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Case Laws
Showing 101 to 120 of 604 Records
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2005 (5) TMI 593 - ITAT CHANDIGARH
Penalty - For concealment of income ... ... ... ... ..... n only after, the notices were issued twice and the assessee became aware that the deduction under section 80-I cannot be allowed. The provisions contained in the Income-tax Act contemplate the concealment in the original return filed under section 139 alone and the penalty is to be imposed with reference to that concealment. The subsequent returns (revised) are filed only to enable ITO to determine the real income of the assessee and the amount concealed. However, the filing of revised return will not create a fresh cause of action or fresh concealment. Similar views were expressed by the Hon rsquo ble High Court of Madras in the case of Henry Isidore (supra), wherein it was held that revised return will not create fresh concealment and penalty must be imposed with reference to concealment in original return. In view of these facts, we have not found mistake in the order of the learned CIT(A) which deserves to be upheld. 7. In the result, appeal of the assessee is dismissed.
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2005 (5) TMI 592 - CESTAT, MUMBAI
Penalty - Delay in payment of duty under Compounded Levy Scheme ... ... ... ... ..... in the present case, there is a long delay in payment of the duty amount and that the same has been paid after five years in one case and after four years in the second case. The interest amount has also not been paid till date. As such, this appears to be a fit case for imposition of penalty equal to the duty amount as prescribed under Rule 96ZP(3). I am also of the view that the Tribunal rsquo s order in the case of Mitra Steel cited above holding that no penalty is imposable in compounded levy cases cannot be followed in the light of the cited decision of the Hon rsquo ble High Court of Allahabad in the case of Pee Aar Steels (cited supra) holding that such penalty is imposable and that the Tribunal is not competent to reduce the penalty. Accordingly, I set aside the impugned order and restore the Order-in-Original in so far as it relates to the present respondents. 5. emsp The department rsquo s appeal is allowed in the above terms. (Dictated and pronounced in open Court)
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2005 (5) TMI 591 - CESTAT, MUMBAI
Concrete Weigh Batching Plant - Exemption under Notification No. 23/98-Cus. ... ... ... ... ..... ii) of the Notification. Hence this appeal by the importer. 2. emsp We have heard both sides. We find that PWD has certified on 2-11-88 that they have awarded the contract for the construction of Mumbai-Pune Express Highway through MSRDC to the appellant herein. Therefore, Condition No. 74 of the Notification stands satisfied in favour of the appellant and the benefit of exemption under the said Notification is to be held to be available to appellant. Accordingly, we set aside the impugned order of the Commissioner, which is holding that the exemption is not available to the appellant, and allow the appeal.
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2005 (5) TMI 590 - CESTAT, MUMBAI
Cenvat/Modvat - Reversal of credit ... ... ... ... ..... availed on tubes is not available for damage tubes. (iv) No further material of damage is required and it is established. (c) After hearing both sides and considering the material it is to be held that for damage and waste of inputs (Tubes in this case) which is admittedly arising during the process of manufacture of the declared final product will not call for reversal of duty credit availed on Aluminium tubes the declared inputs. The duty demands if any were required to be effected on the scrap and waste of Aluminium without the reckoning the weight of the material filed in such damaged tubes as demand has to be on waste/scrap rate and under appropriate head that has not been done by the original authority, the demands interest and penalty consequences therefore cannot be upheld as arrived. (d) The ground taken by Revenue does not in due to order recovery of credit availed on Tubes. 3. emsp Revenues appeal is consequently rejected. Cross-objections also stands disposed off.
