money value of any additional consideration that may flow directly or indirectly from the buyer to the assessee. Both parties relied upon the explanation to further their case. Since the explanation is determinative of the present case, it is important to note that where the master tape is supplied by the distributor who is the copyright holder to the appellant, whether free of charge or at a reduced cost such master tape must be used in connection with the production and sale of goods by the assessee. What is clear from the present transaction is that the master tape contains within it music/picture in digital form. There is no doubt whatsoever that the music/picture supplied on the master tape ought to be valued and has been valued as additional consideration that flowed from the buyer to the assessee, and its value has been accepted at rupee one per CD.
Copyright value in the duplicate CD is not used in connection with the sale of such goods inasmuch as no part of the copyright which may have been passed on by the distributor to the assessee is used by the assessee in selling the duplicate CDs to the distributor who is himself the owner of the copyright. Clearly therefore on the assumption that the music/picture embedded in the master tape is inextricably bound with the copyright thereof, the copyright is not “used” by the appellant while selling the duplicate CDs to the distributor. The distributor having paid a lump sum royalty to the producer of the music, then sells, after the job work done by the appellant, the duplicate CDs in the market with the cost of the royalty loaded thereon.
Given the fact that no part of the royalty can be loaded on to the duplicate CDs produced by the appellant, the circular dated 19.2.2002 which deals with apportionment of royalty would have no application to the facts of the present case. In the circumstances, the impugned judgment is set aside - Decision in the case Associated Cement Companies Ltd. v. Commissioner of Customs [2001 (1) TMI 248 - Supreme court of India] distinguished - Decided in favour of assessee.
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2015 (4) TMI 855
Demand of interest - failure to pay fortnightly payment in terms of Rule 170G (1)(d) - absence of provision of law to raise interest - Held that:- Parliament, after taking note of this loophole has amended the law by inserting Section 11AA in the Central Excise Act, where it is provided that notwithstanding anything contained in the judgment, decree or order or directions of the Appellate Tribunal or any Court or in any other provisions of this Act or the Rules made there under, the person, who is liable to pay duty shall in addition to the duty be liable to pay interest at the rate specified in Sub-Section (2) where such payment is made voluntarily or after determination of the amount of duty under Section 11AA of the Act. Therefore, this provision is prospective in nature. It has no application to the period prior to 08.04.2011. The period which is the subject matter of this appeal is anterior to the amendment. During the said period, as rightly pointed out by the Tribunal, there was no provision of levying of interest on duty paid after determination of the dispute. - Decided against Revenue.
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2015 (4) TMI 854
Valuation of goods - whether the cost of gunny bags in which the Sponge Iron is packed in the cases in which the goods are dispatched by rail is includible in the assessable value or not - Held that:- There is no dispute that all the sales are at the factory gate and in the cases where the goods are dispatched through trucks there is no special packing. Since the Sponge Iron is sold at the factory gate without being packed, it is marketable as such, in our view the cost of special packing in the cases of transportation through railways would not be includible in the assessable value of the goods and in this regard we are supported by the judgment of the Tribunal in the cases of Goyal M.G. Gases Pvt. Ltd. vs. CCE, Ghaziabad (2014 (8) TMI 657 - CESTAT NEW DELHI). In this judgment, the Tribunal has held that during the period prior to 01/7/200 and during the period w.e.f. 01/7/2000, the packing charges would not be includible in the assessable value of the goods if the goods are marketable, as such, without being packed. cost of packing of the Sponge Iron in the gunny bags would not be includible in the assessable value.
As regards, the charges for loading of the goods on to the trucks in the factory, the same would be includible in the assessable value and the duty demand on this account has to be upheld. - impugned order is upheld only to the extent of the duty demand on the loading expenses incurred inside the factory and the rest of the duty demand, interest thereon and equivalent penalty under Section 11AC is set aside. The duty demand, which has to be upheld, is to be quantified by the Commissioner - Decided in favour of assessee.
