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Showing 41 to 60 of 604 Records
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2005 (5) TMI 656
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... ... ..... 005 N.T.N. (26) 427 Division Bench of this Court has held that Section 7-D of the Act has overriding effect over other provision of the Act and once the compounding application is accpeted under Section 7-D of the Act proceeding under Section 2 1 of the Act cannot be taken. Following the aforesaid decision of this Court order passed under Section 21 of the Act dated 30th September, 2004 is also not sustainable and liable to be quashed. The notice under Section 21 of the Act and in pursuance thereof order under Section 21 of the Act are also not sustainable on the ground that the notice under Section 21 of the Act was issued on 19th March, 2004 when the order under Section 7-D of the Act dated 28th Febraury, 2003 was in existence and no jurisdiction to make assessment could be assumed. 15. In the result, writ petition is allowed. Orders dated 29th September, 2004 passed under Section 7-D of the Act and dated 30th September, 2004 passed under Section 21 of the Act are quashed.
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2005 (5) TMI 655
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... ... ..... ulations of Central Electricity Regulatory Commission, a holder of category 'F' license is entitled to trade in over 1000 million units of power in a year. The total power intended to be traded by the Electricity Board is 1471 million units for which appellant no.1 does not possess the requisite license. Having regard to these facts, we are clearly of the opinion that no ground has been made out by the appellants, which may warrant interference by this Court with the decision taken by the West Bengal State Electricity Board in not awarding the contract to the appellant No. 1 as price offered cannot be the sole criteria in the matter of trading of power where holding of relevant licence is mandatory under the Regulations of Central Electricity Regulatory Commission. 13. The appeals lack merit and are hereby dismissed with costs, which we quantify as ₹ 25,000/-. The cost shall be paid by the appellants to the West Bengal State Electricity Board (respondent no.2).
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2005 (5) TMI 654
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... ... ..... he deduction allowable under section 80-IA. The dispute pertains to allocation of expenses debited to the Profit & Loss account on a unit-wise basis to arrive at the profit of Unit II eligible for the claim of deduction under section 80-IA. There is no dispute between the parties in principle that all relevant expenses, direct as well as indirect expenses, are to be deducted to arrive at the correct profits of Unit II for the purposes of section 80-IA. There is a factual aspect which needs to be determined by the Assessing Officer. We therefore, set aside the matter to Assessing Officer for verification of expenses which are relatable to Unit II. The Assessing Officer shall provide adequate opportunity to the appellant-company to support its claim of deduction under section 80-IA and after verification, the Assessing Officer shall allow deduction under section 80-IA in accordance with law. 10. In the result, the appeal of the assessee is allowed for statistical purposes.
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2005 (5) TMI 653
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... ... ..... ax payer is not permissible and refund should have been claimed. Thus, essentially, the respondent had paid full amount of tax. When the matter went before the Commissioner (Appeals), the Commissioner set aside the order on the ground that the demand had been made belatedly. 2. I have perused the records and heard both sides. As already noted, the Commissioner (Appeals) set aside the demand on the basis of time-bar. The records show that the respondent had been filing return for the relevant period. The return specifically mentioned the adjustment. The details of adjustment were also given in a separate annexure. Thus, full facts of the adjustment made by the assessee remained disclosed contemporaneously. Therefore, the demand, if at all, was required to be raised during the normal time. The Commissioner (Appeals) correctly reached the finding that the demand was beyond time. There is no error in the order. The appeal is rejected. (Dictated and pronounced in open Court)
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2005 (5) TMI 652
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... ... ..... umar,Adv. O R D E R We see no reason to interfere. The Special Leave Petition is dismissed.
