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Showing 81 to 100 of 723 Records
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2009 (5) TMI 942 - CESTAT MUMBAI
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... ... ..... the court cannot read anything into a statutory provision or stipulated condition which is plain and unambiguous. The language employed in the stature is determinative factor of legislative intent. 8. In Union Budget of 1996 97, Section 11AC of the Central Excise Act, 1944 was introduced which has made the position clear that there is no scope for any discretion. The provision stating that the levy of penalty is mandatory penalty. 9. I am in agreement with the contention of the ld. SDR wherein it was held in the case of Union of India & Ors. Vs. M/s. Dharmendra Textile Processors & ors., (cited supra) by the Apex Court that under Section 11AC of Central Excise Act, 1944 equivalent penalty is leviable as confirmed by the adjudicating authority and further confirmed by the Apex Court in the case of CCE, Tirupati vs. Morarcho Pipes Ltd. 3.11.2008. Hence the appeal is allowed. Cross Objection filed by the respondent is also accordingly disposed of. (Pronounced in Court)
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2009 (5) TMI 941 - SUPREME COURT
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... ... ..... xtent that the retrospectivity can be challenged. However, for that there has to be a tangible benefit awarded like promotion or pay-scale or a rate of pension. Such is not the state of affairs in the present case. The Court also made reference to the decision in State of J&K Vs. Triloki Nath Khosa reported in 1974(1) SCC 19, wherein it was held that impugned Rules did not recall a promotion already made or reduce a pay-scale already granted. 23. In short, law regarding the retrospectivity or retroactive operation regarding the Rules of selection is that where such amended Rules affect the benefit already given, then alone such Rules would not be permissible to the extent of retrospectivity. 24. We are unable to agree with the judgment of the High Court and would choose to set aside the same. It is accordingly set aside. Accordingly, the Writ Petitions filed before the High Court are also dismissed. However, in the circumstances, there shall be no orders as to the costs.
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2009 (5) TMI 940 - BOMBAY HIGH COURT
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... ... ..... ivision Bench, after considering the law in extenso, has come to conclusion that director is not liable. In the instant case, the petitioner had resigned on 1.12.1994. The bill of entry had been filed on 19.1.1994. However, no statutory provision has been shown under the Customs Act or for that matter under the provisions of Customs (Attachment of Property of Defaulters for recovery of Government Dues) Rules, 1995 making a Director liable for the dues of a company. In our opinion, the Judgment in Sunil Parmeshwar Mittal (cited supra) will have to be followed. 4. In the light of that, Rule is made absolute in terms of prayer (a).
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2009 (5) TMI 939 - CESTAT MUMBAI
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... ... ..... cisable goods, the Bench found that outdoor catering services were used in the factory - canteen for supply of food to the workers and that the cost of food so supplied formed a part of the cost of production of excisable goods. 6. I have gone through the records and find that I have not come across any pleadings as to the number of workers in the factory and as to whether the cost of supply of food in the factory - canteen formed a part of the assessable value of the excisable goods during the material period. 7. The appeal is allowed by way of remand to the adjudicating authority to examine the following- (a) Number of workers in the factor'. (b) Whether the cost of supply of food in the factory - canteen formed a part of the assessable value of the excisable goods during the material period. and pass the appropriate order within 60 days of the receipt of this order. Accordingly the appeal filed by the Revenue and Cross Objection by the appellants are also disposed of.
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2009 (5) TMI 938 - CALCUTTA HIGH COURT
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... ... ..... 377; 6,45,000/- has been denied and the amount is now lying with the department. Having heard the learned advocates for the parties since I find that a sum of ₹ 6,45,000/- is lying secured with the department, considering such fact the writ petition is disposed of by directing the Commissioner of Appeals to hear out the appeal arising out of the order in original dated 14th November, 2005 without insisting on the predeposit of ₹ 1 lakh as directed by the Tribunal by the order dated 25th April, 2007 within a period of eight weeks from the date of communication of this order. The order of the learned Tribunal passed on 25th April, 2007 is modified to the extent as indicated. It is also made clear that the petitioner shall go on renewing the bank guarantee till order is passed by the Commissioner of Customs (Appeals) and communicated to the parties. No order as to costs. All parties concerned are to act on a signed xerox copy of this order on the usual undertakings.
