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Showing 501 to 520 of 899 Records
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2010 (8) TMI 595
Revision of the order - The petitioner is a private limited company carrying on business of manufacturing of textile cotton yarn - Petitioner filed a revision petition under Section 264 of the Act on 05.12.2007 before the Revisional Authority, the Commissioner of Income Tax I, Coimbatore - The first respondent passed an order dated 02.03.2009 u/s 264 of the Act rejecting the application of the petitioner seeking to revise the order dated 07.11.2006 on the ground that the revision petition is barred by limitation and that the order sought to be revised is not within the revisional power as per Section 264(4) of the Act - The judgment of a Division Bench of this Court in KADRI MILLS (COIMBATORE) LTD., VS. COMMISSIONER OF INCOME-TAX , the first reason assigned in the impugned order dated 02.03.2009 relating to limitation is erroneous - The first respondent is correct in holding that the application seeking revision of order is hit by Section 264(4)(c) of the Act - The petitioner, as he chose to file appeal against the order dated 07.11.2006 before the Commissioner of Income Tax (Appeals) and Commissioner of Income Tax (Appeals) rejected the appeal. Therefore, he cannot seek to revise the order that was appealed against.
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2010 (8) TMI 594
Search and seizure - Addition - assessee had credited a sum of Rs. 5,50 lakh in the capital account on or about 10-7-2002 - This confirmation does not contain detailed facts about purchase of land, part payments made, and final fate of the agreement - The question of testing the veracity of documents arises only when such documents are prima facie believable - as the documents are unbelievable and the conduct of the parties is against the conduct expected of a normal prudent person, it is held that the assessee has failed to furnish satisfactory explanation regarding the nature and source of the receipt of Rs. 5.50 lakh - In the result, the appeals for both the years are dismissed
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2010 (8) TMI 590
Condonation of delay - The assessee that the appeals could not be filed in time because of the fact that the original orders passed by the Assessing Officer were misplaced and the records from the erstwhile Chartered Accountant could not be received in time - The Tribunal has found that the delay has been properly explained by the assessee and after convincing with the said reason assigned by the assessee, the Tribunal has exercised its discretion in favour of the assessee - When such a discretion is exercised based upon the materials available on record, do not find any reason to interfere with the same - Accordingly, the appeals stand dismissed - Decided in favour of assessee.
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2010 (8) TMI 589
Exemption u/s 86 - Member of an association of persons - Received interest from the association of persons - If the association of persons or a body of individuals happened to be a company or a co-operative society or a society registered under the Societies Registration Act, then in such an eventuality the member, who is also an assessee is not entitled to get the benefits provided under Section 86 of the Act - Further, Section 40(ba) of the Act would also make it clear that the share of the assessee under the income of association of persons shall not be taxable - Hence, a combined reading of the provisions would make it clear that there is no bar for a private company like the assessee from getting the benefits of Section 86 of the Act - Thus,the appeal is dismissed in favour of the assessee and against the revenue. No costs.
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2010 (8) TMI 586
Special audit - Non speaking order - Undisclosed income - Time barred - Though no notice has been issued in this writ petition, learned counsel for the Revenue has assisted the court on the issue involved in this petition also with reference to the averments in the reply already filed in other petitions - Though grant of approval by the Commissioner has been mentioned, it has not been mentioned as to why it was considered necessary having regard to nature and complexity of accounts and interest of the Revenue that special audit was necessary - The order does not show consideration of legal requirements and reasons on which the opinion may have been formed for directing special audit. Though grant of approval by the Commissioner has been mentioned, it has not been mentioned as to why it was considered necessary having regard to nature and complexity of accounts and interest of the Revenue that special audit was necessary - Appeal is allowed by way of remand to AO
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2010 (8) TMI 584
Waiver of pre-deposit - “Air Transport of Passengers Embarking for International Travel”service - The demand arises that the assessees were liable to pay Service tax on Passengers Service Fee (PSF) which is an amount collected by the Airport Authority of India (AAI) for the security and maintenance services provided by AAI to passengers using respective airports in India and it is the AAI which has created a charging mechanism requiring the airlines to collect the PSF from passengers and remit the same to the AAI. Held that: the strong prima facie case for total waiver as they do not provide or render any service to passengers, while it is only a service provider (or in some cases, service recipient) who is liable to pay Service tax - Hence, pre-deposit waive.