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2005 (5) TMI 651
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... ... ..... 25.7.2003, in our opinion, would not be a bar for the Appellants to approach this Court again; particularly in view of the fact that the Division Bench itself has refused to go into the said question and asked the parties to file an application before this Court for clarification. The principle of res judicata in a situation of this nature cannot be said to have an application. In Shakuntla Devi Vs. Kamla & Ors. 2005 (4) SCALE 21 this Court has clearly laid down the law that principle of res judicata has certain exceptions, one of which would be a case where the earlier declaration obtained by the court is established to be contrary to an existing law. For the reasons aforementioned, this appeal succeeds which is allowed and the matter is remitted to the High Court for considering the Appellants' objections under Sections 30 and 33 of the 1940 Act by a bench having requisite determination there over on its own merit. The parties are directed to bear their own costs.
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2005 (5) TMI 650
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... ... ..... hich also form the basis for the criminal proceedings then the departmental adjudication will remove the very basis of the criminal proceedings and in such situation the continuance of the criminal proceedings will be a futile exercise and an abuse of the process of the court. 14. In the present case CEGAT has found that the allegations against the petitioner were not based on any fact or evidence. The department has failed to prove before the CEGAT that the petitioner was in any way knowingly concerned in fraudulent evasion of prohibitions imposed in importation of gold into India. The department having failed to prove the allegations before the CEGAT cannot be allowed to continue the criminal proceedings for although the same may not be barred by Article 20(2) of the Constitution of India, the same would be a futile exercise, waste of judicial time and abuse of the process of law. I, therefore, allow the petition and quash the criminal proceedings vis-a-vis the petitioner.
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2005 (5) TMI 649
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... ... ..... in print media, etc. their activity is covered by the definition of advertising agency under the Finance Act, 1994. 3. I have considered the submissions of both the sides. There is force in the submissions of the learned Consultant that the appellants are only acting on behalf of Times of India for selling the printed space. It is not the case of the Department that the appellants are making or preparing advertisement, they are only engaged in the service which is known as space selling. The Board, vide Circular No. 64/13/2003-ST dated 28-10-2003 clarified that an agency undertakes merely job of bringing the order for an advertisement and does not undertake any further activity, it would not fall within the definition of advertising agency and will not be subjected to service tax. In view of this Circular, the service rendered by the appellants cannot be regarded as service of advertising agency and no service tax is leviable on them. The appeal is, therefore, allowed.
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2005 (5) TMI 648
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... ... ..... India for the said purpose, “the said tax is on the service and not on the service provider”. It has further held that under section 68 of the Finance Act, 1994, as amended by the Finance Act 1997, read with Rule 2(l)(d)(ix) of the Service Tax Rules 1994. Therefore, even though under the scheme of the service tax from the scheme of service tax, the payer of service tax is entitled to realise the service tax from its customers, yet it all depends upon contracts entered into between the parties. It is always open to the service provider to charge or not to charge the amount of service tax from its customers and to pay it from its own pocket. In the absence of any contract having been filed along with the petition we are not in position to dwelve into and adjudicate upon the issue raised by the learned senior counsel for the petitioner. 6. In view of the foregoing discussions we do not find any merit in the Writ Petition. It is accordingly, dismissed in limine.
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2005 (5) TMI 646
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... ... ..... with effect from 1-7-2003 for commissioning and installation of plant and machinery and on that ground allowed appeal. Revenue is aggrieved with this finding and contend that assessee’s function also come within consultancy service and they are required to pay the service tax. 2. I have heard both sides in the matter and have examined the issue in detail. Learned counsel has brought to my notice, the judgments of this bench in the case of Yokogawa Blue Star Ltd. v. CCE 2005 121 ECR 407 wherein this very issue was gone into in detail and the bench after examining the Board Circular No. 79/9/04/ST, dated 13-5-2004 and held that the work of erection and commissioning do not come within the ambit of consulting engineer services. The ratio of this judgment clearly applies to the facts of the case.The view expressed in this cited case is in the light of the Board Circular which is binding on the authorities. There is no merit in this revenue appeal and the same is rejected.
