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Showing 81 to 100 of 740 Records
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2008 (4) TMI 756
Issues involved: The appeal involves issues related to provisional assessment under Rule 7 of the Central Excise Rules 2002, liability to pay interest under sub-rule (4) of Rule 7, interpretation of Section 11-AB of the Central Excise Act, and the correct application of interest on duty payable.
Provisional Assessment under Rule 7: The appeal concerns 13 cases of provisional assessment under Rule 7 of the Central Excise Rules 2002. Rule 7 allows an assessee to request the Assistant/Deputy Commissioner to pay duty on a provisional basis when unable to determine the value of excisable goods or the applicable duty rate. The rule mandates the assessee to pay the difference between the provisionally assessed duty and the final duty amount. The case involves a dispute regarding the liability to pay interest under sub-rule (4) of Rule 7.
Interpretation of Section 11-AB: The Revenue argued that interest is chargeable on the duty payable when it becomes due, as per Section 11-AB of the Central Excise Act. However, the Commissioner (Appeals) held that interest is payable from the month following the finalization of assessments. The Tribunal found this interpretation to be in conflict with the law, specifically Rule 7(4) which states that interest is payable from the first day of the month following the assessment.
Correct Application of Interest: The Tribunal clarified that interest is to be paid from the first day of the month following the assessment, as per Rule 7(4). The liability to pay interest arises when the final assessment is made, and the interest is calculated on the differential amount between the provisionally paid duty and the final duty amount. The Tribunal set aside the Commissioner (Appeals) order and directed the original authority to quantify the interest in accordance with the law and the Tribunal's observations.
Conclusion: The Tribunal's decision emphasized the correct application of interest on duty payable under provisional assessment cases, highlighting that interest is payable from the month following the assessment. The case was remanded to the original authority for the quantification of interest in line with the legal provisions.
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2008 (4) TMI 755
Issues Involved:
The judgment involves the issues of disallowance of deduction u/s 80IA of the Income Tax Act and the disallowance of deduction claimed for expenses incurred in connection with issuing shares to employees under the Employees Stock Option Scheme (ESOPS).
Disallowance of Deduction u/s 80IA:
The assessee, engaged in works contracts and civil contracts, contested the disallowance of deduction u/s 80IA for the assessment year 2001-02. The CIT (A) refused to admit additional evidence related to the deduction, citing that the audit reports required for the claim should have been filed before the Assessing Officer. The CIT (A) concluded that the assessee failed to demonstrate eligibility for the deduction as it did not operate any infrastructural facility. The Special Bench decided to admit the additional evidence and directed the matter to be reconsidered by the Assessing Officer, allowing the assessee to present further evidence.
Admission of Additional Evidence and Legal Issues:
The Special Bench considered the legal issues arising from the CIT (A) order, including whether merely having a development agreement was sufficient for deduction u/s 80IA, the requirement for ownership to transfer the facility to the Government, and the definition of a developer in the context of infrastructure projects. The Special Bench acknowledged the complexity of the case and the need to examine the facts in detail. Ultimately, the Special Bench admitted the additional evidence and remanded the entire issue back to the Assessing Officer for fresh consideration, allowing the assessee to present any additional material.
Conclusion:
The Special Bench allowed the appeal of the assessee for statistical purposes, directing a fresh consideration of the disallowance of deduction u/s 80IA and the expenses on ESOPs by the Assessing Officer. The judgment was pronounced on 25-4-2008.
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2008 (4) TMI 754
Issues involved:
The issue involved in this case is whether penalty under section 271(1)(c) could be levied if the returned income is a loss.
Judgment Details:
Issue 1: Clarificatory nature of the amendment
The Supreme Court rejected the Department's argument that the amendment made by the Finance Act, 2002 was clarificatory in nature and applicable retrospectively. The Court emphasized that the statute expressly stated that the amendment would take effect only from 1st April, 2003, and therefore, it cannot be applied to any period prior to that date. The Court held that a statement in the Notes on Clauses cannot bind the Court when even a statement in the statute itself is not regarded as binding or conclusive.
Issue 2: Reconsideration of the point laid down
Considering the nature of the amendment in section 271 and a previous judgment, the Court decided that the point laid down by the Division Bench in a previous case needed reconsideration. The matter was directed to be placed before the learned Chief Justice for appropriate directions.