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2009 (5) TMI 937 - ITAT BANGLORE
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... ... ..... tituted for the word "receivable" identical amendment was also carried out in clause (a) of subsection (2) of section 80HHC. Thus, the assessing officer was directed to consequently exclude the disputed amount of foreign exchange fluctuation difference from the income of the current year and include it in the income of the immediately preceding year in which the exports were made by the assessee and allow deduction accordingly in accordance with and subject to the provisions of the section in such earlier year." 13.4. Respectfully following the decision of ITAT, Mumbai (Special Bench) referred supra which is similar to the instant case, the AO is directed to allow deduction accordingly in conformity with the above said finding and with order relevant provisions of the Act. It is ordered accordingly. 14. In the result, the Revenue's appeal is dismissed and the assessee's Cross Objection is partly allowed. Pronounced in the open court on this 29.05.2009.
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2009 (5) TMI 936 - ITAT DELHI
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... ... ..... erification has found that even though the AO had stated that the assessee has not filed any details, the AO in his order-sheet dated 19-11-2007 has admitted the filing of the information. It is further noticed that the learned CIT(A) has considered the fact that the assessee had produced the contract notes of the shares transacted by the assessee and this has also not been shown by the AO to be false, fabricated or wrong. Thus, it is noticed that the learned CIT(A) has in the absence of adverse inference about the share transactions relating to the sale consideration of R. 13,82,375/- has deleted the addition. Even before us, the learned DR has not been able to produce any evidence contrary to the finding as recorded by the learned CIT(A). In the circumstances, we are of the view that the learned CIT(A) has taken a correct view and no interference is called for in his order. 6. In the result, revenue’s appeal is dismissed. Order pronounced in open court on 25-05-2009.
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2009 (5) TMI 935 - ITAT MUMBAI
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... ... ..... ection 254(2) of the Act, this corrigendum is passed to give effect to the change in the Assessment Year as under “The Assessment Year in the order dated 6th May, 2009 in the cause title just below the ITA No.1785/Mum/2007 may be read as Assessment Year 2003-04”.
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2009 (5) TMI 934 - SUPREME COURT
Presumption of correctness of the nomination paper -`decision making process' - Determining the genuineness of signatures of the two proposers - Names of the proposers were forged - rejection of nomination - Instructions contained in the Handbook are binding - Returning Officer as ''Statutory authority'' - Nature of Jurisdiction of High Court in election petition ''Original or Appellate'' - HC dismissed the election petition opining that the returning officer had not committed any error in his decision making process in rejecting the nomination paper.
HELD THAT:- Section 100 of the Act provides for the grounds for declaring election to be void inter alia in a case where a nomination has been improperly rejected. Improper rejection of a nomination, on a plain reading, in our opinion, would not mean that for the said purpose an election petitioner can only show an error in the decision making process by a Returning Officer but also the correctness of the said decision. Indisputably, there exists a distinction between a decision making process adopted by a statutory authority and the merit of the decision. Whereas in the former, the court would apply the standard of judicial review, in the latter, it may enter into the merit of the matter.
Even in applying the standard of judicial review, we are of the opinion that the scope thereof having been expanded in recent times, viz., other than, (i) illegality, (ii) irrationality and (iii) procedural impropriety, an error of fact touching the merit of the decision vis-`-vis the decision making process would also come within the purview of the power of judicial review.
The Returning Officer is a statutory authority. While exercising his power u/s 36 of the Act, he exercises a quasi-judicial power. For the said purpose, the statute mandates him to take a decision. A duty of substantial significance is cast on him. As in the present case, by his order the fulcrum of the democratic process, viz., election can be set at naught. While exercising his quasi-judicial power, in terms of the provisions of the Act, it was incumbent upon the Returning Officer to follow the instructions contained in the Handbook. It provides for:
(i) opportunity to be given to candidate to rebut the objections by placing sufficient materials on record:
(ii) A presumption of validity of such nomination paper.