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2005 (5) TMI 645
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... ... ..... correlation between the returned goods and goods remelted out of the returned goods." 2) The Department has come to the appeal primarily on the basis that Commissioner of Appeals has no power to remand the matter to the lower authority. 3) Heard Shri S P Majumdar, Learned Advocate. He submits that in the case of Commr. of Central Excise, Ahmedabad-I Vs. Medico Labs. Reported in 2004 (173) E.L.T. 117 (Gujarat) has held that Commissioner (Appeals) continues to have power of remand even after amendment of Section 35A (3) of Central Excise Act, 1944 by Finance Act, 2001 w.e.f. 11/5/2001. This is based on Hon'ble Supreme Court decisions in case of U.O.I. Vs. Umesh Dhaimode reported in 1998 (98) ELT 584 (SC) 4) This Bench is of the view that the Commissioner (Appeals) has power to Remand. In view of the decisions quoted above, I remand the matter to the Lower Authority to decide the issue after observing the principles of natural justice. Appeal allowed by way of remand.
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2005 (5) TMI 644
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... ... ..... 584 (S.C.). It has been held by Gujarat High Court in the judgment quoted above that "Conflict between decisions of Supreme Court and Larger Bench of CESTAT-Supreme Court decision binding on CESTAT Benches - Larger Bench decision per incuriam hence ignorable-Article 141 of the Constitution of India". Since the Gujarat High Court has held that the Commissioner (Appeals) continues to have power of remand even after amendment of Section 35A(3) of Central Excise Act, 1944. The JDR submits that the order of the Commissioner (Appeal) is perfectly in order and the appeal be rejected. 3) I have heard both the sides. In view of the gujarat High Court decision quoted above which is based on the Hon'ble Supreme Court judgment has held that Commissioner (Appeals) has power to remand even after amendment of Section 35A (3) of the Central Excise Act by Finance Act, 2001, order of the Commissioner (Appeals) in remanding the matter to the Lower Authority is perfectly in order.
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2005 (5) TMI 643
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... ... ..... ure of show cause notice. 62. The petitioner has failed to convince this Court and make out any case as to who this Court require to interfere in the show cause notice/initiation notification while exercising power under Article 226 of the Constitution. 63. Consequently, I am not convinced with the submissions made on behalf of the petitioner and this present petition is not maintainable against the show cause notice in view of the ratio decided by the Hon'ble Supreme Court referred herein above. The writ petition deserves to be dismissed as being premature. 64. Merit part of the petition and other issues are not necessary to discuss. Since I am not convinced with the submissions advanced on behalf of the petitioner that the present petition is maintainable against the initiation notification/show cause notice, therefore, without discussing on merit the writ petition stands dismissed. Consequently, the interim order granted by this Court on 12.1.2005 also stands vacated.
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2005 (5) TMI 642
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... ... ..... x dated 23rd July, 1987. It may be mentioned here that in the presence of circular dated 23rd July, 1987 in which inter-State sales made to Military Canteens/Canteen Stores Department has been categorically held exempted from tax under Section 8 (2-A) of the Central Sales Tax Act, for taking a contrary view, one has to examine the notification afresh and to apply its mind again. It is also highly debatable that when there was Government opinion and Circular issued by Commissioner of Trade Tax granting exemption under Section 8 (2-A) of the Central Sales Tax Act on the inter-State sales to canteen Stores, treating such sales exempted generally under the State law and such circulars are held binding, whether any different view can be taken. Thus in the present situation, the alleged mistake cannot be said to be mistake apparent on the face of record which could be rectified under Section 22 of the Act. 17. In the result, revision is allowed. Order of the Tribunal is set aside.
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2005 (5) TMI 641
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... ... ..... interest and the presumption as enunciated by the Andhra Pradesh High Court would in the aforesaid case would apply, the Tribunal, therefore, held that the working done by the Appellate Assistant Commissioner in disallowing a portion of the interest was not based on any principle and the estimate based by the Appellate Assistant Commissioner was found to be incorrect. 19. In the case in hand, the Commissioner of Income-tax has recorded a specific finding about the sufficiency of the capital amount being available with the firm and its partners and has also taken note of the fact that the amount of loan which has been advanced to the sister concern M/s. Poonam Biscuits, was not advanced from the amount of loan taken from the Bank and other Government Departments. That being so, the view taken by the Commissioner of Income-tax as well as the Tribunal does not make out any referable question, so as to be answered by this Court. 20. Both the reference applications are rejected.