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2005 (5) TMI 589 - CESTAT, MUMBAI
Printer - Sienna FP 5000, 220V digital printer (computerised) ... ... ... ... ..... hich decision is followed by Commissioner (Appeal). (c) The classification opinion for the very same/model to be classified under 8471 by United States of America Department of Commerce Bureau of Export, which is s relied upon by the Ld. CC (Appeal), cannot be lightly bushed aside as in the present appeal filed by Revenue has no grounds why such an opinion on classification based on HSN, the internationally adopted Classification System should be departed from. (d) Examining the chapter notes 5 to chapter 84 of the Customs Tariff especially the admitted fact by both sides that sans use of a Computer, the entity cannot perform any independent function the classification under 8471 is called for and approved. 2. emsp We find the CC (Appeal) rsquo s order to be logical and find no reason to depart from the same on the grounds made out herein. 3. emsp Consequently the Revenue appeal of classification under Chapter 9010 cannot be upheld. The same is rejected. (Pronounced in Court)
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2005 (5) TMI 588 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Demand - Limitation - Extended period - Settlement Commission ... ... ... ... ..... the applicant has already paid Rs. 15,00,000/-, the applicant is entitled to refund of duty after adjustment of the abovesaid duty liability. No further duty liability subsists (ii) Cash of Rs. 2,44,600/- seized in ordered to be released (iii) The applicant is granted immunities from payment of interest, fine, penalty and prosecution under the Central Excise Act, 1944. (iv) The co-applicants, namely, S/Sh. B.L. Bengani, Managing Director, M.L. Pramod Kumar, Director S.K. Bothra, Director of the applicant company are also granted immunities from penalty and prosecution under the provisions of the Central Excise Act, 1944. 14. emsp The above immunities are granted in terms of Section 32K(1) of the Central Excise Act, 1944. The attention of the applicants is also drawn to sub-sections (2) and (3) of Section 32K ibid, in this regard. The above settlement shall be void if it is subsequently found by the Commission that it has been obtained by fraud or mis-representation of facts.
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2005 (5) TMI 587 - CESTAT, MUMBAI
Penalty on Managing Director ... ... ... ... ..... nce the penalty was not imposable. The settlement commission has also observed that the matter was within the knowledge of the department and there was no intention to evade the duty. It was further submitted that in the present case the main accused was company and it is settled law that when the main accused has been absolved of penal consequences there should be no question of imposition of penalty on co-accused under Rule 209A as has been held by the tribunal in the case of Shitala Prasad Sharma v. C.C. Ex., 2005 (183) E.L.T. 21 (Tri.). 3. emsp I have considered the submission. I find that the facts of the case are fully covered by the Tribunal rsquo s decision in the case of Shitala Prasad Sharma cited supra and since in this case also the main accused i.e. company has been absolved of penal consequence no penalty will be imposable on the appellant who is co-accused. 4. emsp I accordingly set aside the order of the Commissioner and allow the appeal. (Pronounced in Court)
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2005 (5) TMI 586 - CESTAT, BANGALORE
Paper - Newsprint in reels ... ... ... ... ..... duty Nil. Unfortunately, the Adjudicating Authority did not have the benefit of this Notification since it was issued later. That apart, a perusal of the IS 4661 1999 and ISO 4046 1978 reveals that lsquo roll rsquo and lsquo reel rsquo are synonymously used in some countries. In our country also, such a fine distinction was not made. lsquo Newsprint in reels rsquo was classified under CSH 4801.00 only. We agree with the appellants, contention that the Commissioner had relied on out-dated ISI norms of 1986, which stand replaced by the 1999 standards. We also take note of the fact that in all the other Collectorates, the impugned goods have been classified only under 4801.00. In these circumstances, we do not find any merit in the impugned order. We hold that lsquo Newsprint in reel rsquo form, as cleared by the appellants, is classifiable under CSH 4801.00. As a result, we allow the appeal. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2005 (5) TMI 585 - CESTAT, MUMBAI
Demand - Limitation - Cenvat credit ... ... ... ... ..... aken on the basis of Annexure-II challan which were not specified document for availment of the credit and therefore the respondent have suppressed the facts and extended period was invocable. 3. emsp I have considered the submission. I find that as observed by the Commissioner (Appeals) the appellant were submitting the Xerox copy of RG-23A Pt.-II showing the facts of taking the credit on Annexure-II challan. Even otherwise when credit was being taken in respect of the amount which was debited at the time of clearance of input to job work, there cannot be any intention to evade the duty. The department contentions that instead of taking suo motu credit the appellant should have file a refund claim cannot save the demand from being time-barred, when there is no intention to evade duty or suppress or misdeclare facts. 4. emsp In view of above, I find no infirmity in the order of the Commissioner (Appeals) and accordingly reject the Revenue rsquo s appeal. (Pronounced in Court)