Issue 3: Department's stance on penalty
The Additional Solicitor General stated that even if the Department were to succeed ultimately before the Larger Bench, they would not demand penalty from the assessee as the Department's primary concern was obtaining an authoritative decision on the question of law concerning the interpretation of section 271(1)(c) as amended by the Finance Act, 2002.
This judgment addresses the issue of the clarificatory nature of an amendment, the need for reconsideration of a previous point laid down, and the Department's stance on penalty in a case involving section 271(1)(c) of the Income Tax Act.
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2008 (4) TMI 753
Addition u/s 68 - sale procced of share treated as income from other sources - Long term capital gain - Purchase and Sale of Shares - genuineness of the transaction - HELD THAT:- The transaction entered into by the assessee is duly supported by purchase bill, contract note, delivery and transaction of share in her name which are also reflected in the balance sheet as on 31-3-2001 and on 31-3-2001. The sale bill with delivery contract note for sale of receipt of payment through account payee bank draft in bank account are also proved from the payment and is enclosed in the Paper Book of the assessee. On the other hand, to controvert the claim of the assessee there is no evidence in the possession of the department but the doubt has been created because the assessee could not produce that much evidence as was required by the learned Assessing Officer. There is no even a single evidence to show that these transactions were not genuine and the assessee had income from any other source(s) which might have been introduced by her in her books in the guise of long term capital gain to avoid payment of tax.
There is no evidence on record which can prove the sale consideration of shares which was duly supported by bills issued by broker and there is no evidence to prove that this amount represented unaccounted money of the assessee received in the guise of sale proceeds of shares. The learned Assessing Officer has not even invoked the provisions of section 68 and the fact remains that the assessee disclosed the sale of shares and receipt thereof in her return of income and has claimed exemption under section 54EC. So there is no case of treating these sales proceeds as income from other sources.
Following the case of ITO v. Smt. Kusumlata [2006 (8) TMI 266 - ITAT JODHPUR], We decide the issue in favour of the assessee and the factual matrix supplement the version of the assessee and there being no evidence on record to supplant the contention of the assessee, there is no question of making addition on the amount under the provisions of section 68 of the Act. To further strengthen my above finding, reference may be made to the decision which was recently delivered in the case of CIT v. Anupam Kapoor [2007 (2) TMI 159 - PUNJAB AND HARYANA HIGH COURT].
Hence, the addition in question cannot be made in the hands of the assessee u/s 68 and this amount is to be deleted from her hand.
Appeal of the assessee is allowed.
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2008 (4) TMI 752
Issues involved: Appeal u/s 260A of the Income-tax Act, 1961 against the order of the Income-tax Appellate Tribunal for the assessment year 1995-96.
Issue 1: Validity of notice u/s 143(2)(ii) in case of return filed in compliance with notice u/s 148.
The Tribunal held the assessment order invalid due to notice u/s 143(2) not issued within prescribed time. The revenue argued that an amendment in section 148 by the Finance Act, 2006 deems such notices valid if issued before the time-limit for assessment. The Court found merit in the revenue's argument and referred to the amended section 148, remanding the matter to the Tribunal for fresh consideration.
Issue 2: Validity of assessments completed u/s 143(3)/147 without notice u/s 143(3).
The Tribunal's decision was based on Nawal Kishor & Sons Jeweller case, stating non-issuance of notice u/s 143(3) is an irregularity, not a nullity. The Court, however, focused on the amended section 148, which deems notices u/s 143(2) valid if issued before assessment time-limit. Consequently, the Court allowed the appeal, setting aside the Tribunal's order and remanding the matter for reconsideration in light of the amended provision.
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2008 (4) TMI 751
Waiver of pre-deposit - CENVAT credit availed on the basis of invoices - Held that: - ince the issue requires detailed analysis of the evidence, we direct the applicant to deposit an amount of ₹ 10,00,000/- (Rupees ten lakhs) within eight weeks from today and report compliance on 30th June 2008 to the ld. Commissioner (Appeals).