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2010 (8) TMI 582
Waiver of pre-deposit - “Management, maintenance or repair” - Whether motor vehicles were repaired or components or parts thereof repaired and whether the activity carried out by the appellant shall fall under the exclusion category of “management, maintenance or repair” u/s 65(64) of Finance Act, 1994 - Revenue contending that exclusion of the motor vehicles including its parts and components - Service provided by “authorized services station” is brought into the fold of law by entry in Section 65(9) of the Finance Act, 1994, the intention of legislature under sub-clause (a) of Section 65(64)(ii) may be to exclude motor vehicles as such or its parts and components repaired by a manufacturer or its authorized person in terms of this section - his sub-clause contains an independent entry, meaning of motor vehicles cannot be interpreted to exclude its parts and components - Hence, a motor vehicle is sent for repair, part or components thereof, are usually repaired. Directing no pre-deposit may prejudice interest of revenue, but equally of the view that undue hardship may also be cause if pre-deposit is called on the aforesaid premises - Accordingly waive requirement of pre-deposit of the demand during pendency of the appeal.
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2010 (8) TMI 581
Denial of refund claim - Claim for refund of service tax paid under Notification No. 41/2007-S.T., dated 6-10-2007 - Held that: as per the decision of Aarvee Denims & Exports Ltd. v. CCE (2009 -TMI - 35009 - CESTAT, AHMEDABAD), wherein this Tribunal has held as per Circular No. 112/6/2009-S.T. dated 12-3-2009, even if the service provided is registered for providing one service refund cannot be denied on the ground that the taxable service provided are not covered under the registration. Hence, the denial of refund claim on the ground that the appellant is not registered under the “Business Auxiliary Service” is not sustainable - The appeal is allowed with consequential relief by setting aside the impugned order.
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2010 (8) TMI 578
Addition - Forward contract - the assessee evaluates the unmatured forward contracts on the last day of the accounting period on the basis of rate of foreign exchange prevailing on that date and books the loss or profit - income arising from securities and on debenture to the assessee is liable to be taxed on due basis or on the basis of day to day - Supreme Court in the case of another bank, namely United Commercial Bank, [1999 -TMI - 5764 - SUPREME Court] - Held that: the issue has been decided in favour of the view that the interest accrues only on the specified coupon dates and not on day to day basis - Accordingly the appeal is decided in the favour of the assessee Regarding disallowance on account of broken period interest paid by the assessee - securities had been classified as investments in Schedule -8 to the balance sheet - Merely the classification of the securities as investment in balance sheet is of no consequence and the real income is to be determined as per the return filed by the assessee - Accordingly the ground is dismissed Regarding addition on account of deferred guarantee commission - The fundamental principle of taxing the income under the mercantile system of accounting is time of its accrual - If the guarantee commission was refundable then it cannot be said that absolute right to the commission had accrued in favour of the assessee at the time of execution of contract for furnishing guarantee by it but if the guarantee commission was not depended upon the period of guarantee and, thus, had accrued in favour of the assessee on the date of execution of contract for furnishing guaratnee then the same has to be taxed in the year in which the guarantee was furnished irrespective of the period to which guarantee remained alive - Appeal is allowed by way of remand Regarding interest attributable to investment, dividends from which is exempt from tax - At the time of hearing, it was brought to the notice of both the parties that the issue is pending before the Hon’ble Bombay High Court in regard to 14A issue and, therefore, the appeal may be adjourned sine die till the disposal of the same by the Hon’ble High Court - Appeal is allowed by way of remand Regarding forward contract - The loss claimed by the assessee is in accordance with a recognized method of accounting - The moot point for consideration is whether keeping in view the nature of contract, can it be said that a liability accrued on 31st March in respect of unmatured forward foreign exchange contract on account of fluctuation in rate of foreign currency or not - the issues relating to accrual of income cannot be decided on the same footing and considerations on which the issues relating to loss/expense is to be decided - Accounting Standard - 11, mandates that in a situation like in the present case, since the transaction is not settled in the same accounting period, the effect of exchange difference has to be recorded on 31st March - when profits are being taxed by the department in respect of such unmatured forward foreign exchange contracts then there was no reason to disallow the loss as claimed by assessee in respect of same contracts on the same footing - Accordingly decided in the favour of the assessee
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2010 (8) TMI 577
Appeal to Appellate Tribunal - The primary dispute relates to applicability of Notification No. 32/04 and consequently determining the value for the purpose of assessment of the service tax as to whether it is 100% or 25% of the gross amount received by them - the matter deserves to be placed before the Division Bench - It is incumbent on representatives of either side to assist the Tribunal on the issue of jurisdiction whenever the matter is listed before the Single Member Bench.