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2015 (4) TMI 853
Clandestine removal of goods - parallel invoices - Duty evasion - Malafide intention - Preponderance of evidence - Held that:- Municipality record being public record proved the questionable modus operandi of the respondent manufacturer showing movement of clandestinely removed goods. Recording of higher quantity of production after visit by investigation self speak suppression of production prior to search. Suppressed production cleared clandestinely was proved from blank and parallel invoices found by investigation. The dealers tabulated herein before having been found to be buyers of such goods, they supported case of Revenue. Plea of unrealiability of photocopies failed to sustain when signature of director of respondent company therein was found to be same as reported by Govt. document examiner. Blank copies of invoices found from invoice book show ill intention of respondent manufacturer in absence of any explanation therefor. Goods in the factory of respondent manufacturer was found during search to have been unaccounted.
It is settled law that Revenue need not prove its case with mathematical precision. Once the evidence gathered by investigation brings out preponderance of probability and nexus between the modus operandi of the respondent with the goods it dealt, and movement of goods from origin to destination is possible to be comprehended, it cannot be ruled out that circumstantial evidence equally play a role - it is not only the photocopy that was used against the respondents, there are other credible and cogent documentary evidence, circumstantial evidence including oral evidence as well as experts report went against the respondents for which stand of Revenue cannot be criticized. The best evidence when demonstrate the modus operandi beginning from finding of unaccounted goods in the factory till parking of clandestinely removed goods and also throw light on the intention behind suppression of production which was established and corroborated by recording of higher quantity after search, the respondents made futile exercise in their defence. - For the clear case of evasion based by cogent and credible evidence came to record, dealing with the other citations made by respondents is considered to be mere academic exercise - Decided in favour of Revenue.
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2015 (4) TMI 852
Area based exemption in Jammu and Kashmir - application for fixation of special rate of value addition - alue addition of 36% specified in the exemption notification - Benefit of Notification No. 56/02-CE as amended by Notifications No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08 - Held that:- Jammu & Kashmir High Court in its judgment in the case of M/s Reckitt Benckiser [2010 (12) TMI 237 - JAMMU AND KASHMIR HIGH COURT] has quashed the amendments to the Notification No. 56/02-CE by Notification No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08 and the effect of the judgment would be that the provisions restricting the benefit introduced in the Notification No. 56/02-CE by these notifications are no longer there. Therefore, in our view, this judgment of Hon ble Jammu & Kashmir High Court would be applicable to those assessees also who had opted for this exemption even after the amendment to the Notification No. 56/02-CE by Notification No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08. Thus those assessees who have set up their units in the areas specified under Notification No. 56/02-CE on or after 06/2/10, have option either to avail Notification No. 56/02-CE or avail the Notification No. 1/2010-CE dated 06/2/10 and in case they opt for Notification No. 56/02-CE, the benefit available to them would not be restricted by Notification No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08.
If the appellant, however, opt for the Notification No. 1/2010-CE, the question of determination of special rate of value addition by the Commissioner would come. This rate has to be calculated on the basis of the formula prescribed in the Explanation to para 5 of the notification. In this regard, we do not find any mistake in para 17 of the order-in-original dated 31/5/12 passed by the Commissioner as the value addition has been determined as the difference between the sale value excluding excise, sales tax and other indirect taxes during 2011-12 (Rs. 1,05,11,690/-) and cost of raw material and packing material consumed (Rs. 32,30,184/-) - appellant s plea that the cost of raw material and packing material consumed is nil is not correct and the Commissioner has correctly determined the value addition for 2012-13 as 69.27%. If for 2013-14 the appellant opt for Notification 1/2010-CE and also opt for special rate of value addition, the same must be determined in terms of the above formula. - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 851
Area based exemption - Manufacturing activity or not - Job work - Activity of winding the wire on the stator and thereafter were putting varnish on the wires wound on the stators, receipt of stamping rotors and electrical grade aluminum and also dies and making cast, machined and painted rotors, which were being sent back to the principal manufacturer - Held that:- duty would be chargeable on the goods being made by the appellant on job work basis only if, those goods are in fully finished condition and the same are being used by KEL as parts of fans without any further processing. But if, the items being cleared by the appellants are in the nature of semi finished goods which require further processing by KEL for being used as parts of the fans, the same cannot be treated as marketable and hence, excise duty would not be chargeable.