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2008 (4) TMI 750
Issues Involved:
1. Legality of the Board's circulars and regulations.
2. Entitlement to time-bound promotional scales.
3. Discrimination in granting benefits to employees.
4. Validity of options exercised by employees for induction posts.
5. Anomalies in pay scales between senior and junior employees.
Detailed Analysis:
Legality of the Board's Circulars and Regulations:
The appellant Board, constituted under the Electricity (Supply) Act, 1948, is empowered to frame regulations regarding the terms and conditions of service for its employees under Section 79(c) of the Act. The Board has issued various circulars and regulations, such as the Punjab State Electricity Board Ministerial Services (Class III) Regulations, 1985, and several Finance Circulars, to manage pay scales and promotional benefits. The Supreme Court noted that the Board, even in the absence of express statutory provisions, can issue such circulars to manage service conditions, as affirmed in cases like Meghalaya State Electricity Board v. Jagadindra Arjun and Sohan Singh Sodhi v. Punjab State Electricity Board.
Entitlement to Time-Bound Promotional Scales:
The respondent, initially appointed as a Steno-Typist, was later promoted to Upper Division Clerk (UDC). The Board's scheme for time-bound promotions, as detailed in circulars issued on 23.4.1990 and subsequent dates, provided promotional scales after 9/16 years of regular service. However, the respondent's entitlement was disputed based on his promotion date and the completion of required service years. The Supreme Court observed that the respondent had opted for UDC as his induction post and had already availed the 9-year time-bound scale for UDC.
Discrimination in Granting Benefits to Employees:
The respondent argued that he faced discrimination as other employees were granted the benefit of choosing their induction post, which was denied to him. The Court noted that the Board had issued circulars allowing certain employees promoted before 1.1.1986 to exercise such options, but this was not extended to those promoted after this date. Despite the respondent's claims of discrimination, the Court held that the Board's decision was based on its regulations and circulars, which were not challenged for their validity.
Validity of Options Exercised by Employees for Induction Posts:
The respondent initially opted for UDC as his induction post but later sought to change this to LDC to avail better promotional benefits. The Supreme Court emphasized that employees must be aware of their rights and benefits when exercising such options. The Court held that once an option is exercised, it cannot be changed repeatedly, and any hardship resulting from a wrong option is the employee's responsibility.
Anomalies in Pay Scales Between Senior and Junior Employees:
The respondent highlighted pay anomalies where juniors received higher pay due to different induction post options. The Supreme Court acknowledged these anomalies and referred to the principle of stepping up pay to address such issues. The Court cited cases like Union of India v. P. Jagdish, where similar principles were applied to ensure senior employees did not receive less pay than their juniors. The Court directed that the respondent's pay be adjusted to match the scale of the next junior employee in the LDC post, without allowing dual induction post benefits.
Conclusion:
The Supreme Court partially allowed the appeals, directing the recalculation of the respondent's pay to match that of the next junior employee in the LDC post, while maintaining that the respondent cannot claim dual benefits for both LDC and UDC induction posts. The Court exercised its discretionary jurisdiction under Article 142 of the Constitution to ensure justice, considering the respondent's long service and qualifications. The appeals were allowed to the extent of recalculating the pay, with no order as to costs.
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2008 (4) TMI 749
Issues involved: Appeal against penalty u/s 271(1)(c) for furnishing inaccurate particulars of income.
Summary:
Issue 1: Background and facts of the case
The appeal by Revenue for asst. yr. 1999-2000 arises from the order under s. 271(1)(c) by the learned ITO-2(4), Agra. The assessee filed return of income under s. 139(1) but later a notice u/s 148 was issued based on information about alleged bogus entries of share transactions and undisclosed cash. The assessee claimed to have received a gift of Rs. 2,00,000 which was surrendered as undisclosed income during assessment proceedings. The penalty was imposed under s. 271(1)(c) by the AO, but deleted by CIT(A) citing lack of evidence to prove concealment of income.
Issue 2: Arguments of the Revenue and the Assessee
The Revenue contended that the assessee failed to prove the alleged gift and that additional evidence admitted by CIT(A) was in violation of IT Rules. The assessee argued that there was no deliberate concealment of income and the alleged long-term capital gain was never disclosed to the Revenue.
Issue 3: Decision and Reasoning
After reviewing the case records, it was found that the assessee did not disclose the alleged long-term capital gains in the original return or in response to the notice u/s 148. The AO's observations did not conclusively prove deliberate concealment or furnishing of inaccurate particulars of income. The Supreme Court has clarified that imposition of penalty is not automatic and requires a finding of guilty intent. In this case, the Revenue failed to establish concealment of taxable income or furnishing of inaccurate particulars. The surrender of the gift amount by the assessee, due to inability to prove it as desired by the AO, did not amount to concealment. The absence of proof of bogus long-term capital gains and lack of evidence led to the confirmation of the deletion of penalty by CIT(A).
