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Showing 81 to 100 of 659 Records
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2006 (11) TMI 641 - ITAT DELHI
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... ... ..... by them in their bank account. It is observed from the bank accounts of various parties, that they have few transactions. Thus, it can be concluded that they are small dealers/job worker. If such supplier/job worker is mainly dealing with the assessee and because of which they have issued the bills which are in serial Nos. though it may raise doubt, will not be conclusive to hold that the payments to such parties are either bogus or sham. The bank accounts also mentions the address as furnished by the assessee and hence if on the date of enquiry such concession are later on not available, no adverse inference should be drawn. Since under overall circumstances, the correctness of the claim has been established by furnishing relevant bills, bank statements and considering the fact that but for purchase of such material and job charges, the manufacture could not have been possible, we delete the addition in respect of the above parties. 10. In the result, the appeal is allowed.
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2006 (11) TMI 640 - GUJARAT HIGH COURT
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... ... ..... etitioners should have been given an opportunity to crossexamine those experts. The notice has already been issued. Reply has been filed. Adjudication is pending before the Adjudicating Authority. In the interest of justice, we direct the respondents to give opportunity to the petitioners to cross-examine the experts before passing the final order of adjudication, if the opinion of those experts is being used in the adjudication. Petitions stand disposed of accordingly.
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2006 (11) TMI 639 - ADVANCE RULING AUTHORITY
Whether periodical payments made to the non-resident person, having no office/establishment in India, in connection with the use of software developed by him on internet are subject to tax deduction at source under the Double Taxation Avoidance Agreement with the USA ?
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2006 (11) TMI 638 - CESTAT MUMBAI
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... ... ..... f penalty upon them was not justified. Reference has been made to various decisions of the Tribunal waiving penalty in identical circumstances. 4. After having heard the Ld. DR, I find that having registered themselves with the department, the appellant was aware of its liability to pay service tax. As such, the benefit available under Section 80 of the Finance Act, in respect of reasonable cause, cannot be extended to the appellant. Financial crisis cannot be considered to be a factor constituting “reasonable cause” as envisaged in terms of the said Section 80 of the Act. However, taking into account the over all facts and circumstances including the fact on payment of tax before the issuance of the show cause notice and payment of interest. I reduce the personal penalty to ₹ 25,000/- (Rupees twenty five thousand only) but for the above modification in the quantum of personal penalty. The appeal is otherwise rejected. (Pronounced in Court on 30-11-06)
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2006 (11) TMI 637 - CESTAT BANGALORE
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... ... ..... anufacturer is not to be added to the sale price. All the facts were known to the department and clearance were made under invoices. In these circumstances to hold that there is suppression and also to impose fine and penalty is totally unjustified. The Order of the Commissioner to say the least is perverse and is not acceptable, particularly when he holds that there exists mens rea on the parts of PSU unit. The issue is they were to collect duty only on the value of price fixed by the Govt. and that additional consideration received as product price is not part of the price at all. In terms of the Board Circular and the citations, the impugned order is set aside and appeal allowed with consequential relief if any." 4.2 Respectfully following the ratio of the above noted judgments, we are of the considered opinion that the stay application and appeal are required to be allowed with consequential relief, if any. Ordered accordingly. Pronounced and dictated in open Court.
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2006 (11) TMI 636 - DELHI HIGH COURT
Section 138 of the Negotiable Instruments Act, 1881(Act) - Dishonour of cheque - insufficiency of funds - discharge of legally enforceable debt or a security cheque - Section 23 and 65 of the Indian Contract Act, 1872 - illegal gratification - void agreement - HELD THAT:- A review of the legal position with regard to the scope and ambit of the said Section 65 indicates that it would not apply to cases falling u/s 23. In other words, agreements which are void ab initio and their illegality is known to the parties at the time of execution would not fall within the purview of Section 65. An agreement of the kind mentioned in illustration (f) to Section 23 and the one at hand being void ab initio and to the knowledge of the parties would also not benefit from the equitable principle of restitution embedded in Section 65. So, neither the sum of 1,000 rupees mentioned in the said illustration (f) nor the sum of ₹ 80,000/- paid in the present case is recoverable in law.
If the facts of the present case are examined, it would be immediately clear that it does not fall in any of these three classes of cases. The first class of cases deals with situations or agreements where the object is unlawful. In the present case - securing a job in the Haryana Police for the nephew - is not an unlawful object. What is unlawful is the consideration paid for it. The consideration having already been paid, the illegality stood completed on the part of the respondent No.1. And, since the respondent No.1 would have to rely upon this illegality to make out his claim or enforce the same, this case does not also fall within the third class of cases mentioned above. This leaves us with the second class of cases where the parties are not in pari delicto.