Indisputably, the instructions are binding being statutory in nature. Rakesh Kumar v. Sunil Kumar[2003 (10) TMI 634 - SUPREME COURT]
The Presumption of correctness of the nomination paper being statutory in nature, as intention of the Parliament as also the Election Commission was that even if somebody had filed an improper nomination, but for which he can be given benefit of doubt being a possible subject matter of an election petition where the question would be gone into in details, it was for the respondent herein to prove that the nomination paper prima facie did not contain the signatures of the proposers and, thus, were liable to be rejected.
A quasi- judicial authority while deciding an issue of fact may not insist upon a conclusive proof. While doing so, he has to form a prima facie view. Indisputably, however, in terms of sub-section (5) of Section 36 in Handbook for Returning Officers, if any objection is raised then while holding the summary inquiry in the matter of taking a decision on the objection as to whether the same is valid or not, he is not only required to record his brief decision for the same but further in case of doubt the benefit must go to the candidate and the nomination paper should be held to be valid although his view may be prima facie a plausible view or otherwise bona fide.
Evidence by way of an affidavit is one of the modes of proving a question of fact both under the Code of Civil Procedure as also under the Code of Criminal Procedure besides other special statutes recognizing the same. The Returning Officer, thus, while exercising his quasi judicial function could have appreciated the evidence brought on record by the parties by way of affidavits. A wrong question posed, leads to a wrong answer, which is a misdirection in law.
In an election petition, the High Court acts as a Court of original jurisdiction and the election petition is a civil trial and the jurisdiction in such a trial, stricto sensu cannot be said to be appellate in nature - The High Court despite being the Court of original jurisdiction acted as a court of appellate jurisdiction and dismissed the petition without allowing the parties to produce evidence in support of their contention.
As the matter has not been adjudicated on merits, we set aside the judgment and order passed by the High Court and remit the matter to the High Court to proceed in accordance with law and decide the dispute raised in the election petition in accordance with law as expeditiously as possible and at least within a period of six months from today. Since it is an election petition and is required to be decided within a period of six months, the High Court should make an endeavour to complete the trial within a period of six months from today, if necessary by holding a day to day trial.
However, a statutory right of a party to file an election petition cannot and, in our opinion, for all intent and purport, should not be denied only on the basis of a wrong concession made by a counsel. We have noticed hereinbefore the order passed in Application No. 1 of 2004 in Election Petition No. 1 of 2004. Therein, a contention was raised that the election petition was not based on corrupt practices. The concession, if any, was confined only to the said question, by reason thereof, a right vested in a suitor by reason of a statute could not have been taken away. [M.P. Gopalakrishnan Nair and Another v. State of Kerala and Others [2005 (4) TMI 568 - SUPREME COURT].
Therefore, we are of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly and the matter is remitted to the High Court for consideration of the matter afresh. The appeal is allowed with the aforementioned directions. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2009 (5) TMI 931 - ITAT, BANGALORE
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... ... ..... years 2002-03 and 2003-04) and a copy of the said order was filed. The Special Bench has held that the expenses which are to be deducted from the export turnover as per the definition in section 10B have also to be deducted from the total turnover, though the words 'total turnover' have not been defined. The position is the same so far as section 10A is concerned and this aspect has been recognized by the Special Bench in paragraph 38 of its order. Thus, though the order of the Special Bench was rendered only with regard to section 10B, since the material statutory provisions are identical in section 10A, the ratio of the order would equally apply to the interpretation of section 10A also. Therefore, applying the ratio of the order of the Special Bench cited above, we affirm the decision of the Commissioner of Income-tax (Appeals) and dismiss the appeal filed by the revenue with no order as to costs. 5. Order pronounced in the open court on this 1st day of May, 2009.
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2009 (5) TMI 930 - ITAT MUMBAI
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... ... ..... regarding levy of interest under s. 234D. The said section provides for levy of interest on the assessee in case refund issued to the assessee at the time of processing under s. 143(1) is subsequently found to be excessive at the time of assessment. The said provisions were however inserted only by the Finance Act, 2003 and are applicable only from asst. yr. 2004- 05 as held by the Special Bench of the Tribunal in the case of ITO v. Ekta. Promoters (P) Ltd. 2008 117 TTJ (Delhi)(SB) 289 2008 10 DTR (Delhi)(SB)(Trib) 563 2008 113 ITD 719 (Delhi)(SB). The assessment year involved in the present appeal is asst. yr. 2003-04 and therefore said provisions will not be applicable in case of assessee. We therefore respectfully following the decision of the Special Bench (supra) hold that levy of interest was not justified. Accordingly we set aside the order of CIT(A) and delete the interest levied. 5. In the result appeal of the assessee is partly allowed in terms of the order above.