Conclusion
The appeal against the penalty u/s 271(1)(c) was dismissed, upholding the decision to delete the penalty imposed on the assessee.
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2008 (4) TMI 748
The Delhi High Court admitted the case where the assessee did not appear. The court framed two substantial questions of law regarding the treatment of interest income earned on Fixed Deposit Receipts for export performance. The court ruled in favor of the revenue based on a previous decision.
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2008 (4) TMI 747
Issues Involved:
1. Set off of brought forward capital expenditure and operating loss.
2. Carry forward of excess capital expenditure by the Trust.
3. Exemption u/s 10(23C)(via) and diversion of funds.
Summary:
Issue 1: Set off of brought forward capital expenditure and operating loss
The department contested the CIT(A)'s decision to allow the set off of brought forward capital expenditure and operating loss, relying on the Bombay High Court's decision in CIT v. Institute of Banking (264 ITR 110). The CIT(A) directed the AO to grant set-off against the unabsorbed depreciation of the appellant society, referencing multiple judicial precedents supporting the assessee's claim. The ITAT upheld the CIT(A)'s order, emphasizing that income of a charitable trust should be computed on commercial principles, allowing adjustment of expenses incurred in earlier years against income of subsequent years.
Issue 2: Carry forward of excess capital expenditure by the Trust
The CIT(A) was criticized for not appreciating that neither sec. 11 nor any other provisions of the I.T. Act, 1961 specifically permit carry forward of excess capital expenditure incurred by the Trust. However, the CIT(A) clarified that the AO should grant a set off of unabsorbed depreciation and losses as per law, and upheld the registration u/s 12A, which the AO had no power to withdraw. The ITAT supported this view, following the Bombay High Court's ruling that excess expenditure in earlier years can be adjusted against subsequent years' income.
Issue 3: Exemption u/s 10(23C)(via) and diversion of funds
The AO denied the exemption u/s 10(23C)(via) due to alleged diversion of funds, bringing long-term capital gains to tax. The CIT(A) found no personal utilization of society's funds by its secretary and noted that the society was consistently treated as exempt in previous and subsequent years. The ITAT noted the Karnataka High Court's remand for reconsideration of payments made to certain individuals, but focused on the issue of set off, ultimately upholding the CIT(A)'s decision based on the Bombay High Court's principles.
Conclusion:
The ITAT dismissed the revenue's appeals and allowed the cross objections, affirming the CIT(A)'s direction to allow set off of brought forward capital expenditure and operating loss, and the carry forward of excess capital expenditure, in line with the Bombay High Court's decision in CIT v. Institute of Banking.
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2008 (4) TMI 746
Issues involved:
The judgment addresses the following Issues:
1. Justification of the Income Tax Appellate Tribunal's decision regarding delay in filing application under Section 12A of the Income Tax Act and registration of the respondent Authority.
2. Determination of whether Surat Urban Development Authority qualifies as a 'charitable trust' and needs registration under Section 12A of the Income Tax Act.
3. Alleged error by the Income Tax Appellate Tribunal in interpreting Section 10(20) and Section 10(20A) of the Income Tax Act post the Finance Act, 2002.
Issue 1:
The Tribunal considered whether the Surat Urban Development Authority (SUDA) was working for public utility advancement without a profit motive. It was noted that similar Urban Development Authorities had been granted registration under Section 12A of the Act by the Department. In a specific case regarding Jamnagar Area Development Authority, the Tribunal condoned delay in registration application based on bonafide belief and granted registration, directing the Commissioner of Income Tax to pass a speaking order. The Tribunal emphasized the need for assessing business income at the time of assessment, not registration.
Issue 2:
Arguments were made that SUDA, being created under the Gujarat Town Planning Act like other Urban Development Authorities, should be entitled to registration under Section 12A of the Act. Reference was made to precedents where registration was granted to similar authorities. The Tribunal, based on previous decisions and the Gujarat High Court's judgment, concluded that SUDA should be granted registration under Section 12A of the Act.
Issue 3:
The learned counsel for the assessee cited judgments in support of condoning delay in registration application, including the case of Collector, Land Acquisition v/s Mst. Katiji. The Department's stance, supported by the decision in Adityapur Industrial Area Development Authority v/s UOI, was that Area Development Authorities were not covered under the exemption of Section 20A. However, the Tribunal, considering past orders and the Gujarat High Court's decision, held that SUDA was entitled to registration under Section 12A of the Act and the delay in application should be condoned.