As regards, the question of limitation it is seen that so far as SE are concerned, there was correspondence between KEL and the Department with regard to sending of semi finished/ raw material to SE for certain job work and hence, it cannot be said that the Department was not aware of the activity of SE. Similarly, in respect of JMAPL, it is seen that during 2004, there was correspondence between them and the Department with regard to the nature of their activity and whether they are eligible for exemption under notification no. 50/03-CE and from this correspondence also it is clear that the Department was aware about the nature of their activity. In any case, when both JMAPL and SE could have availed the full duty exemption under notification no. 50/03-CE just by filing the declaration and they did not file the declaration for availing of this exemption under belief that there activity does not amount to manufacture, no malafide can be attributed to them.
In view of this, even if there is any duty demand confirmed against the appellant, the longer limitation under proviso to section 11A(i) would not be applicable and for the same reason, penalty under section 11AC would not be imposable. - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 850
Validity of the amending Notification 19/08-CE dt.27.3.08 and Notification 34/08-CE dt.10.6.08 - Refund claim - whether the appellant would be eligible for full refund of duty paid through PLA in the manner specified in this notification or whether this benefit of notification is restricted to the duty payable on the value addition at the rate specified in the exemption notification or duty paid form PLA in the manner specified in this notification, whichever is lower - Held that:- High Court vide its order dated 12.4.2012 in respect of writ petition has ordered that --- implementation of the notification under challenge shall await the result of LPA as is pending judgement dated 23.12.2010 . In our view pending decision of LPA, the department cannot implement amending Notification 19/08-CE dt.27.3.08 and Notification 34/08-CE dt.10.6.08 which have been challenged by the appellant before the High Court. Therefore, appeal filed by the appellant against the Assistant Commissioner s order rejecting the refund claim, cannot be said to be premature. The Commissioner (Appeals) should have disposed of the appeals after decision of the LPA filed by the department against the High Court s judgement in the case of Reckitt Bencksier (India) Ltd. (2010 (12) TMI 237 - JAMMU AND KASHMIR HIGH COURT), and he should have kept the appeals pending till the decision of the LPA and he could not dismiss them as premature. - impugned order is set aside and the matter is remanded back to the Commissioner (Appeals) to decide the disputed refund claim of education cess and S&H cess in respect of the appellant s plea that they have not taken self-credit of education cess and S&H cess, therefore the question of its recovery does not arise. - Decided in favour of assessee.
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2015 (4) TMI 849
Condonation of delay - Power of Commissioner to condone delay beyond the period of 60 days plus 30days - Section 128 - Appeal was pursued before wrong forum - Held that:- On a plain reading of the provisions of the Limitation Act, it becomes clear that suits, appeals and applications are only to be considered (from the limitation point of view) if they are filed in courts and not in quasi-judicial bodies.
A number of decisions have established that the Limitation Act applies only to courts and not to Tribunals. The distinction between courts and quasi-judicial decisions is succinctly brought out in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., [1950 (5) TMI 19 - SUPREME COURT OF INDIA]. This root authority has been followed in a catena of judgments. - one that authorities under the Sales Tax Act are not “courts” and thus, the Limitation Act will not apply to them.
