|
Advanced Search Options
Case Laws
Showing 141 to 160 of 685 Records
-
2006 (2) TMI 586 - CESTAT, MUMBAI
Cenvat/Modvat - Interest and penalty for wrong availment of credit ... ... ... ... ..... up the matter with the manufacturers situated in China through their supplier about the raw material and further there is no provision of law which directs the reversal of the credit when the goods are still lying in their factory. It is their contention that the goods were utilized in one or other manner in the manufacture of final product or they might have been cleared on payment of duty as the case may be. Therefore, in such circumstances imposition of penalty and interest amount is unwarranted. After having considered the matter and further having ignored to the fact that the ld. DR. did not point out any provision which directs the reversal of Cenvat credit except provisions involved in the Show-Cause-Notice and could not convince the contentions raised by the appellants rsquo counsel on the aforesaid law, erroneous, therefore, impugned order passed by both authorities is to be set aside and the same is set aside. In the result, appeal is allowed. (Pronounced in Court)
-
2006 (2) TMI 585 - ITAT MUMBAI
Income escaping assessment ... ... ... ... ..... is not served within period prescribed by proviso under section 143(2) and, thus, return filed will be deemed as accepted - Held, yes. 13. Thus, respectfully following the above decision of the Special Bench of the Tribunal, we are of the considered view that notice under section 143(2) in this case should have been issued within one year of the letter filed by the assessee on 6-12-1999. As the notices under section 143(2)(1) were issued for all the years on 12-9-2001, such issuance of notice is beyond statutory limit and, therefore, assessment framed in pursuance to these notices are barred by limitation. Hence, the assessment for all these years are, therefore, cancelled. We do not consider it necessary to go into the merits of the addition done by the Assessing Officer and deleted by the Learned CIT(A) for the simple reason that reassessments do not survive. 14. In the result, appeals filed by the Revenue are dismissed and appeals filed by the assessee are partly allowed.
-
2006 (2) TMI 584 - ITAT MUMBAI
... ...
... ... ..... Expenses, Car Expenses and Expenses for Tea, Breakfast, Lunch etc. 14. No argument was advanced by the learned AR of the assessee with regard to this ground in both years and hence we infer that this ground is not pressed and hence we reject this ground as not pressed in both years. Otherwise also, we find that a clear finding is given by the learned CIT(A) on page 4 of his order that the AR of the assessee did not seriously press for these disallowances. It is also stated by learned CIT(A) that similar disallowances were confirmed by him in assessment year 1996-97 and the circumstances continue to be the same and no specific instance has been brought to his notice by the AR of the assessee to show that these disallowances are not justified. For this reason also, we find no reason to interfere in the order of learned CIT(A) on this issue. This Ground is rejected in both years. 15. In the result, both these appeals of the assessee stand partly allowed for statistical purposes.
-
2006 (2) TMI 583 - ITAT AMRITSAR
Income from house property, Assessment ... ... ... ... ..... see did not act on any material but acted on pure guess and suspicion and therefore, it was a fit case for the exercise of the power of the Supreme Court under article 136 of the Constitution of India. It was also held There must be something more than bare suspicion to support the assessment order. In the aforesaid case though part of the books were not produced but the Assessing Officer made excessive estimate of income which was not based on any material. Merely because some of the books of account have not been produced before the Assessing Officer would not justify unreasonable and exorbitant estimate of income. Considering the income declared by the assessee and estimated by the CIT(A) through which part addition is sustained, I am of the view that no interference is called for in the matter. I confirm the order of the CIT(A) and dismiss this ground of appeal of the revenue. 6. No other ground is pressed or argued. 7. As a result, the appeal of the revenue is dismissed.
-
2006 (2) TMI 582 - ITAT AMRITSAR
Income escaping assessment ... ... ... ... ..... the matter with regard to the other issues. Those issues have also been considered and decided in the earlier proceedings. The assessee has filed all the details on the issue of share capital investment and enhanced loss upon which no additions have been made earlier. Therefore, the Assessing Officer was not authorised to make fishing enquiry to probe such issues because he was not having any material in his possession to form his opinion that income escaped on those issues. In this view of the matter and considering the above discussion and the case law referred to above, we are of the view that the Assessing Officer has not validly assumed jurisdiction under section 147/148 of the Income-tax Act. Resultantly, the initiation of the proceedings under section 147/148 is quashed along with the impugned orders. 13. In view of the above cases, there is no need to decide the issue on merits because of academic interest only. 14. As a result, the appeal of the assessee is allowed.