The judgment affirmed the Tribunal's decision, emphasizing consistency with previous rulings and the Department's actions in granting registration to similar authorities. The appeal was dismissed based on the established legal principles and precedents.
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2008 (4) TMI 745
Issues Involved:
1. Validity of the proviso appended to Section 68C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Jurisdiction of the Competent Authority to initiate proceedings against a citizen residing outside India.
3. Constitutionality of the proviso to Section 68C with respect to Article 14 of the Constitution of India.
4. Validity of the show cause notice issued under Section 68E read with Section 68H of the NDPS Act.
Detailed Analysis:
1. Validity of the Proviso Appended to Section 68C of the NDPS Act:
The primary issue in this appeal was the validity of the proviso appended to Section 68C of the NDPS Act, as it stood prior to its amendment by Act No. 9 of 2001. The original proviso stated, "Provided that no property shall be forfeited under this Chapter, if such property was acquired by a person to whom this Act applies before a period of six years from the date on which he was charged for an offence relating to illicit traffic." This was amended to include a period of six years from the date of arrest, issuance of a warrant, or detention order. The appellant contended that the classification made by the statute, which did not provide a period of limitation for persons detained under preventive detention, was arbitrary and violated Article 14 of the Constitution.
2. Jurisdiction of the Competent Authority:
The appellant initially contended that the Competent Authority had no jurisdiction to initiate proceedings under the NDPS Act against a citizen residing outside India. However, this contention was not pressed during the proceedings before the Supreme Court.
3. Constitutionality of the Proviso with Respect to Article 14:
The appellant argued that the classification made by the proviso to Section 68C, as it stood prior to the 2001 amendment, was ultra vires Article 14 of the Constitution. The Supreme Court upheld the classification, stating that a law can be constitutional even if it affects an individual, and there is a presumption in favor of the constitutionality of an enactment. The Court emphasized that the principle of equality does not mean that every law must have universal application for all persons who are similarly situated. The Court cited previous judgments to support the view that reasonable classification is permissible under Article 14, and the burden of proving that a statute is unconstitutional lies on the person challenging it.
4. Validity of the Show Cause Notice:
The appellant contended that the show cause notice did not contain the necessary reasons as required under Section 68E read with Section 68H of the NDPS Act. However, the Supreme Court noted that the contentions raised in the appeal were not raised before the Appellate Authority or the High Court, and the order of the High Court dated 15.12.1999 had attained finality. The Court held that the proceedings could not be reopened and the principle of 'Constructive Res Judicata' applied to writ proceedings. The Court also noted that the documents necessary to determine the question were not before it.
Conclusion:
The Supreme Court dismissed the appeal, concluding that the proviso to Section 68C, as amended in 2001, did not violate Article 14 of the Constitution. The Court held that the classification made by the statute was reasonable and had a substantial relation to the object sought to be achieved. The appeal was dismissed with costs, and the counsel's fee was assessed at Rs. 50,000.
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2008 (4) TMI 744
CENVAT credit - inputs used in, or in relation to, the manufacture of the exempted final product has been paid prior to the removal of the exempted final products from the factory - Held that: - matter referred to Larger Bench to decide the issue Whether the provisions of Rule 6 (3) (b) of the Cenvat Credit Rules, 2002 are applicable or not, when the amount equivalent to the Cenvat credit attributable to the inputs used in, or in relation to, the manufacture of the exempted final product has been paid prior to the removal of the exempted final product from the factory? - matter referred to Larger Bench.
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2008 (4) TMI 743
Issues Involved:
1. Classification of computer software expenses as capital or revenue expenditure.
2. Disallowance of bad debts claim.
3. Computation of long-term capital gain on the sale of property.
4. Applicability of interest u/s 234D.
5. Disallowance of professional fees for software.
6. Disallowance of depreciation on residential premises used by the Managing Director.
Summary:
1. Classification of Computer Software Expenses:
The assessee contended that the computer software expenses, including upgradation, maintenance, and support, should be treated as revenue expenditure. The Tribunal, referencing the Special Bench decision in AMWAY Enterprises vs. DCIT, restored the matter to the AO for reconsideration. Both the assessee's and Revenue's appeals on this issue were allowed for statistical purposes.