Judgment is in line with a large number of authorities which have held that Section 14 should be liberally construed to advance the cause of justice - see: Shakti Tubes Ltd. v. State of Bihar, [2008 (12) TMI 721 - SUPREME COURT OF INDIA] and the judgments cited therein. Obviously, the context of Section 14 would require that the term “court” be liberally construed to include within it quasi-judicial Tribunals as well. This is for the very good reason that the principle of Section 14 is that whenever a person bonafide prosecutes with due diligence another proceeding which proves to be abortive because it is without jurisdiction, or otherwise no decision could be rendered on merits, the time taken in such proceeding ought to be excluded as otherwise the person who has approached the Court in such proceeding would be penalized for no fault of his own.
Limitation Act including Section 14 would not apply to appeals filed before a quasi-judicial Tribunal such as the Collector (Appeals) mentioned in Section 128 of the Customs Act. However, this does not conclude the issue. There is authority for the proposition that even where Section 14 may not apply, the principles on which Section 14 is based, being principles which advance the cause of justice, would nevertheless apply. We must never forget, as stated in Bhudan Singh & Anr. v. Nabi Bux & Anr., [1969 (8) TMI 83 - Supreme Court Of India], that justice and reason is at the heart of all legislation by Parliament.
Merely because Parson Tools also dealt with a provision in a tax statute does not make the ratio of the said decision apply to a completely differently worded tax statute with a much shorter period of limitation - Section 128 of the Customs Act. Also, the principle of Section 14 would apply not merely in condoning delay within the outer period prescribed for condonation but would apply de hors such period for the reason pointed out in Consolidated Engineering [2008 (4) TMI 668 - SUPREME COURT], being the difference between exclusion of a certain period altogether under Section 14 principles and condoning delay. As has been pointed out in the said judgment, when a certain period is excluded by applying the principles contained in Section 14, there is no delay to be attributed to the appellant and the limitation period provided by the concerned statute continues to be the stated period and not more than the stated period. We conclude, therefore, that the principle of Section 14 which is a principle based on advancing the cause of justice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case.
Take the case of a plaintiff or applicant who has succeeded at the first stage of what turns out to be an abortive proceeding. Assume that, on a given state of facts, a defendant - appellant or other appellant takes six months more than the prescribed period for filing an appeal. The delay in filing the appeal is condoned.
The plaintiff/applicant files such a proceeding on the ninetieth day i.e. after three months are over. The said proceeding turns out to be abortive after it has gone through a chequered career in the appeal courts. The same plaintiff/applicant now files a fresh proceeding before a court of first instance having the necessary jurisdiction. So long as the said proceeding is filed within the remaining three month period, Section 14 will apply to exclude the entire time taken starting from the ninety first day till the final appeal is ultimately dismissed.
The right of appeal within a period of 180 days (which includes the discretionary period of 90 days) from the date of the said order was a right which vested in the appellant. A shadow was cast by the abortive appeal from 1992 right upto 2003. This shadow was lifted when it became clear that the proceeding filed in1992 was a proceeding before the wrong forum. The vested right of appeal within the period of 180 days had not yet got over. Upon the lifting of the shadow, a certain residuary period within which a proper appeal could be filed still remained. That period would continue to be within the period of 180 days notwithstanding the amendment made in 2001 as otherwise the right to appeal itself would vanish given the shorter period of limitation provided by Section 128 after 2001. - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 848
Waiver of pre deposit - Classification of goods - paper sizing chemicals - Revenue says that the goods imported were wax only - Classification under CTH 2914 1990 or CTH 3404 9090 - Held that:- it is proper that the appeals should be disposed expeditiously waiving predeposit because of diversity in the classification in different customs jurisdiction. Accordingly, there shall be waiver of predeposit in these appeals during pendency of the appeals and both sides take notice of hearing in view of the huge demand raised due to change of classification and either side may be prejudiced if the appeals are kept pending. - Stay granted.