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2009 (5) TMI 929 - GUJARAT HIGH COURT
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... ... ..... facts and in circumstances of the case, the Tribunal was right in law in holding that FDRs belonging to assessee trust were lent during A.Y. 200405 as required by section 13(2)(c) of the Income Tax Act, 1961 ? 3. Whether on the facts and in circumstances of the case, the Tribunal was right in law in holding that the unauthorized act of the son of a Trustee of making use of FDRs belonging to the assessee trust as security for borrowing money falls in section 13(2)(b) of the Income Tax Act, 1961 ?
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2009 (5) TMI 928 - ITAT JAIPUR
Trading addition - unproved purchases while computing business income - CIT(A) deleted the addition u/ss. 69 and 69C - he observed that the purchases made remained unverified and therefore, relying upon decision of Kachwala Gems vs. Jt. CIT [2006 (12) TMI 83 - SUPREME COURT] invoked the provisions of s. 145(3) and directed the AO to apply the GP rate of 51 per cent as against gross profit declared by the assessee at 49.07 per cent, thus sustaining the trading addition.
HELD THAT:- We concur with the views of CIT(A) as regards the deletion of addition u/ss. 69 and 69C which appears to be reasoned one. As regards the application of s. 145(3), there is no dispute that the assessee has submitted the documents to prove the purchases but the same could not be verified in spite of the opportunity given to the assessee. None of the purchases in dispute was verified, though the sales have been made and therefore, definitely purchases have been made by the assessee. However, there is every possibility that purchases have been made from some other parties and there is every possibility of leakage of revenue. Therefore, we find no infirmity in the order of CIT(A) who has rightly invoked the provisions of s. 145(3).
Estimation of income, ld AR has submitted that the assessee has declared GP rate of 48.2 per cent in the following year and CIT(A) has observed that the GP rate is abnormally higher than the general trend -
In such circumstances and facts of the case and to cover up the leakage of revenue, an addition will meet both the ends of justice. Therefore, the AO is directed to act accordingly. Thus ground Nos. 2.1 and 2.2 of the assessee are partly allowed and ground Nos. 1 and 2 of the Revenue are dismissed.
Addition on account of unexplained investment in shares - shares representing off market transactions have been credited in demat account - HELD THAT:- There is no dispute that the assessee has made payment to the broker through account payee cheque. The copies of the bills of the broker are on record. The reason for delay in demat account and other allegations have been explained by the assessee hereinbefore and also before the authorities below. Therefore, the AO is not justified in treating the investment in shares as unexplained and no addition on this account can be made.
The addition so made is directed to be deleted. Thus ground No. 3 of the assessee is allowed.
Addition on account of claim on capital gain on shares - bogus capital gain - assessee has shown long-term capital gain on the sale of shares of one company - AO, treated it as unexplained income under the head income from other sources - CIT(A) confirmed the action of the AO.
HELD THAT:- Assessee has received the payment through account payee cheque and the assessee has submitted the copies of the sale bills which are on record. Confirmation of broker, assessee's bank account, party's ledger account, party's bank account, copy of demat application and allotment of demat account were submitted before CIT(A) who has sent the same for verification to the AO. The assessee has also submitted that the assessee has applied for opening the demat account which was wrongly filed in the non-corporate status and it was later on rectified. All the allegations made have been explained.
In such circumstances and facts of the case, we find no reason with the AO to make any addition on this account and he is directed to treat the same as long-term capital gain and allow the claim of the assessee . Thus ground No. 4 of the assessee is allowed.
Addition u/s. 69C on account of unexplained expenditure - CIT(A) deleted the addition u/s. 69C and proviso to s. 69C but invoked the provisions of s. 145(3) and estimated the income by directing the AO to apply the GP rate of 30 per cent on declared sales and sustained the addition - he confirmed the action of the AO in not allowing the deduction u/s. 80HHC on such addition.