2. Disallowance of Bad Debts Claim:
The assessee's claim of Rs. 28,13,116/- as bad debts was disallowed by the AO, who argued that the assessee failed to prove the debts had become bad. The Tribunal, citing the Special Bench decision in DCIT vs. Oman International Bank, held that post-amendment, the assessee is not required to prove that the debt has actually become bad. The Tribunal accepted the assessee's ground and dismissed the Revenue's ground, favoring the assessee.
3. Computation of Long-Term Capital Gain:
The assessee disputed the computation of long-term capital gain on the sale of property, arguing that the indexed cost of acquisition should be based on the year of allotment (1993-94). The Tribunal, referencing its own decisions in similar cases, held that the indexed cost of acquisition as computed by the assessee is correct. The Tribunal reversed the CIT(A)'s order and directed the AO to accept the assessee's computation.
4. Applicability of Interest u/s 234D:
Both parties agreed that the issue of interest u/s 234D, concerning refunds granted prior to June 1, 2003, should be decided based on the pending Special Bench decision. The Tribunal restored the issue to the AO to decide in accordance with the Special Bench's decision and any higher judicial forum's decision available at that time.
5. Disallowance of Professional Fees for Software:
The AO treated the professional fees for software as capital expenditure. The CIT(A) allowed it as revenue expenditure, stating it was for facilitating the company's operations. The Tribunal upheld the CIT(A)'s decision, agreeing that the expenses were related to the company's operations and thus revenue in nature.
6. Disallowance of Depreciation on Residential Premises:
The AO disallowed depreciation on residential flats used by the company's directors/employees, arguing they were not used for business purposes. The CIT(A) allowed the depreciation, and the Tribunal upheld this decision, referencing the Karnataka High Court's decision in CIT vs. McDowell and Co., which allowed depreciation on residential accommodation used by company officials.
Conclusion:
The assessee's appeal was partly allowed, and the Revenue's appeal was partly allowed for statistical purposes. The Tribunal pronounced the order in the open court on April 30, 2008.
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2008 (4) TMI 742
Issues:
Challenge against penalty imposed under Section 11AC of the Central Excise Act, read with Rule 15(2) of the Cenvat Rules.
Analysis:
The appeals in this case arose from three different orders but were disposed of collectively due to the identical issue at hand - the challenge against the penalty imposed on the appellants under Section 11AC of the Central Excise Act, in conjunction with Rule 15(2) of the Cenvat Rules.
Upon hearing both sides, it was established that the appellants were involved in manufacturing grey fabrics and had received raw materials, specifically yarn, from other appellants using Central Excise invoices. They availed Cenvat credit and paid Central Excise duty on the final product, which was then cleared to a specific exporter. Subsequently, investigations revealed suspicions regarding the legitimacy of the raw material suppliers, leading to proceedings against the appellants. The original adjudicating authority reduced the rebate claim of the exporter and imposed penalties on the appellants, prompting the present appeals.
The appellants vehemently denied the allegations of using fake invoices for availing credit, emphasizing that they had received polyester yarn from various legitimate suppliers. They argued that since no duty demand was confirmed against them under Section 11A(2) of the Central Excise Act, the penal provisions of Section 11AC could not be invoked.
The presiding judge concurred with the appellants' arguments, noting the lack of concrete evidence establishing the suppliers as fake and the absence of duty confirmation against the appellants under Section 11A(2). Given these circumstances, the judge ruled that Section 11AC penalties could not be justified. Consequently, the penalties imposed on the appellants were set aside, and all appeals were allowed, granting consequential relief to the appellants.
This judgment highlights the importance of concrete evidence and adherence to statutory provisions in invoking penal provisions under the Central Excise Act. The decision underscores the necessity for duty confirmation against an individual before imposing penalties under Section 11AC, ensuring procedural fairness and safeguarding against unwarranted penal consequences.
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2008 (4) TMI 741
Refund - Non challenge of assessment order - Held that: - as the order fixing the annual capacity of stenter was not challenged by the respondent and the duty was paid accordingly, therefore, the respondent cannot be challenged the correctness of that order in the refund claim - appeal allowed - decided in favor of Revenue.
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2008 (4) TMI 740
Issues involved:
The issue involves the admission of an additional ground raised by the assessee regarding the expenditure incurred and shown in the balance sheet for a different assessment year.
