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Showing 61 to 80 of 664 Records
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2005 (7) TMI 681
The Bombay High Court admitted an appeal regarding the validity of an order passed under section 263 of the Act. The respondent waived service and the hearing was expedited.
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2005 (7) TMI 680
Seeking for restoration of lands, transferred contrary to Section 4 of Act 2 of 1979 - original allottees who were either scheduled castes or scheduled tribes transferred the property to third parties without obtaining previous permission of the Government - Violations of conditions imposed by the Tahsildar in the 'Saguvali chit' restricting the alienation of such lands by the grantee - HELD THAT:- A careful scrutiny of the entire scheme of the rules relating to grant of lease to landless persons would show that the finding of the Full Bench on this issue is legally not sustainable. First of all, Rule 43-J is only a general rule which says that the lands which have been given on lease for agricultural purposes could be assigned to the lessees if they complied with the conditions of lease. The title to the land primarily vests with the Government. The Government while granting title to the lessees, can impose any conditions which are permissible under law. The land is being given to lessees either free of cost or at a price which is less than the full market price. It is not an outright sale made by the Government for full consideration.
In all these cases, lands were given almost free of cost. The upset price of the land was either fixed at ₹ 200-250 per acre and this ₹ 200 itself was waived and the grantee was to remit only ₹ 50 per acre. Grantee was to execute "Saguvali Chit" and it incorporated a condition prohibiting alienation for a period of 15 years. The history of the legislation also would show that the State of Karnataka has all along been giving lands to the landless persons belonging to Scheduled Castes and Scheduled Tribes subject to the restriction on alienation of such land.
It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the Government and the grantee and at that time the third party purchaser had no interest in such transaction. Of course, he would be entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, inspite of being aware of the condition.
The Full Bench seriously erred in holding that the land was granted under Rule 43-J and that the authorities were not empowered to impose any conditions regarding alienation without adverting to Section 4 of the Act 2 of 1979. These lands were given to landless persons almost free of cost and it was done as a social welfare measure to improve the conditions of poor landless persons. When these lands were purchased by third parties taking advantage of illiteracy and poverty of the grantees, Act 2 of 1979 was passed with a view to retrieve these lands from the third party purchasers.
In any case, the High Court failed to take into account the clear language employed in Section 4, according to which any transfer of granted land made either before or after the commencement of this Act 'in contravention of the terms of the grant of such land' shall be null and void(emphasis supplied). The violation of the terms of grant itself gives rise to the action u/s 4 read with Section 5. So long as the terms of the grant prohibiting transfer are not opposed to any specific provision of law, they cannot be violated and the transferee gets no rights by virtue of such invalid transfer. That is the sum and substance of Section 4 which has not been duly considered by the High Court.
The conditions restricting alienation imposed by the authorities are legally valid and the finding of the Full Bench to the contrary is not correct and the impugned Judgment is thus not sustainable in law. The impugned Judgment is set aside, the order passed by the learned Single Judge is upheld and these appeals are allowed. The authorities shall take appropriate steps pursuant to the order passed by the authorities under the Act 2 of 1979 within a period of three months.
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2005 (7) TMI 679
Issues:
Interpretation of Section 44AC of the Income Tax Act, 1961 regarding the treatment of "Nirgam Mulya" as part of bid money for a liquor contractor's taxable income for Assessment Year 1991-92.
Analysis:
The High Court of Allahabad was presented with a question of law regarding the treatment of "Nirgam Mulya" paid by a liquor contractor as part of the bid money for tax assessment purposes. The respondent assessee argued that "Nirgam Mulya" should not be considered as part of the purchase price under section 44AC of the Income Tax Act, 1961, as it represented the issue price forming part of the bid money. The assessee relied on a previous decision of the Income Tax Appellate Tribunal, Allahabad, to support this argument. However, the Assessing Officer, based on an explanation inserted in section 44AC of the Act from 1st April, 1991, considered "Nirgam Mulya" as part of the purchase price. The Commissioner of Income Tax (Appeals) upheld this decision, leading the respondent assessee to appeal before the Income-tax Appellate Tribunal, which ruled in favor of the assessee, stating that "Nirgam Mulya" was part of the bid money and therefore outside the scope of section 44AC.