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2015 (4) TMI 847
Offence u/s 138 & 142 of the Negotiable Instrument Act - Dishonour of cheques - Compliant filed without power of attorney - Complaint filed with out proper authorization - Held that:- Appeal No.73 of 2007 - Case of A.C. Narayanan - In this case Magistrate had taken cognizance of the complaint without prima facie establishing the fact as to whether the Power of Attorney existed in first place and whether it was in order. It is not in dispute that the complaint against the appellant was not preferred by the payee or the holder in due course and the statement on oath of the person who filed the complaint has also not stated that he filed the complaint having been instructed by the payee or holder in due course of the cheque. Since the complaint was not filed abiding with the provisions of the Act, it was not open to the Magistrate to take cognizance.
From the bare perusal of the said complaint, it can be seen that except mentioning in the cause title there is no mention of, or a reference to the Power of Attorney in the body of the said complaint nor was it exhibited as part of the said complaint. Further, in the list of evidence there is just a mere mention of the words at serial no.6 viz. "Power of Attorney", however there is no date or any other particulars of the Power of Attorney mentioned in the complaint. Even in the verification statement made by the respondent no.2, there is not even a whisper that she is filing the complaint as the Power of Attorney holder of the complainant. Even the order of issue of process dated 20th February, 1998 does not mention that the Magistrate had perused any Power of Attorney for issuing process.The appellant has stated that his Advocate conducted search and inspection of the papers and proceedings of the criminal complaint and found that no Power of Attorney was found to be a part of that record. This has not been disputed by the respondents. In that view of the matter and in light of decision of the larger Bench in the case of AC Narayanan And Another [2013 (9) TMI 948 - SUPREME COURT], as referred above, we hold that the Magistrate wrongly took cognizance in the matter and the Court below erred in putting the onus on the appellant rather than the complainant
Criminal Appeal No.1437 - Case of G. Kamalakar - In this case it is not in dispute that the complaint was filed by one Shri v. Shankar Prasad claiming to be General Power of Attorney of the complainant company. Subsequently PW-1 Shri Ravinder Singh gave the evidence on behalf of the Company under the General Power of Attorney given by the complainant Company. The complaint was not signed either by Managing Director or Director of the Company. It is also not in dispute that PW-1 is only the employee of the Company. As per Resolution of the Company i.e. Ex.P3 under first part Managing Director and Director are authorized to file suits and criminal complaints against the debtors for recovery of money and for prosecution. Under third part of the said Resolution they were authorized to appoint or nominate any other person to appear on their behalf in the Court and engage lawyer etc. But nothing on the record suggest that an employee is empowered to file the complaint on behalf of the Company. This apart, Managing Director and Director are authorized persons of the Company to file the complaint by signing and by giving evidence. At best the said persons can nominate any person to represent themselves or the Company before the Court. In the present case one Shri Shankar Prasad employee of the Company signed the complaint and the Deputy General Manager of the Company i.e. PW-1 gave evidence as if he knows everything though he does not know anything. There is nothing on the record to suggest that he was authorized by the Managing Director or any Director. Therefore, Magistrate by judgment dated 30th October, 2001 rightly acquitted the appellant. In such a situation, the case of the appellant is fully covered by decision by the larger bench AC Narayanan And Another [2013 (9) TMI 948 - SUPREME COURT] of this Court passed in the present appeal. - Decided in favour of appellants.
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2015 (4) TMI 846
Transfer of company / shares without consent - change of hand of the asset including the land in question - Transfer of Interest in company - Non deposit of Transfer levy - Held that:- Monsanto Manufactures Private Ltd. - In the present case the entire shareholding of Goyal family headed by Mr. Amar Nath Goyal in the said company was transferred to the Mehta-Lamba Family. The entire list of shareholders, Managing Director and Board of Directors was provided by Monsanto to the appellant-Corporation vide letter dated 7.5.1994. The record shows that the original subscribers of shares were members of Goyal family and the entire shareholding was transferred to Mehta-Lamba family. Therefore, the original subscribers of shares of respondent No. 1 Company were totally changed. - In this case, the ownership of a huge Industrial plot measuring 14,533 sq. ft. in the prestigious and economically affluent area of Sahibabad (Ghaziabad) has been transferred from Goyal family to the Mehta-Lamba family for material financial gains, by adopting clever means that too without taking written consent of the Lessor i.e. appellant-Corporation. There are many instances/examples in which the lessee gets allotment of huge industrial plots and thereafter sells the same for huge monetary gains. This adversely affects the aims and objectives of appellant-Corporation i.e. the planned development of industrial areas in the State of Uttar Pradesh. - The Hon'ble High Court ought not to have interfered in the matter looking into the public interest involved and Clause 3(p) of the lease deed.
