|
Advanced Search Options
Case Laws
Showing 161 to 180 of 576 Records
-
2005 (10) TMI 452 - CESTAT, KOLKATA
Confiscation - Excess stock ... ... ... ... ..... ) has further held that merely because excess stock was detected, no interference can be drawn that the appellant s intention was to clandestinely remove the said goods. In view of this he has held that the confiscation of the impugned goods is legally unsustainable. As regards the goods not being properly accounted for, he has reduced the penalty to Rs. 500.00. I find no infirmity in the order passed by the Commissioner (Appeal). The Revenue has not given any reasons why the Commissioner (Appeal) order is not correct in law. In view of this, I dismiss the appeal filed by the Revenue. (Pronounced in the open court.)
-
2005 (10) TMI 451 - CESTAT, MUMBAI
Demand - Limitation ... ... ... ... ..... x Court has upheld that when there was bona fide doubt as to whether or not certain activity amounted to manufacture, the proviso clause invoked when there is no evidence or proof that licence was not taken out and or duty not paid on account of any fraud, collision, wilful misstatement or suppression of facts. Following this view of the law and the facts in this case, also the registration had been surrender and new registration had not been obtained, nor declaration filed by the appellants, a bona fide was entertained therefore, the demand issued and confirmed in this case is barred by limitation and the duty demands therefore cannot be upheld. (d) When the duty demands are not being upheld under the proviso to Section 11A(1), there cannot be a penalty which can be upheld under Section 11AC. Consequently, the demands of interest under Section 11AB also will not survive. 3. emsp In view of the findings, the appeal is allowed on the ground of limitation. (Pronounced in Court)
-
2005 (10) TMI 450 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Appeal to Appellate Tribunal ... ... ... ... ..... the order No. S/287/to/289/WZB/2005/CIII/dated 18-3-2005 was passed. The production of these orders by the Ld. Advocate for the appellants as well as the submissions made by the assessee of deposits made upto date and the assessee was finding it difficult to meet the full deposit order as made due to loss of business, we find that a case has been made out for ordering the modification of the earlier order. Considering that out of the total amount of Rs. 8,35,000/-, Rs. 2,35,000/- stand deposited, we would order the waiver of further pre-deposit requirement and would order the listing of this appeal for regular hearing. Modification application allowed accordingly. (Pronounced in Court)
-
2005 (10) TMI 449 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... on these applicants and stay recovery thereof pending the appeals. 2. emsp In the case of Kemtee India Photographic Co. Pvt. Ltd. the demand confirmed is approximately Rs. 1.54 lakhs and we see prima facie force in the submission of the applicants that the extended period cannot be invoked against them for the reason that if at all there is any suppression, it is on the part of the original licence holder, the transferor from whom they purchased the licence, and there is no suppression on the part of the applicant who is a transferee. We, therefore, waive pre-deposit of duty and penalty imposed upon this applicants and stay recovery thereof pending its appeal.
-
2005 (10) TMI 448 - CESTAT, KOLKATA
Custom House Agent’s licence ... ... ... ... ..... the order indicates an application of mind by the Collector to the aspect whether immediate action was necessary pursuant to contravention by clearing agent. Similar view has been expressed by the Northern Bench, New Delhi in the case of Kothari and Sons v. Commr. of Customs, Jaipur 2000 (122) E.L.T. 828 (Tribunal) wherein it has been held that the order of suspension of Customs House Agent License must indicate that the Commissioner has formed an opinion that immediate action was necessary to suspend the CHA licence pending enquiry. In the present case, the impugned order neither discloses the necessity of immediate action nor does it mention the matter in respect of which an enquiry was pending or contemplated and in the absence of such findings, the order passed by the Commissioner is bad in law and deserves to be quashed. In view of the above discussions, we allow the appeal and quash the order of suspension of the appellants with consequential benefit of the appellants.
-
2005 (10) TMI 447 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... xamining the definition of lsquo first stage dealer rsquo and finding that lsquo first stage dealer rsquo would be dealer who procures goods directly from a manufacturer from his factory or from the depot of the said manufacturer considered M/s. Parekh as the first stage dealer. M/s. Venus Petrochemicals would therefore become the second stage dealer and the credit as availed by the Respondents on this second stage dealers documents was permissible. 3. emsp The ground taken that Reliance Industries Ltd. a manufacturer had taken a registration for the depot, therefore the depot should be considered as first stage dealer, consequently documents issued by M/s. Venus Petrochemicals are not eligible cannot be appreciated. The order of Ld. CCE(A) who has applied the definition of first stage dealer to hold M/s. Parekh as such, as per law enacted, cannot be faulted with. 4. emsp In this view of the matter we find no merits in this appeal, the same is rejected. (Pronounced in Court.)