The High Court referred to a Supreme Court case, Union of India vs. A. Sanyasi Rao, which clarified that the provisions of Section 44AC do not eliminate the requirement for regular assessment under Sections 28 to 43C of the Act. The Supreme Court also confirmed the validity of Section 44AC as legislation related to Section 206 C of the Act. In light of this precedent, the High Court concluded that the question of whether "Nirgam Mulya" should be excluded or included beyond the purview of Section 44AC was irrelevant. As a result, the High Court returned the question unanswered, deeming it academic in nature.
This judgment highlights the importance of interpreting tax laws in accordance with established legal principles and precedents. It emphasizes the significance of considering both statutory provisions and judicial decisions in determining the tax treatment of specific components of income, such as "Nirgam Mulya" in this case. The High Court's decision underscores the need for consistency and adherence to legal frameworks in tax assessments to ensure fairness and compliance with the law.
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2005 (7) TMI 678
Issues Involved:
1. Entitlement to pay revision benefits for teachers superannuating during an academic year but continuing in service under Rule 62 of Chapter XIV (A) of the Kerala Education Rules, 1959.
2. Interpretation of Rule 60(c) of the Kerala Service Rules regarding increment and promotion during the extended service period.
Detailed Analysis:
1. Entitlement to Pay Revision Benefits:
The core issue in these appeals is whether teachers who superannuate during an academic year but continue in service under Rule 62 of Chapter XIV (A) of the Kerala Education Rules, 1959 (KER) are entitled to pay revision benefits effective during the extended period. The teachers in question were due to retire at 55 but continued until the end of the academic year, which concluded on March 31, 1997. The Government of Kerala revised the pay scales effective from March 1, 1997. The teachers filed writ petitions claiming the revised pay scale benefits for pensionary calculations. The Single Judges allowed these petitions, and the Division Bench, noting conflicting views, referred the matter to a Full Bench. The Full Bench affirmed the teachers' entitlement to the revised pay scale. The State's appeals against this judgment were dismissed, leading to the present appeals.
2. Interpretation of Rule 60(c) of the Kerala Service Rules:
The appellant-State argued that Rule 60(c) of the Kerala Service Rules explicitly denies increment or promotion benefits during the extended service period beyond superannuation. They contended that this rule should be interpreted to include pay revisions as well, suggesting it was a case of "casus omissus" (an omission in the law). However, the Court emphasized that statutory provisions must be interpreted based on their clear and unambiguous language. The Court cannot read into the statute what is not explicitly stated by the legislature. Rule 60(c) specifically mentions ineligibility for increment or promotion but does not address pay revisions. The Court held that the terms "increment" and "pay revision" are conceptually distinct. Increment refers to regular salary increases within the same pay scale, while pay revision involves a change in the pay scale itself.
Legal Principles Applied:
- The Court reiterated that statutory interpretation must adhere to the plain language of the provision. Courts cannot add or modify words in a statute unless absolutely necessary to avoid absurdity or inconsistency.
- The principle of "casus omissus" cannot be readily inferred and should be applied only in cases of clear necessity within the statute's framework.
- The Court highlighted that "increment" and "pay revision" have distinct meanings in service law, with increment being a regular increase within a pay scale and pay revision involving a change in the pay scale.
Conclusion:
The Court concluded that the teachers were entitled to the benefits of the pay revision effective from March 1, 1997, during their extended service period. The High Court's judgment granting these benefits did not suffer from any infirmity, and thus, the appeals were dismissed with no orders as to costs.
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2005 (7) TMI 677
Issues:
1. Validity of the claim for depreciation on gas cylinders purchased from M/s. Puja Gases Ltd.
2. Disallowance of depreciation and lease rentals by the Assessing Officer.
3. Decision of the CIT(A) in favor of the Respondent.
4. Dismissal of the appeal by the Tribunal.
5. Consideration of evidence by the Tribunal.
6. Tribunal's analysis of discrepancies and contradictions.
7. Tribunal's conclusion on the genuineness of the transaction.
8. Judicial review of the Tribunal's decision.
9. Acceptance of lease rentals for subsequent assessment years.
Validity of the claim for depreciation on gas cylinders purchased from M/s. Puja Gases Ltd.:
The Appellant challenged the order passed by the Income-tax Appellate Tribunal regarding the purchase of 505 oxygen gas cylinders from M/s. Puja Gases Ltd. for a total consideration of Rs. 14,14,000. The Assessing Officer disallowed the depreciation claim as he found M/s. Puja Gases Ltd. to be non-existent, labeling the transaction as bogus. However, the CIT(A) ruled in favor of the Respondent, considering the transaction genuine.