In the present case neither party is a victim of exploitation. Both had voluntarily and by their free will joined hands to flout the law. Therefore, in terms of the Supreme Court decisions in Sita Ram v. Radha Bai [1967 (10) TMI 70 - SUPREME COURT], themselves, the parties being in pari delicto, the doctrine would apply and the sum of ₹ 80,000/- could not be recovered in a court of law. Meaning thereby that there did not exist any legally enforceable debt or liability for the discharge of which it could be said that the cheque in question was issued. Consequently, Section 138 of the said Act would not be attracted. This legal position was not appreciated by the courts below and it is for this reason that they fell into error. That being the case, the conviction of the petitioner is set aside.
It is, however, made clear by the learned Counsel for the petitioner that the sum of ₹ 1 lac, which had been deposited pursuant to the orders by the court below, has already been withdrawn by the respondent No.1 and that he would not be pressing for its return. The learned Counsel for the petitioner also submits that to maintain his bona fides, he would be paying a further sum of ₹ 20,000/- within two months to the complainant/respondent No.1. He submits that the said sum will be deposited in the trial court, which the complainant/respondent No.1 may withdraw immediately thereafter.
With these observations, the revision petition is allowed. The petitioner is acquitted. However, the petitioner has already paid a sum of ₹ 1 lac to the complainant/respondent No.1 and has undertaken to pay a further sum of ₹ 20,000/- to the complainant/respondent No.1 within two months by depositing the same in the trial court, which the complainant/respondent No.1 may withdraw thereafter.
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2006 (11) TMI 635 - CESTAT BANGALORE
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... ... ..... Commissioner has given detailed finding on this point. He prays for putting the appellants on terms. 4. On a careful consideration, we notice that the appellant is a Government of India undertaking. We find prima facie that the Board’s circular has applicability to the facts of the case. The President’s Bench has already taken a prima facie view that units which are run by Government of India come under a different footing for the purpose of putting them to terms in the Stay Application, as the burden of deposit has to be shared by Government of India and the amounts are being transferred from one department to another department. Taking the overall facts and circumstances including the merits of the case argued by the appellants, we grant full waiver of pre-deposit and staying its recovery till the disposal of the appeal. As the amounts are more than ₹ 18 crores, appeal has to be heard out of turn. Matter to come up for final hearing on 19th January, 2007.
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2006 (11) TMI 634 - SUPREME COURT
Whether an entry in a tariff schedule which after specifying the subject matter of the entry and illustrating it with examples by using the word 'like' can be construed as being limited to only the items listed by way of illustration or includes all such products as answer the classification of the entry?
Whether the revenue can change the classification of the product from the specific enumerated entry, which was accepted for 13 years to the residuary clause without any change of circumstance and without discharging the burden of proof cast on the revenue to show that the particular product falls in the residuary tariff item and not in the specific enumerated entry?
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2006 (11) TMI 633 - SC ORDER
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... ... ..... ugned order. The point in issue is concluded against the revenue by a judgment of this Court in Collector of Central Excise v. Dodsal Manufacturing (P) Ltd. 2001 9127) ELT 324 . In the said case also this Court had remanded the case to the Authority-in-Original. The appeals are dismissed in view of the judgment in Dodsal Manufacturing (P) Ltd.(supra). No costs.
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2006 (11) TMI 632 - ALLAHABAD HIGH COURT
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... ... ..... , it is open to a party aggrieved hereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. (emphasis provided). The above position was recently highlighted in U.P. State Spinning Co. Ltd. Vs. R.S. Pandey & Another (2005) 8 SCC 264." Writ petition is liable to be dismissed on the ground of alternative remedy. Present writ petition is accordingly, dismissed on the ground of alternative remedy. In case, if the petitioner applies for the return of the certified copy of the order of the Tribunal, same may be returned after obtaining the photocopy of the order of the Tribunal.
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2006 (11) TMI 631 - HIGH COURT OF PUNJAB & HARYANA
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... ... ..... 962)”. It is not disputed before us that in the present case, the amount received in excess on account of fluctuations in foreign exchange by the assessee was on account of export of goods out of India. This being the undisputed factual position, considering the scheme of the provision, there is no escape from the conclusion that the amount received by the assessee for export of goods on account of fluctuations in foreign exchange has to be treated as part of the gross turnover, resultantly entitling the assessee to the benefit of deduction under Section 80-HHC of the Act. Accordingly, we answer the question referred against the revenue and in favour of the assessee. Re Q.No.2 It is not disputed that this question has been gone into by this Court in ITR No.118 of 1996, decided on 20.9.2006, CIT, Patiala v. M/s. Hindustan Wire Products Limited. Accordingly, this question is answered against the revenue and in favour of the assessee. Reference is disposed of accordingly.