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2010 (8) TMI 576
Waiver of pre-deposit - Business Exhibition Service - It is a factual finding that the amounts collected by the appellant are towards rent for hiring of various stalls - the activity which is undertaken by the appellant by hiring out the facilities, prima facie, may not get covered under the definition of ‘business exhibition’ services - In view of this, application for the waiver of pre-deposit of the amounts involved is allowed and the recovery thereof stayed in the above terms
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2010 (8) TMI 572
Penalty - Assessee had paid the tax due before the issue of show cause notice and also paid interest after the original authority had confirmed the demand - The lower authorities did not record a finding that the failure to pay the impugned amount of service tax had arisen due to fraud, suppression of facts, willful mis-statement etc. on the part of the assessee - Therefore, the original authority had rightly held that the assessee was not liable to penalty under Sections 76 and 77 of the Act - The appellants on the strength of the judgment of the Hon’ble High Court of Karnataka in CCE, Bangalore-II v. Sunitha Shetty (2004 -TMI - 170 - HIGH COURT (KARNATAKA)), that once the original authority had waived penalty imposable on the assessee exercising discretion conferred on him under Section 80 of the Act, the Revisionary Authority could not validly impose such penalties or enhance the penalty already imposed - Hence, the penalties imposed in the impugned order are therefore liable to be set aside.
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2010 (8) TMI 571
Waiver of pre-deposit - Penalty under Sections 76, 77 & 78 - The assessee did not respond to the several communications made by the first appellate authority - The assessee had belatedly filed ST-3 returns after issue of show cause notice - Therefore, penalties imposed by the adjudicating authority and sustained by the Commissioner (Appeals). Held that: the show cause notice basic to the proceedings invoked non-existent provision Section 72 of the Act - The Commissioner (Appeals) did not give any finding justifying the order of the original authority - Prima facie, the order of the original authority and the impugned order are not sustainable - The assessee had already paid the tax due, applicable interest and also filed the tax returns - Waiver of pre-deposit of the amounts is allowed.
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2010 (8) TMI 570
Drawback - Supplementary claims - Limitation - The appellants submitted that they have filed the shipping bills under Rule 13 of the Drawback Rules, 1995 and as per Rule 13, Duty Drawback is to be sanctioned immediately when the same is put on EDI data - Instead of challenging the said assessment held by the Hon’ble Apex Court in the case of Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) and Commissioner of Central Excise, Kanpur v. Flock (India) Pvt. Ltd., the appellants chose to file supplementary claim in form Annexure-III under Rule 15 and the Commissioner has dealt with that supplementary claim holding that as per Rule 15 of the said Rules, the claim is barred by limitation - The appellant has filed supplementary claim and the Commissioner has rejected their supplementary claim under Rule 15 - Hence, do not find any infirmity in the impugned order rejecting the claim as time-barred
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2010 (8) TMI 566
Suspension of CHA licences - Notification No. 102/2007-Cus. dt. 14-9-07 - The refund claims filed by assessee are required to be verified by the proper officer, who has to sanction the same - how the present CHA can be said to have aided and abetted the importers for grant of refund by merely filing the same before Assistant Commissioner, who is proper officer to examine the claim and to sanction or reject the same - The claims having been actually sanctioned by the Assistant Commissioner, the appellant’s act of helping another CHA in filing claim, cannot be held to be mala fide or violative of any provisions of the rules - Even if that be so, the adjudicating authority having passed the refund claim, the CHA cannot be attributed with any contravention by merely filing the refund claim so as to invite suspension of his licence Regarding certain department files were recovered from the official premises of the said CHA - Once the appellant takes a plea of there being a practice in Customs House of supplying the files to CHA for various purposes of completion or typing etc. the Commissioner was duty bound to verify the above fact and record the finding thereto - There is nothing in the impugned order of Commissioner to the effect that such files were procured by the present CHA without consent of the officer - The appellants have also argued that they are one of the leading CHA and there was no irregularity or illegality or lapse committed by them at any point of time, in the present case also, no detailed enquiry has been made - Decided in the favour of the assessee
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2010 (8) TMI 565
Waiver of pre-deposite - Area base exemption - under Notification No. 49/03-C.E., dated 10-6-2006 - Expansion carried out by way of increased installed capacity of 25% - In July, 2002, the appellants themselves had informed U.P. Financial Corporation that they had undertaken the project to improve the production capacity by approximately 25% and the same was in operation within 12 months and it could show the results - Further, on 18-1-2003, they had reported that modernization project was still in progress - They had nowhere stated that modernization had started on or after January, 2003, rather it was continuous process which had commenced prior to July, 2002 - The claim of the appellants of having procured machines from the firm after 7th January, 2003 - Even invoice in relation to one of the products which stated to be procured in relation to expansion programme of the appellants is dated 23-7-2002 -If the expansion programme had commenced on or after January, 2003, how and why the product in that regard could have been procured in July, 2002 in relation to such expansion programme - Obviously it was for the appellants to disclose that if they were interested to claim the benefit for which they had to satisfy that they had complied with the requirements of the conditions prescribed under the notification - Rejection of benefit found to be correct. Financial hardship - the appellants in the applications for stay have stated that due to fire in the factory on 15-11-2007, the appellants were unable to pay term loan instalment and interest and therefore the bankers had re-scheduled the payment of term loan for the period December, 2008 to December, 2010 - Even the chart discloses fall in the production percentage though the actual production shows constant increase year by year - The re-scheduling of the term loan was for the purpose of payment from 31st March, 2010 - They are already in August, 2010 - Financial hardship is to be considered as on the date of consideration of the matter - Hence, no case has been made out for total waiver of the entire amount demanded under the impugned order.