Disallowance of depreciation and lease rentals by the Assessing Officer:
The Assessing Officer disallowed the depreciation claim and lease rentals earned by the Respondent due to doubts regarding the existence of M/s. Puja Gases Ltd. and the authenticity of the transaction. Despite the Respondent's appeal to the Tribunal, the order was upheld.
Decision of the CIT(A) in favor of the Respondent:
The CIT(A) accepted the contentions of the Respondent, deeming the transaction legitimate and ruling in favor of the Respondent.
Dismissal of the appeal by the Tribunal:
The Tribunal dismissed the Appellant's appeal, considering various documents provided by the Respondent, including bills, delivery challans, and payment receipts. The Tribunal highlighted that the business of M/s. Puja Gases Ltd. was managed by Mr. A.S. Chowdhry's son, who had passed away, and emphasized that the buyer's concern was the receipt of goods rather than the seller's existence.
Consideration of evidence by the Tribunal:
The Tribunal carefully reviewed the evidence, including payment receipts, affidavits, and statements, to ascertain the genuineness of the transaction. It noted discrepancies but focused on the substantial documentation supporting the sale of gas cylinders to the Respondent.
Tribunal's analysis of discrepancies and contradictions:
The Tribunal acknowledged minor discrepancies, such as differing signatures, but deemed them insignificant as long as the primary transaction was supported by adequate documentation.
Tribunal's conclusion on the genuineness of the transaction:
After analyzing the evidence, the Tribunal concluded that the Assessing Officer's suspicions were unfounded, and there was no reason to allow the Revenue's appeal. The Tribunal emphasized the importance of the transaction's substance over minor discrepancies.
Judicial review of the Tribunal's decision:
The High Court upheld the Tribunal's decision, stating that while different views on the transaction's genuineness were possible, as long as the Tribunal's view was not perverse, no substantial legal question arose. The Court found the Tribunal's decision based on the evidence and statements provided.
Acceptance of lease rentals for subsequent assessment years:
The Court noted that lease rentals declared and received by the Respondent for subsequent assessment years had been accepted by the Assessing Officer, indicating consistency and further supporting the legitimacy of the transactions.
In conclusion, the High Court dismissed the appeal, affirming the Tribunal's decision based on the evidence and documentation presented, highlighting the importance of substance over minor discrepancies in transactions.
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2005 (7) TMI 676
Supreme Court dismissed special leave petitions, leaving the question of law open. (2005 (7) TMI 676 - SC)
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2005 (7) TMI 675
Issues:
Challenge to legality of judgment on date of birth discrepancy.
Analysis:
The case involves a dispute over the date of birth of an employee, where the State claimed the date to be 1.9.1930, but the employee asserted it to be 1.9.1939. The High Court allowed the writ petition, accepting the employee's claim due to the State's failure to produce service records. The appellant argued that the service book was indeed filed along with an affidavit, showing the date of birth as 1.9.1930, and various documents supported this date consistently. The appellant contended that the respondent's claim was belated and unsustainable. The Supreme Court highlighted the importance of maintaining accurate service records, especially regarding dates of birth, to avoid disputes near retirement. Various precedents were cited to emphasize the need for timely correction of such records and the consequences of delayed claims. The Court found the High Court's decision erroneous, ruling in favor of the State's recorded date of birth, 1.9.1930. The employee was entitled to retiral benefits up to the actual date of superannuation, 30.9.1990, but not for the period beyond that until the erroneous date claimed by the employee, 31.1.1991. The appeal was allowed with no costs.
This judgment underscores the significance of accurate service records, particularly regarding dates of birth, in public service. It emphasizes the need for timely correction of any errors to prevent disputes, especially near retirement. The Court highlighted the adverse impact of delayed claims on the promotion prospects of other employees and the importance of conclusive evidence to support any correction of records. The ruling reaffirmed the principle that corrections to service records, including dates of birth, should be made within a reasonable time and based on irrefutable proof. The judgment also clarified the implications of erroneous date claims on retiral benefits, ensuring fairness in such cases.