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2005 (5) TMI 584 - CESTAT, MUMBAI
Demand - Cenvat/Modvat - Inputs ... ... ... ... ..... inputs. The credit earned on which inputs has been utilised for discharge of duty for which final product cannot be segregated. There is no one to one correlation between the Modvat credit availed in respect of a particular inputs and duty payment on a particular, final product. Tribunal in the case of Novartis India Ltd. reported in 2002 (104) ECR 969 (T) has held that credit earned on inputs used in excisable goods of one chapter can be used for discharging duty on final product of another chapter. The law on the point is settled and does not require the support of more decisions. Even if the appellant had paid duty on the said loaders out of PLA, they could have utilised the disputed credit for payment of duty on the other type of loaders in which electric motor and cables were used, it is informed that the appellants were paying duty out of PLA also. As such, I do not find any justification in the impugned orders and set aside the same. (Pronounced in Court on 13-5-2005)
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2005 (5) TMI 583 - CESTAT, BANGALORE
Order - Finality of ... ... ... ... ..... e duty liability was required to have been finalized in terms of Mafatlal Industries judgment rendered by the Apex Court and followed by the Tribunal in the case of Star Paper Mills Ltd., and Needle Industries (I) Ltd. (supra). The impugned orders are not legal and proper and they are set aside and the matter remanded to the original authority to finalise the assessments and not come out with a fresh finding that the assessments were not final. We direct the original authority to proceed on the basis of our finding that the assessments were not final but were provisional and that the claim of the assessee and the department should be taken up together while finalizing the assessments. The appellant shall be heard and the Principles of Natural Justice shall be observed in the de novo consideration. As the matter is old one, the de novo consideration shall be concluded within a period of four months from the date of receipt of this order. (Pronounced in open Court on 11-5-2005)
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2005 (5) TMI 582 - ITAT AHMEDABAD
Unexplained investments ... ... ... ... ..... efore the Assessing Officer as well the CIT(A). However, the assessee had explained before both the authorities below that the same related to hospital expenses of an employee of the firm - Shri Bharat Bhai, who got his leg fractured in a minor accident while going to Nadiad for business purposes. Under the peculiar facts and circumstances of the case, we do not think the assessee rsquo s explanation is unrealistic. Also, considering the nature of the expenditure which arose in the exigencies of the situation, it would not have been very practical to collect the necessary evidence. Also, we believe that the Assessing Officer, if doubtful of the assessee rsquo s explanation, should have, instead of just brushing it aside, called for some circumstantial or collateral evidence. We, therefore, uphold the assessee rsquo s claim and delete the addition of Rs. 9,500. 18. In the result, the Appeal of the Revenue as well as the Cross Objection of the assessee, are both partly allowed.
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2005 (5) TMI 581 - ITAT CHENNAI
Business expenditure, Business disallowance ... ... ... ... ..... argued by the Ld. D.R. that the expenditure incurred on garden maintenance is not related to business and therefore, not allowable. Ld. A.R. of the assessee on the other hand maintained that as has been held by the courts that assessee is required to maintain garden in view of necessity of business requirements. The garden is part of the factory building. Therefore the expenditure incurred on maintenance of garden is for the purposes of the business and therefore deductible while computing the business income. 8. We have considered the arguments made by both the parties. Except expenditure incurred on construction of the Mandapam, all other expenses are for the maintenance of a garden. The garden is part of the factory building. The assessee is also required to maintain the good surroundings. Therefore the expenditure incurred on maintenance of garden is allowable expenditure. We are in agreement with the findings of Ld. CIT(A). 9. In the result the appeal is partly allowed.
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2005 (5) TMI 580 - ITAT JAIPUR
Income from other sources ... ... ... ... ..... -lending could be inferred. Accordingly, the income which has been received by the assessee is to be treated as income from other sources and not business income. 9. In the present case nothing emerges out from the perusal record and facts that the appellant is regularly carrying on business of lending on money as a systematic activity. The appellant was investing only the surplus funds and was deriving interest thereon instead of keeping them idle. Relying upon the ratio by the Hon rsquo ble Jurisdictional High Court in the case of Rajasthan Land Development Corpn. rsquo s case (supra) and Murli Investment Co. rsquo s case (supra) income from such advancing of loans cannot be assessed as business income and should be assessed as income from other sources. Accordingly, we are satisfied that the ld. CIT(A) was justified in upholding the decision of the Assessing Officer. We, therefore, reject the ground of the assessee in this appeal. 10. In the result the appeal is dismissed.