U.P. Twiga Fiberglass Limited - It is not in dispute that the appellant-Corporation on 27th May, 1977 allotted huge plot measuring 1,10,926 sq. mtrs. to respondent no. 1 Company in the industrial area, Sikandarabad, Bulandshehar on nominal amount. The respondent no. 1 clearly admitted that it had a huge debt of ₹ 13,14,00,000/- the different financial institutions and, therefore, it sold shares of company, its own shares, shares of promoters and shares of financial institutions to the foreign company, namely, "M/s Rotar Ltd. - There is larger public interest involved in incorporating alteration in "Capital Structure" in Clause 3(p) of the lease deed. There are many instances where the company takes loan from third parties on the security and land and structure allotted to them in lease, keeping in dark the lessor which amounts to incurring liabilities on the property without the knowledge of the lessor. In this case also there was huge amount of debt on the company as it took loan on land and building/factory from different financial institutions. - Therefore, there is public interest involved for which consent of lessor was necessary.
M/s Enrich Engineering Works Pvt. Ltd. - It is not in dispute that the huge plot of about 40, 489 & 8.35 sq. yards in the industrial area of Rai Bareilly (U.P.) was allotted by appellant-Corporation to M/s Tyres and Tubes Company Pvt. Ltd. As the said company suffered heavy losses, on 9.1.1996 the company Judge of Allahabad High Court appointed Official Liquidator and perused High Court's Order on 12.3.2004 the said company was sold to M/s Enrich Engineering Works Pvt. Ltd., by the Official Liquidator.arned counsel for the respondent submitted that it was a case of reconstitution and therefore payment of transfer fee does not arise. However, such submission can not be accepted in view of Clause 6.01(E) & (F) of the guidelines. The fact that there is a change of hand of the asset including the land in question by transfer. - Therefore, the respondent is liable to pay transfer fee.
M/s Super Tannery (India) Ltd. - In the present case it has not been denied that respondent company M/s Super Tannery (India) Ltd. and the other company Super Agro Tech. Ltd. are family held companies of the same family having common Directors/Promoters. Pursuant to the order of amalgamation by the High Court the plot of land in question namely A-9, A-10, Industrial Area Unnao Site-II which was allotted to Super Agro Tech. Ltd. became the asset of the respondent company M/s Super Tannery (India) Ltd. As per Amalgamation Scheme, all the property, rights and power of Super Agro Tech. Ltd., having its office at 184/170, Jajmau Kanpur was transferred without further act or deed to M/s Super Tannery (India) Ltd. - Thus it is clear that by the order of the Court the premises in question was transferred in favour of the other Company.
In view of the aforesaid facts as noticed in each case, we hold that the appellant rightly issued notice demanding transfer fee from each of the respondents and there was no reason for the High Court to interfere with the same. - Decided in favour of appellant.
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2015 (4) TMI 845
Reopening of assessment - non stating any failure on the part of the assessee to disclose complete and full facts/concealment of facts is bad as submitted by assessee - Held that:- It is in respect of items mentioned at serial no. 2 i.e. payments made to L.G. Electronics, Korea, there is no disclosure with regards to non-resident company having P.E. In India as has been found after survey and as affirmed up to the High Court. We are satisfied that because of non-disclosure of the fact qua the L.G. Electronics, Korea having a P.E. In India, there has not been fully and truly complete disclosure of the material facts which could have led the Assessing Officer to examine as to whether tax was payable on the remittance to the non-resident Indian Company or not.