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2005 (7) TMI 674
The Supreme Court upheld the Appellate Tribunal's decision that a certificate from the Vehicle Research and Development Establishment confirmed an ambulance with unfolded stretchers can carry 13 persons, leading to the classification of the chassis under sub-heading 8706.29 of the Central Excise Tariff Act, 1985.
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2005 (7) TMI 673
Suit for ejectment on the ground of expiry of the lease - Seeking renewal of the lease - lease agreement - Possession on lease of the suit premises for running a Petrol Pump - ’holding over’ as a lessee within the meaning of Section 116 - HELD THAT:- In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the circumstances, could not claim that he was ’holding over’ as a lessee within the meaning of Section 116 of the Transfer of Property Act.
So far as the cross suit for specific performance of agreement of renewal of lease filed by the lessee is concerned, there are concurrent findings of all the courts that the option for renewal was exercised after the expiry of the lease period. The option for renewal exercised was, therefore, contrary to terms of clause (9) of the lease agreement.
The clauses of renewal requiring fixation of terms and conditions for renewed period of lease mutually or in the alterntive through village Mukhia and Panchas are uncertain and incapable of specific performance. After legal notice of renewal, the lessor did not send any positive reply and instead filed a suit for ejectment, therefore, there was no mutual consent for renewal. The forum agreed to for deciding dispute was through local Mukhia and Panchas of the village. The renewal clauses of the agreement were vague and incapable of specific performance. The Mukhia and Panchas were not named in the agreement and the method of choosing either of the two forums was not specified.
The cross suit filed by the lessor for specific performance of the agreement of renewal was rightly dismissed throughout. The original period of lease expired on 19.7.1977 and the suit for ejectment on the ground of expiry of the lease was filed on 16.6.1978 which was well within the period of limitation and rightly decreed.
As the leased premises were in use for running a petrol pump, we grant the appellant a reasonable period of two months from the date of this order to deliver possession of the leased premises after removing her installations and other movables.
The above grace period to vacate is granted to the appellant only on her filing an undertaking on affidavit to this Court, within a period of two months that she would pay all arrears of rent and mesne profits at the originally agreed rate for the total period of occupation of the property. The lessee shall also undertake to deliver vacant possession of the property in the same condition in which it was initially taken.
Thus, we find no merits in these appeals preferred by the lessee, they are accordingly dismissed with costs.
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2005 (7) TMI 672
Pre-deposit - repairing activity - failed to pay service tax - Penalty - HELD THAT:- The activity of repairing by the appellants, in our prima facie view is not covered by a service rendered by the Port or any person authorised by the Board to do so, inasmuch as the provisions of section 42(e) cannot be extended and stretched so as to cover the repairing activity. We also find favour in the ld. Advocate’s arguments that sub-section (4) of Section 42 provides for authorisation by the Board for the various services, at the rate specified by a notification in the official gazette. This reflects upon the fact that the various services, which can be authorised by the Board by any person are routine service for which various rates can be fixed.
As far as repairing of the vessel, chipping and painting is concerned, the charges would definitely depend upon the extent of work required to be done. Such consideration, we have been told, depends upon the contract arrived at after negotiations. As such, prima facie, we are of the view that the services of repairing of the vessels are not Port Services and not liable to service tax during the relevant period. We, accordingly, allow the stay petition unconditionally and fix the main appeal itself on 5 August 2005.
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2005 (7) TMI 671
Issues:
1. Claim for concessional assessment of customs duty on imported goods for melting purposes.
2. Failure to produce end-use certificate leading to demand of customs duty.
3. Dismissal of appeals before Commissioner of Customs (Appeals) and Customs, Excise and Service Tax Appellate Tribunal.
4. Challenge of Departmental orders in a writ petition.
Analysis:
The appellant imported heavy melting scrap and sought a concessional assessment of customs duty by committing to use the goods for melting purposes in the induction furnace. The Department accepted the claim but required the appellant to produce a certificate from the Assistant Commissioner of Central Excise confirming the goods' utilization for manufacturing activity. Despite multiple reminders, the appellant failed to provide the certificate. Consequently, the Deputy Commissioner of Customs conducted a regular assessment, demanding a sum of Rs. 7,09,995 based on the bond executed by the appellant. The appellant's appeal before the Commissioner of Customs (Appeals) was dismissed due to the non-production of the end-use certificate. Subsequently, an appeal was made to the Customs, Excise and Service Tax Appellate Tribunal, which was rejected on grounds of a 210-day delay, with the application for condonation dismissed for lack of sufficient cause shown by the appellant.