-
2005 (10) TMI 446 - CESTAT, MUMBAI
Cenvat/Modvat - Reversal of credit ... ... ... ... ..... sion - CCE, Meerut-I v. Shakumbari Sugar and Allied Industries Ltd. - 2004 (176) E.L.T. 819 (Tri. - Del.) and Board rsquo s Circular No. 267/136/97-CX.8, dated 15-1-1998 in his support. The said circular and the Tribunal rsquo s decision do not advance the case of the respondents. As rightly contended by the learned DR, the entire quantum of inputs taken for production of exempted goods is to be computed and the same must include the processing loss for calculating the amount of credit to be reversed. The contrary order passed by the lower appellate authority is, therefore, incorrect and the same is set aside in so far as it relates to the period prior to 1-9-1996. The matter, however, is remanded to the original authority for re-quantification of the duty amount and for passing a fresh order after giving a reasonable opportunity of hearing to the respondents. The issues relating to determination of penalty and application of time bar are also kept open. (Pronounced in Court)
-
2005 (10) TMI 445 - CESTAT, MUMBAI
Appeal - Limitation ... ... ... ... ..... e to serious injury. The applicant also submits that his advocate had informed him that he had filed an appeal before the Tribunal against order dated 31-3-2004 of the Commissioner and it was only in March, 2005. That he appeared before the Tribunal to find out the status of the appeal stated to have been filed before the Tribunal and it was only thereafter he came to know that no appeal and stay application have been filed by his previous Advocate, Shri Dilipkumar Joshi. 2. emsp On hearing both sides and noting the decision of the Apex Court in the case of Radha Krishna Rai v. Allahabad Bank and Others - (2000) 9 SCC 733 and Devendra Swamy v. Karnataka State Road Transport Corporation - AIR 2002 Supreme Court 2545, holding that the default by the lawyer was sufficient cause to condone the delay in filing the appeal before the Supreme Court, we condone the delay due to peculiar circumstances of the case. 3. emsp The Stay application is listed for hearing on 6th October, 2005.
-
2005 (10) TMI 444 - CESTAT, KOLKATA
Appeals to Commissioner (Appeals) - Authorized person ... ... ... ... ..... roduced any proof showing as to whether any powers have been delegated to the Manager by the D.G.M.(Commercial) or by the Manager to the Customs House Agent. He further submits that since the CHA is not competent to sign the Memorandum of Appeal on behalf of the applicant/appellant, their appeal cannot be entertained by the Tribunal. Therefore, he contends that the Order passed by the Commissioner (Appeals), is correct. 3. emsp Heard both sides. We find that the CMD of the applicant/appellant company has delegated the powers to the Deputy General Manager (Commercial) as referred to above. There is no proof that any powers have been delegated further by him. Otherwise also, it is a settled position of law that the powers once delegated cannot further be delegated. In view of this, we find that the Order passed by the Commissioner (Appeals) is correct in law. We dismiss the appeal on this count only. Stay Petition also gets disposed of accordingly. Pronounced in the open court.
-
2005 (10) TMI 443 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... he goods. Section 114 of the Act can be invoked to impose a penalty on a person only when such person, by his omission or commission, is found to have rendered the goods liable to confiscation under Section 113 of the Act or to have abetted similar commission or omission of another person. In the instant case, the goods were not liable to confiscation under Section 113 of the Act on account of the fact that they had already been exported. Prima facie, the applicants have made out a strong case against the above penalty. Accordingly, there will be waiver, of predeposit and stay of recovery. (Dictated and pronounced in open Court)
-
2005 (10) TMI 442 - CESTAT, MUMBAI
Demand - Limitation - Change of view of Board ... ... ... ... ..... aration on part of the Respondents on the grounds taken would be enough reasons to confirm the findings of bar of limitation of arrived by the ld. CCE (A). It is found that the demands to be effected in this case are admittedly on change of view of the Board, invocation of the larger period of proviso clause of Section 11A(1) is therefore not called for. The demand cannot be effected for the period 11-7-95 to 27-8-96 by a notice dated 29-5-98. We also find that the Tribunal in case of manufacturers of same product has held the demands to be barred by limitation which indicates that the present cases are not an isolated instance, but a case of all Industry feature. Reliance by the ld. Advocate on the decision in case decided vide Order No. C1/2824/2826/WZB/2003 dated 10-11-2003 of this Tribunal is well founded and is relied by us. Since no demands could be upheld. The Revenue rsquo s appeals consequently are rejected upholding the orders of CCE (Appeals). (Pronounced in Court)
-
2005 (10) TMI 441 - ITAT CHANDIGARH
Charitable or religious trust ... ... ... ... ..... y the single Judge was appropriate. In the present case also, the assessee even after the expiry of more than a decade has not been able to spend even a penny for furtherance of the objects of the trust. The above decision of the Hon rsquo ble Kerala High Court thus supports the view taken by the CIT that assessee is not entitled to registration under section 12A of the Income-tax Act, 1961. 14. Taking the totality of facts and circumstances of this case into consideration, we are of the considered view that the CIT was justified in denying the benefit of registration to the assessee-trust as the same has not been established to have been genuinely created for meeting the objects of a charitable institution. Since the assessee has not been found entitled to registration under section 12A as public charitable trust, the denial of exemption under section 80G is consequential. We accordingly find no merit in the appeal of the assessee. 15. In the result, the appeal is dismissed.