In our opinion in the reasons disclosed for initiating the re-assessment proceedings in the facts of the case, as noticed above, no fault can be found as the assessee had failed to disclosed fully and truly the complete facts in respect of L.G. Electronics, Korea having a P.E. In India to which payments have been made. Thus there is a nexus between the reasons recorded and the belief that income had escaped assessment because of fully and truly information having not been furnished by the assessee. The Assessing Officer has given valid reasons to believe that income had escaped assessment. No illegality in the notice issued under Section 148 - Decided against assessee.
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2015 (4) TMI 844
Entitlement to claim deduction under Section 80-IA - Held that:- The business undertaking of the assessee is wind mill power generation/hosiery goods, etc., and it has claimed the benefit of deduction under Section 80IA of the Income Tax Act for the assessment year in question and for the subsequent years as well. Having exercised its option and its losses have been set off already against other income of the business enterprise, the assessee in this appeal falls within the parameters of Section 80IA of the Income Tax Act. There appears to be no distinction on facts in relation to the decision reported in Velayudhaswamy Spinning Mills case (2010 (3) TMI 860 - Madras High Court). - Decided in favour of the assessee
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2015 (4) TMI 843
Business of advancing money and cash - capital asset v/s stock-in-trade - Tribunal held that the assesse was not engaged in the business of advancing loans and that money and cash was not its stock-in-trade was perverse and contrary to materials on record and based on irrelevant materials and considerations - Held that:- Copy of the 23rd Annual Report consisting of the statement of accounts of the financial year 1993-1994 from which it appears that the available funds of the company/assessee was about ₹ 11,23,00,000/- consisting of a sum of ₹ 5.56 crores on account of capital and reserve and the balance sum of ₹ 5.67 crores consisting of loans both secured and unsecured. Out of the aforesaid sum about ₹ 2.55 crores were invested in fixed assets comprising of furniture and fixture, office equipment, motor car, equipments given on lease, heavy vehicles given on lease, bottles given on lease and a scooter, about ₹ 52 lakhs were invested in shares and debentures, about ₹ 3.67 crores is invested in inventories consisting of investment in shares and hire purchase transactions; about a sum of ₹ 1.46 crores is receivable on account of lease, hire purchase and others, and a sum of ₹ 5.45 crores were invested in loans and advances both secured and unsecured, part of which has also been lent to the subsidiary referred in the judgment of the learned Tribunal.
From the aforesaid application of funds it cannot be said that the principal business of the assessee is borrowing and lending money. Therefore, the view taken by the learned Tribunal is a possible view and by no means is perverse. - Decided in favour of assessee.
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2015 (4) TMI 842
Addition under Section 68 - addition set aside concurrently by the CIT (Appeals) and the ITAT - Held that:- The objective of Section 68 is to avoid inclusion of amount which are suspect. Therefore, the emphasis on genuineness of all the three aspects, identity, creditworthiness and the transaction. What is disquieting in the present case is when the assessment was completed on 31.12.2007, the investigation report which was specifically called from the concerned department in Kolkata was available but not discussed by the AO. Had he cared to do so, the identity of the investors, the genuineness of the transaction and the credit worthiness of the share applicants would have been apparent.
Even otherwise, the share applicants’ particulars were available with the AO in the form of balance sheets income tax returns, PAN details etc. While arriving at the conclusion that he did, the AO did not consider it worthwhile to make any further enquiry but based his order on the high nature of the premium and certain features which appeared to be suspect, to determine that the amount had been routed from the assessee’s account to the share applicants’ account. As held concurrently by the CIT (Appeals) and the ITAT, these conclusions were clearly baseless and false. This Court is constrained to observe that the AO utterly failed to comply with his duty considers all the materials on record, ignoring specifically the most crucial documents. - Decided in favour of assessee.
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