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2005 (5) TMI 640
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... ... ..... ew that no fault can be found in the conclusions arrived at by the Tribunal. There is no dispute that the principal activity of the assessee was to run educational institutions. While running an educational institution, it cannot be said that a dispensary is not necessary for the children and teachers of the schools. Similarly a church would be required for the nuns who donated their entire salary back to the assessee so that their maintenance, both temporal and spiritual, could be looked after by the assessee. Running an orphanage for abandoned children with the intention of enabling them to grow up and obtain education cannot be said, in any manner, to be a ground for holding that the assessee did not exist solely for educational purposes. There is no allegation that the assessee carried on its activities for purposes of profit or for any other reason. 7. On these facts of the case, we find that no substantial question of law has arisen for our consideration. 8. Dismissed.
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2005 (5) TMI 639
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... ... ..... it of Explanation 5(2) to section 271(1)(c) of the Act No. 1 of 1961. Taking the entire discussion given above, we are of the opinion that the penalty imposed and sustained by the learned CIT(A) was not justified in the eyes of law. When we hold that even the penalty sustained was not justified, then the appeal filed by the department regarding the relief has no force. We, accordingly, dismiss the appeal filed by the department and allow the appeal filed by the assessee." 4. We have heard Sri R.K. Upadhayaya, learned standing counsel for the revenue. No body has appeared on behalf of the assessee-respondent. 5. Learned standing counsel has fairly submitted that the issue involved is covered by the decision of this Court in CIT v. Radha Kishan Goel 2005 278 ITR 454. 6. Respectfully, following the aforesaid decision, we answer the questions referred to us in affirmative, i.e., in favour of the assessee and against the revenue. However, there shall be no order as to costs.
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2005 (5) TMI 638
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... ... ..... n ‘may’ employed in section 271B, which, in our view, cannot be treated to be mandatory. It has left a discretion with the taxing authority in given facts and circumstances that the penalty may not be imposed if they are satisfied that there was sufficient ground for not imposing the penalty. But it depends on the facts of each case and having regard to the materials placed before it or where the finding is such that it can conceive of two alternate meanings, then the meaning beneficial to the assessee is to be accepted." (p. 13) 25. The Tribunal has considered the matter in the facts and circumstances of the case, and has rightly held that the assessee has shown reasonable cause for not being able to file the statutory audit report within time. We do not find any error so as to interfere with the order passed by the Tribunal nor any substantial question of law arises so as to be determined in this appeal. 26. The appeal has no force and is hereby dismissed.
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2005 (5) TMI 637
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... ... ..... ically included in the schedule. Sub-section (1)(a) of Section 4 has not been included in the 9th Schedule, hence be made subject to judicial review. If the subsequent amendments are also afforded protection it would in effect confer a power on the State Legislature to amend the Constitution which is beyond its competence. Therefore the contention that since the Act has been included in the 9th Schedule it is beyond the judicial scrutiny cannot be accepted. 20. Under the above mentioned circumstances, we are inclined to set aside the judgment of the learned Single Judge and allow all these appeals. We hold that Sub-section (1)(a) of Section 4 of the Kerala Chitties Act introduced by the Finance Act 7 of 2002 is discriminatory and violative of Article 19(1)(g) of the Constitution of India and beyond the legislative competence of the State Legislature and would not bind chitties started and conducted outside the State of Kerala and therefore declared void and unconstitutional.
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2005 (5) TMI 636
Whether the Society managing or governing the trust having a separate entity; in relation to its affairs the jurisdiction of the civil court is barred?
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