-
2005 (10) TMI 440 - ITAT BANGALORE
Deductions - Exporters ... ... ... ... ..... ss specifically provided for. Since we have held that profits of the export turnover of EHTP unit does not form part of gross total income, such turnover cannot be included while computing export turnover for the purpose of computing deduction under section 80HHC also. 3.3 Hon rsquo ble Supreme Court in the case of IPCA Laboratory Ltd. v. Dy. CIT 2004 266 ITR 521 held that section 80AB governs section 80HHC also. 3.4 The decision of ITAT, Delhi bench in Jindal Exports (P.) Ltd. v. Asstt. CIT 1989 31 ITD 217 held that if the assessee is eligible for deduction under section 10A as well as section 80HHC, it should be granted. We agree with the same view. However, since the profit of 10A unit and deduction under section 80HHC is in the sections. Section 80AB clearly provides that deduction under the heading Deduction in respect of certain income in Chapter VI-A shall be such sum, which is included in the gross total income of the assessee . In the result, the appeal is dismissed.
-
2005 (10) TMI 439 - ITAT CHANDIGARH
Penalty - For concealment of income ... ... ... ... ..... ept the nil assessment. The Assessing Officer did not point out any defect in the accounts, which could have forced the assessee to make surrender. Considering the facts and circumstances of this case, we are convinced that the surrender of Rs. 10,49,036 made by the assessee was purely on consideration of buying peace and that the explanation of the assessee is bona fide. As pointed out earlier, the assessee did not lose any monetary benefit by the surrender and the revenue also did not derive any monetary benefit even in subsequent year by the surrender of the amount. When there no consequences to be borne by the assessee by the surrender of any amount it is, in the absence of any material to the contrary, be deemed that the explanation of the assessee was bona fide. We hold accordingly. We are, therefore, satisfied that penalty under section 271(1)(c) in this case is not justified and the same is accordingly deleted. 10. In the result, the appeal of the assessee is allowed.
-
2005 (10) TMI 438 - ITAT BANGALORE
Deduction of tax at source ... ... ... ... ..... amount of tax is fully paid by him, the Assessing Officer has no jurisdiction under section 201 to demand further tax from the payer in respect of the tax short deducted relating to such payee. CIT v. Manager, Madhya Pradesh State Co-operative Development Bank Ltd. 1982 137 ITR 230 (MP) CIT v. Divisional Manager, New India Assurance Co. Ltd. 1983 140 ITR 818 (MP) CIT v. Shri Synthetics Ltd. 1985 151 ITR 634 (MP) Gwalior Rayon Silk Co. Ltd. v. CIT 1983 140 ITR 832 (MP) CIT v. MP Agro Morarji Fertilizers Ltd. 1989 176 ITR 282 (MP) We accordingly hold that since the ultimate payee is individual or HUF, who are co-owners of the property and whose shares are definite and ascertainable, the appropriate rate of deduction of tax at source is 15 per cent and not 20 per cent under section 194-I. Thus, the tenants are not to be treated as assessee-in-default under section 201(1). Consequently, no interest is to be levied under section 201(1A). In the result, all the appeals are allowed.
-
2005 (10) TMI 437 - ITAT AMRITSAR
Commissioner (Appeals) ... ... ... ... ..... o s order dated 29th May, 2003 (supra), where the order of the CIT(A) was upheld. Therefore, there is no question of making any addition of Rs. 1,51,000 at the time of set aside appeal proceedings because this issue was not restored to his file. Therefore, this ground of appeal is disposed of in these terms. 14. As regards the trading addition of Rs. 1,25,000 restored to the file of the CIT(A) by the Tribunal, the learned counsel has not advanced any specific arguments on the same. In fact, there is no specific ground taken before us challenging the addition of Rs. 1,25,000 restored by the Tribunal. Therefore, we refrain from making any comments on the same as no grievance for the same has been projected before us. This means that the addition of Rs. 1,25,000 made at the time of completing the original assessment for which relief was allowed and Tribunal restored the same to CIT(A) would stand. 15. In the result, the appeal filed by the assessee is disposed of in these terms.