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2006 (11) TMI 630 - HIGH COURT OF PUNJAB & HARYANA
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... ... ..... ituation, addition to the income of the firm was not called for. 4. Learned counsel for the revenue relies upon the judgment of Allahabad High Court in Jagmohan Ram Ram Chandra v. CIT 2005 274 ITR 405 (All.), wherein it was observed that if the firm fails to give explanation regarding source of deposit, the firm was liable to be taxed. 5. In the present case, the firm has given explanation about the source namely Suresh Bhandari, partner, who himself is an assessee. The said partner has admitted having made deposit with the firm. Thus, as far as the firm is concerned, even if the gift claimed to have been received by Suresh Bhandari is to be rejected, the said Suresh Bhandari may be liable to be taxed by treating the said amount as undisclosed income, but the firm cannot be subjected to tax on that ground. Thus, the view taken by the Tribunal cannot be held to be erroneous. 6. In view of above, no substantial question of law arises for consideration. The appeal is dismissed.
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2006 (11) TMI 629 - CESTAT NEW DELHI
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... ... ..... doing research of final products manufactured in his factory and courier service is for the despatch of the final products. The definition of input service as indicated in Rule 2(l) on interpretation would indicate that availment of Cenvat credit on the courier services, for despatch of final products may be correct. As such, I find that the applicant has made out a strong, prima facie, case for waiver of pre-deposit of Service Tax and penalty involved in this case. Accordingly, the pre-deposit of Service Tax and penalty is waived, recovery thereof stayed till the disposal of the appeal. (Dictated and pronounced in open Court on 7-11-06)
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2006 (11) TMI 628 - SUPREME COURT
Whether even when a mistake is sought to be rectified, if by reason thereof, an employee has to suffer civil consequences ordinarily the principles of natural justice are required to be complied with?
Whether Appellant was entitled to a hearing?
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2006 (11) TMI 627 - BOMBAY HIGH COURT
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... ... ..... with the respondent’s appeal bearing No. E/111/2004, dated 12-1-2004, as the decision in the said appeal has direct bearing on the issue decided by judgment dated 4-8-2005. With the above observations, the appeal stands disposed of.
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2006 (11) TMI 626 - SUPREME COURT
Whether proviso to Section 77(1A)(b) of the Employees State Insurance Act, 1948 provided limitation of 5 years for claiming contribution and restricts the Corporation’s right from recovering the arrears of contribution as arrears of land revenue under Section 45 (B) in pursuance of an order under Section 45(A) of the Act?
Whether a concept of reasonable time can be read into the provision even though not specifically provided for?
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2006 (11) TMI 625 - CESTAT BANGALORE
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... ... ..... at the Board’s Circular should have been followed that the activity carried out by the assessee comes within the ambit of Port Services and the clarification of the Board should have been applied. 3. We have heard in extenso the learned JDR as well as the learned Counsels in the matter. The appellants are not handling the cargo of the import. They were handling the cargo of the export goods. The definition of Cargo Handling Services excludes the handling of export goods. Therefore, the Commissioner (Appeals) was correct in holding that the respondent cannot be brought under the category of Cargo Handling Services as well as under Port services. His findings that the Board’s Circular is not in terms of the definition prima facie appears to be correct. We do not find prima facie any infirmity in the order to grant stay of the operation as prayed by Revenue. The stay application is rejected. Appeal to come up in its turn. (Pronounced and dictated in open Court)
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2006 (11) TMI 624 - SUPREME COURT
Whether the inquiry conducted by the District Judge was impermissible in law?
Whether the Act makes a distinction between filing a complaint by a public servant and a court?
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2006 (11) TMI 623 - ALLAHABAD HIGH COURT
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... ... ..... soft beverages. In my opinion, these decisions are not relevant because the assessing authority taxed Badam Thandai Syrup as a “Syrup” which is one of the items notified under the entry “Soda water, lemonade, fruit-juices and other soft beverages and syrups, squashes, jam and jellies” of Notification No. ST-II-5905/X-6 (1)-83-U.P. Act 15/48-Order-83, dated 12-10-1983 and thus, there is no need to go into the question whether it is soft beverages. 13. For the reasons stated above, it is held that the Badam Thandai Syrup is liable to tax as “Syrup” under the entry “Soda water, lemonade, fruit-juices and other soft beverages and syrups, squashes, jam and jellies” of Notification No. ST-II-5905/X-6 (1)-83-U.P. Act 15/48-Order-83, dated 12-10-1983. 14. In the result, all the five revisions are allowed. The orders of the Tribunal are set aside. Tribunal is directed to pass appropriate orders under Section 11(8) of the Act.
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2006 (11) TMI 622 - SUPREME COURT
Whether the appellant alone is guilty of commission of the offence?
Whether circumstances were not such which formed links in the chain and point out only to the guilt to the accused and accused alone?
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