HELD THAT:- We concur with the views of CIT(A) as regards the deletion of addition u/s. 69C and proviso to s. 69C since there is no doubt on the sales made by the assessee and definitely purchases have been made and therefore, the purchases cannot be said to be unexplained but at the same time, the assessee has made the purchases may be from some other parties. Therefore, the quantum of purchases declared remained unverified as discussed in the order of the authorities below. Therefore, we find no infirmity in the order of CIT(A) who has rightly invoked the provisions of s. 145(3).
Estimation of income, ld CIT(A) has observed that GP rate of 30 per cent is reasonable whereas the assessee has declared GP rate of 48.72 per cent and no malice on declaring of higher GP rate is proved and no material is there on record in this regard. Therefore, in such circumstances and facts of the case, though the application of s. 145(3) is upheld yet no addition is called for.
Therefore, the AO is directed to delete the addition sustained by CIT(A) and allow the claim u/s. 80HHC as claimed by the assessee. Thus ground Nos. 1 and 2 of the Revenue are dismissed and ground Nos. 2.1, 2.2 and 3 of the cross-objection of the assessee are partly allowed.
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2009 (5) TMI 927 - ITAT AMRITSAR
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... ... ..... hough the onus lies upon the assessee to establish that neither it has concealed the particulars of income nor furnished inaccurate particulars of income thereof ?" The issue in the present appeal before us is similar to that answered by the jurisdictional High Court in the case of CIT vs. Shere Punjab Agricultural Works in ITA No. 210 of 2007, dt. 18th May, 2007 (supra), is squarely applicable to the present issue. 22.9 We are of the opinion that the penalty order is invalid since the AO has not made specific charge whether the assessee has furnished, inaccurate particulars of income or concealed particulars of income. In view of the above judgment, we are of the opinion that penalty order is not a valid order in the eyes of law and the same is hereby cancelled. 23. Since we have cancelled the penalty order, we refrain from going into other grounds which were argued by the assessee's counsel at length. 24. In the result, the appeal filed by the assessee is allowed.
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2009 (5) TMI 926 - DELHI HIGH COURT
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... ... ..... ance with law. I am reiterating the legal proposition as discussed by me earlier, that the fraud and special equities are interdependent of each other and once I have arrived at the finding that there is no element of fraud in the present case, then there is no special equities involved in the matter. The Plaintiff has failed to make out a prima facie case for injunction. Conclusion 77. In view of the above, the ex parte ad interim order dated 6 th April, 2009 is hereby vacated. The application of the Plaintiff under Order 39 Rules 1 & 2 being I.A.No. 4615/09 is dismissed and I.A. No.5316/09 under Order 39 Rule 4 CPC filed by the defendant No.3 is allowed. CS(OS) No.637/09 78. The written statement in this matter is yet to be filed by the defendants. The same be filed in accordance with law. List the matter before the Joint Registrar on 27th May, 2009 for further proceedings. 79. A copy of this order be given dasti to the parties under the signatures of the Court Master.
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2009 (5) TMI 925 - ITAT MUMBAI
Treatment to sale of shares - Capital gain or business income - Principles of Res Judicata - frequency of transaction - Whether the activity of the assessee constitute the activity as a business or as an investor? - Assessee is indeed in dealings in investment in shares in past for many years. The main thrust of the argument of the learned counsel is that no borrowed funds are used for purchasing the shares which were held as an investment.
HELD THAT:- On the perusal of the balance sheet filed by the assessee, we find that the assessee has shown the investment in shares under the head 'Investment' and not as 'stock-in-trade'. It is true that the principles of res judicata do not apply to income-tax proceedings as each and every assessment year is treated as a separate one. As in strict sense, what is decided in one year may not apply in the following year, but, where a fundamental aspect for permeating through the different assessment years has been found as a matter of fact one way or the other, and parties have allowed such position to be sustained then as held by the Hon'ble Supreme Court in the case of Radhasoami Satsang v. CIT[1991 (11) TMI 2 - SUPREME COURT], the position should not be allowed to change in the subsequent year merely because on the same set of facts, different view is possible. Another aspect to be considered here is that the assessee has not borrowed any money for making the investment in the shares. Moreover, the assessee is consistently holding shares as an investment which is always accepted by the AO in the past. In our opinion, there is no justification for treating the activity of the assessee of purchase and sale of the shares as a 'business' merely on reason of the volume of the transactions.