The writ petition challenging all Departmental orders was dismissed by the learned single Judge, leading to the present writ appeal. The High Court, comprising N.K. Sodhi, CJ and S. Abdul Nazeer, J., after hearing the appellant's counsel, found no error justifying intervention under Article 226 of the Constitution. The Court upheld the Departmental Officers' decisions, emphasizing the appellant's failure to provide the end-use certificate as agreed. Consequently, the writ appeal was deemed meritless and dismissed, affirming the previous rulings against the appellant.
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2005 (7) TMI 670
The Supreme Court dismissed the Civil Appeal, with no reason to interfere. Delay was condoned. (Case citation: 2005 (7) TMI 670 - SC)
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2005 (7) TMI 669
Issues Involved: Penalty imposed under Section 76 and Section 77 of the Finance Act, 1994 for default in payment of Service Tax and delay in filing returns.
Penalty under Section 76:
The appellants, engaged in testing and calibration services, defaulted in paying Service Tax for April 2002 to September 2003, leading to a penalty of &8377; 48,997/- imposed by lower authorities under Section 76. The appeal sought leniency in penalty amount, claiming ignorance of law as the reason for the default. However, the Tribunal found that ignorance of law does not constitute a "reasonable cause" under Section 80 of the Act, which provides for penalty exemption in certain cases. As the appellants were not eligible for Section 80 benefit, the penalty under Section 76 was upheld, and the appeal was dismissed.
Penalty under Section 77:
In addition to the penalty under Section 76, a penalty of &8377; 1000/- was imposed under Section 77 for the delay in filing Service Tax returns for the same period. The appellants argued that the delay was due to lack of awareness of the penal consequences. However, the Tribunal reiterated that ignorance of law does not qualify as a reasonable cause under Section 80, which exempts penalties in specific situations. As the appellants failed to prove a reasonable cause for the delay, the penalty under Section 77 was upheld along with the penalty under Section 76, leading to the dismissal of the appeal.
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2005 (7) TMI 668
Denial of application filled for registration u/s 12AA - charitable institution - object of executing housing and improvement schemes - activities of the authority are not charitable in nature within the meaning of section 2(15) of the Act - HELD THAT:- From the perusal of the objects of the Parishad, we find that the objects of the Parishad were to frame and execute the housing and improvement schemes and other projects: to plan and coordinate various housing activities in the State and to ensure expeditious and efficient implementation of housing and improvement schemes in the State. As regards the other Authorities before us. We have perused the UPUPD Act, 1973. Section 4 of the said Act provides that State Government may by notification in the Gazette constitute for the purposes of this Act, an Authority to be called the Development Authority for any development area. The Authorities before us have been constituted by the Government under this section. Section 7 of the said Act has also provided for the objects of these Authorities as mentioned.
Needless to say that as per clause 4 of Land Acquisition Act. the land could be acquired only for public purposes. Section 57 of the said Act also provides that Authorities could make its bye-laws with the approval of the State Government. Section 58 provides that in case of dissolution of the Authority, all the properties, funds and dues which are vested in or realizable by the Authority, shall vest in or to be realizable by the State Government. Various sections of the said Act make it abundantly clear that the activities of the Authorities were aimed at public purposes and not personal one. We, therefore, have no hesitation in holding that the activities of the assessees before us are for enhancement of general public utility and the ld. CIT was not justified in relating registration u/s 12AA of the Act.
From the perusal of various documents on record, there is no dispute that the activities of the assessees before us were genuine and object of the assessees was in consonance with its creation. Even on these two grounds, the ld. CIT was not justified in refusing registration u/s 12A of the Act. The ld. CIT could not take shelter of any other outer source for refusing registration u/s 12A of the Act.
In the present appeals. CIT has not brought any material nor recorded any finding to hold that activities of assessees were not genuine. In our opinion, it is not easy, in case of statutory body, like, market board or market committee controlled by Governments to hold, that activities of such bodies are not genuine. We are, therefore, unable to agree that these cases were not fit cases for recording satisfaction as required u/s 12AA of the by Income-tax Act. About object of the institutions, we have already held that those are genuine and are of charitable nature.