-
2006 (2) TMI 581 - ITAT AMRITSAR
Appellate Tribunal ... ... ... ... ..... t and good reasons supported by cogent and proper evidence. It is settled principle of law that provisions relating to the specified period of limitation must be applied with their rigour and effective consequences. In this case delay for filing the appeal late for only a few days was not condoned by the Hon rsquo ble Punjab and Haryana High Court. In the case of Asstt. CIT v. Taggas Industries Development Ltd. 2002 80 ITD 21, Tribunal, Calcutta Bench, Calcutta did not condone the delay for filing the appeal late by 13 days because the delay was not due to a sufficient cause. Thus relying on the above judgments and the detailed reasons mentioned above, hold that revenue has failed to explain that delay in filing the appeal was due to a sufficient cause. Therefore, the delay in filing the appeal being not due to sufficient cause, the appeal of revenue is unadmitted and dismissed on this ground itself. Order accordingly. 7. In the result, the appeal of the revenue is dismissed.
-
2006 (2) TMI 580 - ITAT CHANDIGARH
Block assessment in search cases ... ... ... ... ..... annot be said to be null and void. The ld. first appellate authority has deliberated upon the issue after considering various judicial pronouncements and cancelled the block assessment on the plea that the clarification was issued by the department to cover up the mistake and lapse which occurred at the time of issuance of notice and the notice under section 158BD may be with effect from 24-8-2000 only. Though it is an admitted position that the department for the first time mentioned section 158BD in the notice which was issued on 24-8-2000 but the question arises whether due to this technical defect whether whole proceedings can be cancelled specially when notice under section 158BC(a) of the Act was issued on 30-7-1998 and was duly received by the assessee on 5-8-1998 in our opinion, the whole proceedings cannot be said to be null and void. 13. In view of these facts and judicial pronouncements, the stand of the ld. CIT(A) is reversed. The appeal of the revenue is allowed.
-
2006 (2) TMI 579 - ITAT HYDERABAD
Block assessment in search cases ... ... ... ... ..... year. It is a matter for consideration by the taxing authorities in each case to ascertain whether the unexplained cash deficits or cash credits can be reasonably attributed to a pre-existing fund of concealed profits during the relevant assessment year. In all these cases, the unexplained income was earned only during the previous year and was utilised for acquisition of assets in that year only, whereas in the case on hand it is spread over a number of years. In any event, the facts and circumstances do not point to a reasonable conclusion that telescoping could be allowed as claimed by the assessee. The very nature of the trade activities of the assessee and lack of evidence to support the contention of the assessee result in our dismissing this ground of the assessee. The order of the CIT(A), therefore, is set aside and the order of the Assessing Officer is restored. 15. In the result, the appeals of the Revenue are allowed and the appeals of the assessees are dismissed.
-
2006 (2) TMI 578 - ITAT MUMBAI
Disallowance u/s 14A - interest on borrowed funds - used for acquiring shares as investment - Capital gains - Cost Of Acquisition - HELD THAT:- It is now settled position that income from investment i.e., dividend is exempt and hence as per the provisions of section 14A, no interest expenses on this account is allowable. The judgment of Hon’ble Jurisdictional High Court rendered in the case of Tata Chemicals Ltd.[2002 (4) TMI 42 - BOMBAY HIGH COURT] does not help the case of the assessee because in this case, it is held by Hon’ble High Court that a positive finding is given by the Tribunal that investment in tax-free bonds has been in the course of business and since it is a finding of fact, no substantial question of law arises. The Tribunal order in this case was passed on 14-1-1999 whereas section 14A was inserted with retrospective effect by Finance Act, 2001 and hence section 14A was not available before the Tribunal.