Summary:
The High Court considered the case where the assessee had incurred an expenditure of Rs. 13,10,566 as business expenditure, which was shown as a prior period expense in the balance sheet for the assessment year 2003-04, but actually pertained to the assessment year 2001-02. The assessee did not raise this issue before the Assessing Officer or the Commissioner of Income-tax (Appeals). When the assessee sought to raise this additional ground before the Income-tax Appellate Tribunal, it was declined on the basis that the accounts were audited and finalized before the order was passed by the CIT(A). The Tribunal relied on previous decisions and held that since the facts were not before them, they could not adjudicate the claim.
The counsel for the assessee argued that even though the expenditure was genuine, the assessee could not benefit from it for either assessment year. Referring to a decision by the Kerala High Court, the counsel contended that the Tribunal should have remanded the matter to the Assessing Officer to investigate and determine the facts rather than declining to permit the additional ground.
In line with the Kerala High Court's view, the High Court answered the substantial question of law in favor of the assessee and remanded the matter to the Assessing Officer to determine the claim on its merits. The appeal was disposed of accordingly.
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2008 (4) TMI 739
The Supreme Court dismissed the appeal in the case with citation 2008 (4) TMI 739 - SC. Justices S.H. Kapadia and B. Sudershan Reddy delivered the order.
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2008 (4) TMI 738
Issues involved:
The judgment involves the following Issues:
1. Whether notice under Section 4-I of the U.P. Industrial Disputes Act, 1956 was mandatory before altering service conditions.
2. Whether the respondent had the power to frame and amend regulations under Section 122 of the U.P. Cooperative Societies Act, 1965.
Issue 1: Notice under U.P. Industrial Disputes Act, 1956:
The appellant challenged the change in the definition of "Crushing Season" affecting employment length and wages. The High Court rejected the writ petition, stating no notice was required as per the Third Schedule. However, the Supreme Court disagreed, finding the change impacted service conditions and required notice under Section 4-I. The change in "Crushing Season" directly affected wages, falling under the Third Schedule, necessitating notice to affected employees.
Issue 2: Power to frame and amend regulations:
The Supreme Court did not delve into this issue due to the finding on the first issue. The judgment set aside the High Court's decision, allowing the appellant's writ petition. The Court emphasized the necessity of serving notice before altering service conditions, as mandated by the U.P. Industrial Disputes Act, 1956. The appeal was allowed without costs, with the respondent permitted to amend the "Crushing Season" definition in compliance with the law.
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2008 (4) TMI 737
Issues Involved:
1. Applicability of Order XXXIV Rule 14 CPC.
2. Relationship of mortgagor and mortgagee post-auction sale.
3. Application of Section 90 of the Indian Trusts Act.
4. Right of redemption and limitation period.
Summary:
1. Applicability of Order XXXIV Rule 14 CPC:
The appellants contended that the money decree obtained in O.S. No. 120/51-52 was independent and not connected with the mortgage claim, thus Order XXXIV Rule 14 CPC was not applicable. However, the High Court found that the decree was for satisfaction of claims arising under the mortgage, making Order XXXIV Rule 14 CPC applicable. The Supreme Court agreed, stating that bringing the mortgaged property for sale in execution of the decree was barred under Order XXXIV Rule 14 CPC.
2. Relationship of Mortgagor and Mortgagee Post-Auction Sale:
The appellants argued that the relationship of mortgagor and mortgagee ceased after the auction sale. The Supreme Court, however, held that the relationship continued to subsist, and the purchase by the mortgagee was in trust for the mortgagor. The principle "once a mortgage, always a mortgage" was upheld, meaning the right to redeem was not extinguished.
3. Application of Section 90 of the Indian Trusts Act:
The Court applied Section 90 of the Indian Trusts Act, stating that the mortgagee gained an advantage by availing himself of his position, which must be held in trust for the mortgagor. The purchase by the mortgagee in the auction sale was deemed to be in trust for the mortgagor, preventing the mortgagee from exploiting the situation.
4. Right of Redemption and Limitation Period:
The Supreme Court confirmed that the right to redeem the mortgage was not extinguished and the suit for redemption was filed within the prescribed limitation period of 30 years as per Article 61 of the Limitation Act, 1963. The High Court's decision to grant a preliminary decree for redemption was upheld.
Conclusion:
The appeal was dismissed, affirming the High Court's judgment granting the preliminary decree for redemption, with no order as to costs.
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9911796707