Some other objections have been raised by the Revenue in the impugned orders and during the course of arguments before us like the committees and boards being managed by public servants, collection of fines by committees, no voluntary contribution by outsiders etc. We do not find any substance in these objections. At the stage of registration, the learned Commissioner has only to record his satisfaction about the genuineness of activities of the institution and its charitable purposes. The above conditions are not shown to be not satisfied in these cases. We, therefore, do not see any hurdle in their claim relating to Registration u/s 12AA.
Thus, we are of the view that the assessees are entitled to registration under section 12AA of the Act. We therefore, direct, the ld. CIT to register all the authorities in appeal before us u/s 12AA of the Act.
In the result, all the appeals directed by the assessees are allowed.
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2005 (7) TMI 667
Exemption u/s 10A - eligibility of "Eagle Software" - HELD THAT:- In the cross-objection, the assessee desires that the amount received from sale of "Eagle Software" be charged under the head 'Capital gains' and not as revenue receipts. CIT(A) while holding that the amount is eligible for exemption u/s 10A, held as under:
'' We find that "Eagle Software" was designed and developed by the assessee during the course of its business in development of software. Thus, it cannot be said that assessee acquires certain capital asset. Design and development of software are part of a business activity of assessee company and hence, any amount realized on sale of such product is to be treated as trading receipt only. From the records, we find that the assessee has furnished all necessary details to show that the sale was affected through the eligible STP unit. The sale of STP unit started after 1st Sept., 1994. Thus, profit from sale of such software is eligible for deduction under s. 10A of the Act. The profit arises not at the time of manufacture but at the time when it is ultimately sold. Since the product was sold through the STP unit, the same is eligible for deduction as profit of eligible STP unit as provided u/s. 10A of the Act. We accordingly do not find any reason to arrive at a view other than that arrived by learned CIT(A).''
In the result, the appeal of assessee is partly allowed. The appeal of Revenue and the cross-objection by assessee are dismissed.
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2005 (7) TMI 666
Issues:
1. Whether the Tribunal was justified in deleting the penalty under section 271(1)(c) due to the finally assessed income being a loss?
Analysis:
The High Court of Bombay, consisting of Judges R. S. Radhakrishnan & J.H. Bhatia, heard the appeal with Dr. P. Daniel and Mr. G. Hariharan representing the Appellant. The substantial question of law raised was whether the Tribunal's deletion of the penalty under section 271(1)(c) was justified given that the finally assessed income resulted in a loss. The learned counsel, Dr. Daniel, acknowledged that the Supreme Court had already addressed this issue in Commissioner of Income Tax Vs. Prithipal Singh and Co. 249 ITR 670. Dr. Daniel confirmed that the question had been answered by the Supreme Court, leading to the conclusion that the Tribunal was indeed justified in deleting the penalty. Consequently, the question was resolved against the Revenue and in favor of the Respondent, resulting in the disposal of the appeal accordingly.
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2005 (7) TMI 665
Issues Involved:
1. Justification of High Court's exercise of power under Article 226 of the Constitution of India to award compensation.
2. Determination of negligence and liability for electrocution deaths.
3. Maintainability of writ petitions involving disputed questions of fact.
4. Applicability of previous Supreme Court judgments on similar issues.
Issue-wise Detailed Analysis:
1. Justification of High Court's Exercise of Power Under Article 226:
The primary question in these appeals was whether the High Court was justified in exercising its power under Article 226 of the Constitution of India to award compensation to the respondents. The appellants contended that the deaths were not due to their negligence but due to the respondents' negligence, an act of God, or actions by third parties. The Supreme Court held that the High Court committed an error in entertaining writ petitions under Article 226 for cases involving disputed facts and tort actions. The Court emphasized that negligence must be established by the claimants and that such matters should typically be resolved in civil courts, not through writ petitions.