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2005 (5) TMI 579 - ITAT MUMBAI
Deemed dividend ... ... ... ... ..... ed in the section exists. Thus, out of apparently two contradictory propositions of law as annunciated by Hon rsquo ble Supreme Court, we are bound to follow the one which is pronounced later and by a larger Bench of Hon rsquo ble Supreme Court. In view of the later decisions of Hon rsquo ble Supreme Court interest under these sections is mandatory and Assessing Officer has no authority to waive it even by implication by not mentioning the same in the assessment order or notice of demand or calculation sheet. Therefore, we are further of the view that interest being mandatory and Assessing Officer having no power to waive it overtly or by implication, the Assessing Officer can charge these interests by invoking the power under section 154 of the Act if not originally charged in the assessment order. Accordingly this ground of the assessee is rejected. 19. In the result, the appeal filed by the Revenue is partly allowed. The appeal filed by the assessee is also partly allowed.
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2005 (5) TMI 578 - ITAT DELHI
Business loss/deductions ... ... ... ... ..... below section 37(1) inserted by the Finance Act, 1998 with retrospective effect from 1-4-1962. This Explanation says that any expenditure incurred by an assessee for any purpose which is an offence or which is prohibited by law shall not be deemed to have been incurred for the purpose of business and no deduction or allowance shall be made. This point came up in connection with the fact that the building had to be demolished because of violation of the building rules. However, this Explanation is not applicable firstly because it applies only to an expenditure but not to a loss. Secondly there is no allegation that it was the assessee who committed any violation of the building rules because the building was being constructed on the plot of land belonging to his wife and if at all there is any violation of the building rules, the assessee was in no way responsible for the same. 12. For the above reasons, we allow the loss of Rs. 18,10,007 as a deduction and allow the appeal.
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2005 (5) TMI 577 - ITAT AHMEDABAD
Business expenditure, Assessment - Additions to income ... ... ... ... ..... yment of commission to the Commission Agents have been disallowed by the Assessing Officer and the same has been sustained by us. Therefore after excluding the commission, the GP would be Rs. 6,13,329 (Rs. 2,76,219 Rs. 3,37,110), which is approximately 10 per cent of the sales made by the assessee on high-seas basis. The GP disclosed by the assessee is much better than the GP accepted by the Tribunal in assessee rsquo s own case for assessment year 1992-93 and in the case of Ishwar Ashish Plastics Pvt. Ltd. 18. In view of above, even if it is held that technically proviso to section 145 is applicable due to non-availability of buyer at the address given, since the profit disclosed by the assessee is quite reasonable, no addition on this account can be sustained. We, therefore, find no merit in Ground Nos. 2 and 3 of the Revenue rsquo s appeal. The same are rejected. 19. In the result, the assessee rsquo s appeal is dismissed while the Revenue rsquo s appeal is partly allowed.
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2005 (5) TMI 576 - ITAT CHENNAI
... ...
... ... ..... squo ble Jurisdictional High Court in the above case CIT v. Madras Autorickshaw Drivers rsquo Co-operative Society Ltd. 1983 143 ITR 981 (Mad.) has been confirmed. 8. In view of the above legal position, we are of the considered opinion that the assessee is only a marketing society not engaged in credit facilities as the words providing credit facilities should be interpreted in the right of the expression business of banking as held in the case of Addl. CIT v. UP Co-operative Cane Union 1978 114 ITR 70 (All.). We are also of the opinion that the amendment brought into force in the bye law of the co-operative society has no bearing on the issue as the true character of the society remains as a marketing society only and the order of the Tribunal (supra) squarely applies to the facts of the present case. Accordingly, we reverse the order of the CIT (Appeals) on this issue and allow the ground taken by the Revenue. 9. In the result, the appeals filed by the Revenue are allowed.
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2005 (5) TMI 575 - ITAT DELHI
Block assessment in search cases ... ... ... ... ..... , the assessee in this case) cannot wash away his hands from the liabilities which have been fastened upon him. The entire section 189 is sufficient to take care of the situation. Thus, simply because the assessee continued the business of the erstwhile firm as its sole proprietor, the income of the erstwhile partnership cannot be assessed in his individual hands. 12. Finally, it is admitted that the seized papers do not make a mention about the dates of the transactions. It is on record that the partnership subsisted from April, 1982 to March, 1994. In that event, it is difficult to ascertain the exact period to which the income belongs and whether it falls within the block period 1986-87 to 1995-96 or not. 13. In the final analysis, I agree with the view taken by the learned Accountant Member deleting the additions of Rs. 25,91,105 and Rs. 10,00,000. 14. The matter will now go to the regular Bench for the final disposal of the appeal in accordance with the majority opinion.
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2005 (5) TMI 574 - CESTAT, BANGALORE
Penalty - Misdeclaration under bona fide belief - Confiscation and redemption fine - Misdeclaration
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