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2010 (8) TMI 562
Limitation - Condonation of delay - Appeal is delayed by 30 days - For condonation of this delay, the appellant has submitted that he was “mentally disturbed and was in continuous stress” and hence unable to pursue the appellate remedy - According to the appellant, the order was received by him only on 22-8-2008 - This claim is contradictory to his own admission that a copy of the order had been received earlier but returned to the department - The Revenue has produced documentary evidence of the order having been personally served on appellant’s advocate on 4-4-2007 - Section 153 of the Customs Act, 1962 provides the procedure for service of orders, notices etc. It provides for direct service of an order on the person for whom it is intended, or on his agent The advocate holding vakalat of the appellant before the Commissioner was acting as an agent of the appellant - That the department also served a copy of the order on the appellant by its despatch by registered post, properly addressed and duly pre-paid - No overriding case law has been cited by the learned Counsel in this context to establish to the contra - There is no explanation for the delay of the appeal - Hence, the application is dismissed.
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2010 (8) TMI 561
Demand - CENVAT credit - Scrap is of capital goods - The appellants took credit on the capital goods first time on 18-8-2001 - Whatever scrap cleared by them during the period prior to 1-4-2000 were clearly arising out of capital goods on which appellants had not taken any credit - The appellants have produced the original invoices issued by client during the relevant period in their favour and the original authority after perusing the same, held that the assessee failed to produce original records co-relating the scrap with the goods as per the invoices - The issue that was required to be considered was whether the waste and scrap have arisen out of capital, goods on which credit has been taken by the appellants - The burden is on the department to prove that the credit on the said capital goods have been taken before invoking Rule 57-S. The evidence adduced by the appellants are clearly pointing to their not availing any credit on the capital goods for the period prior to 31-3-2010 - The submission by the consultant that during the disputed period defacement of invoices on which credit was taken was mandatory and that invoices produced by them before the original authority were invoices which were not defaced and the same is an evidence to show that no credit was taken is also valid - The order of the Commissioner (Appeals) is set aside and appeal is allowed
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2010 (8) TMI 560
Cenvat credit - Shortages of raw materials - During the search of the factory premises and physical stock verification, certain shortages of raw materials were detected - Said raw material is lying in the factory premises of their sister unit due to shortage of space in their premises on account of rainy season - The Commissioner (Appeals) has observed that once the Cenvat Credit is taken on the raw material, there is no provision in the Cenvat Credit Rules to remove the input from the premises except after debiting of credit so availed. Find that this is not a case of clearance of Modvatable input from the factory premises but it is a case of temporary removal and storage of input in the adjacent factory premises, which is a sister unit of the appellant - The appellate authority has observed that they could have shifted the raw material outside their factory premises by issuing gate pass and reversing the credit and later on taking re-credit as and when they were in a position to bring the raw material back - It becomes clear that this is only a procedural lapse- Such inputs were duly accounted for by the appellant in their statutory record and as such, they were under a legal obligation to show consumption of the same - Conclude that they were removing the goods with mala fide intention, in the absence of any evidence to the contrary, would not be in the interest of justice - Hence, set aside the impugned order and allow the appeal.
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2010 (8) TMI 556
Penalty - Procedural omission - Raw materials sent by the appellants to their job workers - After verification of the relevant records it was found that the goods sent to job workers though received back within 180days but entries had not been made which is basically a procedural omission - This itself would show that there was no intention to evade payment of duty - In the absence of any evidence to show that there was an attempt to divert the raw materials or not to utilize the same for the purpose for which they were obtained, it cannot be said that intention to evade payment of duty has been established - Under these circumstances imposition of penalty under Section 11AC read with Rule 15(2) of Cenvat Credit Rules cannot be sustained and is accordingly set aside.
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