2. Determination of Negligence and Liability:
In Civil Appeal No. 1726 of 1999, the facts revealed that unauthorized power connections taken by villagers led to the electrocution deaths. The appellants argued that the deaths were due to the negligence of the deceased and unauthorized connections. The High Court had directed the appellants to pay compensation, which the Supreme Court found erroneous without a proper finding of negligence. Similarly, in Civil Appeal No. 9788 of 1998, the deceased was electrocuted due to a snapped conductor during a storm. The High Court awarded compensation despite a previous suit dismissal, which the Supreme Court found unjustified. In Civil Appeal No. 5591 of 1999, the deceased was electrocuted by a snapped live wire, and the High Court awarded compensation despite the appellants' denial of negligence. The Supreme Court reiterated that negligence must be proven, and the High Court's findings were insufficient.
3. Maintainability of Writ Petitions Involving Disputed Questions of Fact:
The Supreme Court emphasized that writ petitions under Article 226 are not suitable for cases involving disputed questions of fact. The Court referred to its previous judgment in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others Vs. Sukamani Das (Smt.) and another, which held that such matters should be resolved in civil courts. The Court noted that the High Court should have directed the writ petitioners to approach civil courts, as disputed facts cannot be adequately resolved through affidavits in writ jurisdiction.
4. Applicability of Previous Supreme Court Judgments:
The Supreme Court referred to its earlier decisions, including Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others Vs. Sukamani Das (Smt.) and another, and W.B. State Electricity Board & Ors. Vs. Sachin Banerjee & Ors., which held that negligence must be established, and writ petitions are not appropriate for disputed fact cases. The Court distinguished the case cited by the respondent, M.P. Electricity Board Vs. Shail Kumari & Ors., where negligence was established in a civil suit, making it inapplicable to the present cases. The Court also referred to H.S.E.B. and others Vs. Ram Nath and others, where compensation was awarded due to uncontroverted facts, unlike the present cases with disputed facts.
Conclusion:
The Supreme Court concluded that the High Court had erred in exercising its power under Article 226 without properly appreciating its jurisdiction. The impugned judgments were set aside, but the appellants were not to recover amounts already paid to the respondents. The civil appeals were disposed of accordingly, with no costs awarded.
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2005 (7) TMI 664
Wrongly declared the value of the goods - liability of confiscation of the imported waste oil - barrels of 44 gallons each - advance licences - evasion of duty - DEEC Scheme for duty free imports - time-barred demand - Penalty - violation of instructions of the RBI Manual - Notification No. 204/92 - misstatement and suppression of facts in the invoices - HELD THAT-: After taking into account of exports, we find that still the appellants were not able to fulfil the export obligation for each of the advance licences. The figures of short fall worked out in annexure T3 to T7 to show cause notice were accepted by the appellants during hearing of appeals. Therefore, Shri J.M. Sharma counsel for the appellants stated that they are liable to pay duty of ₹ 4,40,539/- for import of the waste oil at Jaipur for which the export obligation was not fulfilled on adopting unit of British gallon. He also accepted that on adoption of British gallon, the appellants were not able to fulfil the export obligation for imports at Mumbai and they are liable to pay duty of ₹ 3,95,761/-. Thus, the appellants are liable to pay customs duty of ₹ 4,40,539/- at Jaipur and ₹ 3,95,761/- at Mumbai, in respect of imports made against advance licences no. 2277827 dated 5-11-92 and 1535022 to 1535025 all dated 26-2-93.
There was a clear misstatement and suppression of facts in the invoices. They had given false declaration of quantity in para (e) of declaration submitted along with the shipping bills for use of waste oil in manufacture of refined lube oil exported. They have made false declaration in shipping bill before the customs that entire quantity of raw material has been utilized for meeting export obligation under the relevant licences. This attempt on the part of the appellant is with intention to defraud the Revenue by misstating the facts and by suppressing the real facts from the department. Therefore, we are convinced that extended period for demanding duty was applicable. We find that none of the demand is beyond the period of 5 years and this position was conceded by Shri J.M. Sharma, the learned counsel for appellants.