-
2005 (10) TMI 436 - ITAT MUMBAI
Income, Actual cost, Foreign currency, rate of exchange, change in ... ... ... ... ..... revenue nature and the same have been either debited or credited to the profit and loss account. In our view, the accounting entries passed in the books of account of the assessee, though relevant, are not determinative of the correct nature of the transaction. The nature of the transaction has to be decided in consonance with the provisions of law and the legal position as emerging from the judicial pronouncements. 23. In view of the discussion given above, we hold that any loss or gain arising to the assessee as a result of cancellation of forward cover contracts is required to be added or reduced from the actual cost of the project for the purposes of allowing deprecation. The Assessing Officer is, therefore, directed to re-compute the actual cost of the project accordingly and the written down value for the purpose of allowing depreciation may be revised for all the relevant subsequent assessment years. 24. In the result, the assessee rsquo s appeal stands partly allowed.
-
2005 (10) TMI 435 - ITAT MUMBAI
Business loss/deductions, Losses - In speculation business ... ... ... ... ..... . which was paid by Sh. Lalwani as per agreement between the assessee and Sh. Lalwani. This amount of Rs. 43,13,000 was adjusted against the payment of Rs. 68 lakhs made by the assessee through cheque. Therefore, it cannot be said or held that there was no agreement between the assessee and Sh. Lalwani. It is also a fact that the denial letter received from Sh. Lalwani was not provided to the assessee and, therefore, no proper opportunity was allowed to the assessee for cross-examination. The ratio of the decision of the Hon rsquo ble Apex Court in the case of Kishinchand Chellaram v. CIT 1980 125 ITR 713 is clearly applicable in this regard. Therefore, in view of these facts and circumstances of the case, we hold that the assessee is entitled to claim of compensation of Rs. 1,10,87,000 as business loss during the year under consideration. Accordingly, we direct the Assessing Officer to allow the claim of the assessee. 15. In the result, the appeal of the assessee is allowed.
-
2005 (10) TMI 434 - ITAT MUMBAI
Business expenditure ... ... ... ... ..... total income determined by the Assessing Officer is, therefore, reduced by Rs. 84,00,000. 16. As stated above, the Learned CIT (Appeals) has discussed the decisions relied upon by the Assessing Officer as well as the Learned Counsel for the assessee then only came to the conclusion that the expenditure incurred by the assessee are revenue in nature. Some times it is seen that there are decisions favouring both, i.e., assessee and department on the issue, however, where two possible views are available, then the view favouring assessee should be adopted as held by the Hon rsquo ble Supreme Court in the case of CIT v. Vegetable Products Ltd. 1973 88 ITR 1 92. However, in the instant case, we have seen the facts and found that there are nearer to the cases, which are in favour of assessee. Therefore, in view of these facts and circumstances and in view of the detailed reasoning given by the Learned CIT (Appeals), we confirm his order. 17. In the result, the appeal is dismissed.
-
2005 (10) TMI 433 - ITAT DELHI
TDS u/s 192 or 194J - liability to deduct tax - Some fixed share of fees paid to the consultant doctors rendering their services in its hospital - ‘fees for professional services’ Or ‘Income from salary’ - relationship between the assessee and the consultant doctors - HELD THAT:- A careful perusal of the appointment letters shows that out of the eighteen consultant doctors in question, eleven doctors were being paid a fixed monthly amount by the assessee whereas the remaining seven doctors were being paid some fixed share of fees received from private patients treated by them in addition to the fixed monthly payment.
Keeping in view the position arising from the terms of appointment of consultant doctors as well as the Service Rules governing the employees of the assessee’s hospital, it can reasonably be concluded that all the consultant doctors were employees of the assessee and even if there was a distinction between the terms of employment of the permanent employees and the terms of employment of consultant doctors, the fact remains to be seen is that they were the employees of the assessee falling in the category of fixed period/contract employee and/or part-time employee. It, therefore, follows that the relationship between the assessee and the consultant doctors was purely that of employer and employee and remuneration paid to them in terms of the said relationship was salary which attracted the provisions of section 192.
As such, we are of the considered opinion that there was an employer-employee relationship between the assessee and the consultant doctors and cones- quently, remuneration paid to them was chargeable to tax under the head ‘Salaries’. The said payments thus were subject to deduction of tax as per the provisions of section 192 and not as per the provisions of section 194J. In that view of the matter, we hold that the Assessing Officer was fully justified in treating the assessee as in default for short deduction of tax at source from the payments made to the consultant doctors and there was no infirmity in the impugned order of the learned CIT(A) upholding the action of the Assessing Officer on this count. The same is, therefore, upheld dismissing the appeal filed by the assessee.
In the result, the appeal of the assessee is dismissed.
............
|