As per well settled principles of law, the frequency of the transactions cannot be per se decisive - We answer this issue in favour of the assessee and direct the AO to treat the profit and gain on the sale of the shares as a capital gain and not as a business income.
As both the authorities below have only considered whether the profit declared on the sale of the shares is to be assessed as a business income, both the authorities have not considered the another plea of the assessee as well as computation of the short-term capital gain and long-term capital gain declared by the assessee.
We, therefore, consider it fit to restore this issue for the limited purpose of verifying the quantum of short-term capital gain as well as long-term capital gain as declared by the assessee to the file of the AO whether the same has been correctly computed. At the same time, the AO is also directed to consider the claim of the assessee regarding concessional rate of tax u/s. 111A in respect of short-term capital gain as well as u/s. 112 in respect of long-term capital gain and accordingly, work out tax liability of the assessee.
Assessee's appeal is allowed.
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2009 (5) TMI 924 - ITAT DELHI
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... ... ..... use (B) of Explanation-1 enjoins upon the assessee not only to offer an explanation, but also to substantiate it. The case of the ld. counsel is that the evidence filed before the AO substantiates its explanation. However, we are of the view that the evidence on record cannot be believed even in a prima facie manner. Such an explanation cannot be taken to substantiate the case of the assessee. Further, misrepresentation of facts in the return of income, showing certain receipts as gifts, does not amount to disclosing truly and fully all material facts relating to assessment. In this view of the matter, it is held that the assessee has failed to substantiate the explanation tendered by it before the AO. Accordingly, it is also held that the learned CIT(Appeals) erred in deleting the penalty. Thus, the order of the learned CIT(Appeals) is set aside and that of the AO is restored. 6. In the result, the appeal is allowed. The order was pronounced in the open court on 29.05.2009.
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2009 (5) TMI 923 - ITAT PUNE
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... ... ..... no application of mind. It is well settled in law that when an Assessing Officer takes a view of the matter on merits, his order cannot be subject to review merely because other view is possible, as was held by the Hon'ble Supreme Court in the case of CIT vs. Malabar Industrial Co. Ltd, (243 ITR 83). In view of these discussions, and peculiar facts of this case, we hold that there is no material to conclude that the Assessing Officer did not apply his mind to assessee's, claim of depreciation on goodwill. Accordingly, the very foundation of learned Commissioner's assumption of jurisdiction is not good in law. 10. For the reasons set out above, we vacate the impugned order for want of validity of jurisdiction. As we do no, however, we refrain from making any observation on merits of assessee's claim. For this year, that aspect of the matter is wholly academic and infructuous. 11. In the result appeal is allowed. Pronounced in the open court today on 29.5.2009.
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2009 (5) TMI 922 - SUPREME COURT
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... ... ..... It has been noticed that for the assessment year 1995-96 under the old agreement, the assessee would have been required to pay ₹ 45.56 lakhs towards technical services charges to Mcdowell and during the assessment year 1996-97 it would have been required to pay ₹ 107.323 lakhs as per the old agreement whereas the assessee has during these two years paid ₹ 30 lakhs for each year. The Tribunal and the High Court recorded a finding that the new agreement in April, 1992 was not a subterfuge or clandestine device to reduce the tax liability but was an expenditure incurred on business expediency and the decision of the parties to enter into an agreement was based on commercial consideration. The finding is essentially a finding of fact based on cogent assessment of the factual scenario. We find nothing infirm in the decision of the Tribunal and the High Court to warrant interference. The challenge of the revenue on that ground fails. 5. The appeal is disposed of.
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2009 (5) TMI 921 - SUPREME COURT
Whether a pure civil dispute can be a subject matter of a criminal proceeding under Sections 420, 467, 468 and 469 of the Indian Penal Code?
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