liability of confiscation of the imported waste oil - The Commissioner of Customs, Mumbai has given finding that he is not confiscating the oil imported through Mumbai Port, as it is not available for confiscation, we are not interfering with this findings as it is not challenged before us. We find that the Commissioner of Customs, Jaipur has given finding that the imported goods (waste oil) valued at ₹ 11,23,891/- are liable for confiscation under Sections 111(o) and 113(d) of the Customs Act corresponding to show cause notice dated 23-7-98 and he ordered these goods to be redeemed on the redemption fine of ₹ 3,00,000/-. We find that that the appellants have not been able to export the refined lubricating oil manufactured out of imported waste oil corresponding to the quantity of 12490 gallon in respect of licence no. 1535024 (Annexure T-6 of show cause notice) and 40957 gallon in respect of licence no. 1535025 (annexure T-7 of show cause notice), the value of these two quantities which were imported but corresponding export was not made works out to (Rs. 1,35,915/- plus ₹ 4,45,553/-) ₹ 5,83,468/-. Therefore, the redemption fine imposed by the Commissioner, Jaipur amounting to ₹ 3,00,000/- is reduced to ₹ 1,50,000/-.
We find that charge of violation of condition no. (v) of Notification No. 204/92 dated 19-5-92 is established against M/s. Vibhuti Exports, as discussed above. We also find that they have imported waste oil and had not exported the goods to the full extent as discussed above and thus made the imported goods liable for confiscation as they have not met the export obligation. Therefore, M/s. Vibhuti Exports are liable for penalty under Section 112(a) of the Customs Act.
For non-recovery of the value of the goods exported during the extended period allowed by the DGFT, any action for violation law relating to non-recovery of Foreign Exchange or for violation of instructions of the RBI Manual, the competent authorities under the respective law has to take action. The customs authority has no role in deciding this issue. Therefore, on this account, no penalty can be imposed. Penalty imposed under Section 114 of the Customs Act by Commissioner of Customs, Jaipur is set aside as no final order passed by any competent authority regarding the violation of the Foreign Exchange or RBI Manual was referred to by the Commissioner which would have rendered the goods liable for confiscation for violating of condition (vii) of Notification 204/92.
Regarding penalty of ₹ 6,00,000/- imposed by the Commissioner of Customs, Jaipur, we find that it is imposed for the evasion of duty on imported waste oil used in exported goods during the extended period allowed by the licensing authority for meeting the export obligation. These goods have been taken as used in export production. Therefore, the imported waste oil used in refined lube oil exported during the extended period has to be considered as duly used for fulfilment of export obligation. Such exports are also entered in the DEEC Book. Therefore, this penalty can not sustain.
In view of above, we modify the order of the Commissioner of Customs, Jaipur and orders of the Commissioner of Customs, Mumbai in the following manner :- (1) Order of the Commissioner of Customs, Jaipur (C/681 and 682/02) :-
(i) The demand of ₹ 16,40,941/- is reduced to ₹ 4,40,539/-.
(ii) Penalty of ₹ 12,00,000/- imposed on M/s. Vibhuti Exports under Section 114 of the Customs Act, is set aside.
(iii) Redemption fine is reduced from ₹ 3,00,000/- to ₹ 1,50,000/-.
(iv) Penalty of ₹ 8,00,000/- imposed on Shri Gulab Chand Jagetia is reduced to ₹ 2,00,000/-.
Rest of the order is upheld - Order passed by the Commissioner of Customs, Mumbai is set aside.
All the eight appeals are disposed of in the above manner.
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2005 (7) TMI 663
Issues involved: Interpretation of eligibility for exemption u/s 10A of the Income Tax Act, 1961 and entitlement to deduction u/s 80HHE.
Interpretation of eligibility for exemption u/s 10A:
The High Court upheld the Tribunal's finding that the respondent-assessee was not an old unit disentitled to the benefit of exemption u/s 10A. The matter was remitted back to the assessing officer with directions to allow exemption u/s 10A if all other requisites were satisfied. If not, the claim of deduction u/s 80HHE should be allowed after providing an opportunity to meet the requisites. The Court found the direction just and proper, as the determination of whether the assessee satisfies the pre-requisites for benefit under section 10A is within the assessing officer's purview.
Entitlement to deduction u/s 80HHE:
The Court also noted that the entitlement of the assessee to seek deduction u/s 80HHE was left to be determined by the assessing officer, contingent upon the assessee satisfying the pre-requisites stipulated for the grant of such benefit under the provision. No substantial question of law arose for consideration in the appeal, leading to its dismissal in limine.
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2005 (7) TMI 662
Supreme Court dismissed the appeal in the case with citation 2005 (7) TMI 662 - SC. Judgement by Justices Ashok Bhan and S.B. Sinha.
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