Thus, we set aside the order of learned CIT(A) on this issue and restore this issue to the file of the Assessing Officer with a direction to quantify the amount of interest expenses allowable with regard to investment in stock-in-trade out of borrowed funds and dividend received on shares held as stock-in-trade. The Assessing Officer should allow the interest as per above discussion after providing adequate opportunity of being heard to the assessee. This ground is partly allowed for statistical purposes.
It is settled position that such interest is allowable under the head ‘Income from other sources’ and in this year, the same is not so allowable because of section 14A as per which, no expenses is allowable, which are incurred for earning an exempt income and since dividend has been made exempt u/s 10(33) from 1-6-1997 being the date from which section 115-O was inserted by the Finance Act, 1997. Once we find that interest expenses is an allowable expenditure under the head ‘Income from other sources’, it cannot be allowed to be added to the cost of investment only because in this year, no deduction is allowable because the dividend income has been made exempt.
The issue in the present case is squarely covered against the assessee by the judgment of Hon’ble Calcutta High Court rendered in the case of L.N. Dalmia [1993 (3) TMI 15 - CALCUTTA HIGH COURT]. In this case also, the judgment of Hon’ble Delhi High Court rendered in the case of Mithlesh Kumari [1973 (2) TMI 11 - DELHI HIGH COURT] was considered by Their Lordships and the same was distinguished because in this case, the investment was in shares whereas in the case of Mithlesh Kumari (supra) the investment was in plots of land.
Thus, this issue is decided against the assessee and this ground is rejected - In the result, this appeal of the assessee is partly allowed for statistical purposes.
-
2006 (2) TMI 577 - CESTAT, MUMBAI
Customs House Agent’s licence - Revocation ... ... ... ... ..... the charges (in all) five Article of Charges. It has to be held that the Inquiry Officer report dated 3-5-2005, to the Commissioner has been arrived at without proper conduct of an Inquiry envisaged i.e. by hearing the noticee and grant of cross examination. It shows undue haste with which the Inquiry Report has been arrived on 3-5-2005. That itself would be a reason to be set aside and the order consequent to such an Inquiry Report as not being good in law. 6. emsp After we hold this view, we find that the Commissioner is to be directed to ask the Inquiry Officer to re-conduct the inquiry, as per law, after following the principles of natural justice, permit cross examination of various persons as sought and there after arrive at a considered report which can be considered by the Commissioner. The appeal is allowed and remanded in the above terms. The entire process should be expedited and the appellants should also co-operate with the Inquiry Officer. (Pronounced in Court)
-
2006 (2) TMI 576 - CESTAT, NEW DELHI
Demand - Cenvat/Modvat - Inputs - Reversal of outstanding credit - HELD THAT:- It is to be noted that it remains ruled by the Apex Court that Modvat credit is indefeasible. The effect of the ruling is that credit once correctly taken and utilised is incapable of being set aside, made void. In the present case, the revenue is demanding back credit which was correctly taken and utilised relying on rule 9(2). This is not permissible in view of the ruling of the Supreme Court in Dai Ichi Karkaria [1999 (8) TMI 920 - SUPREME COURT].
Coming to the submission of the learned DR that assessee opting for exemption must fulfil the terms of the exemption, it is to be noted that exemption is in terms of notification issued from year to year and not in terms of Rule 9(2) of Cenvat Credit Rules. There is no reference or incorporation of the condition of Rule 9(2) in those notifications. That apart, Rule 9(2) cannot be interpreted in a manner as to undermine the indefeasibility of Modvat credit. A reading of the said rule would make it clear that what is required in terms of the rule is to determine the Cenvat credit taken on the inputs in stock and debit it from the credit balance, "if any”, lying in assessee’s credit, and further credit balance, "if any”, lapsing and not recall of Modvat credit already utilised correctly. If the Rule contemplated additional cash payment on account of balance in Cenvat credit being insufficient, the Rule would not have qualified the credit balance as balance ”if any”. The addition of those words make it clear that Cenvat credit balance alone is contemplated and no additional payment. An interpretation that requires additional payment if the balance in the credit account is not sufficient to meet debit of Cenvat credit on inputs in stock etc. would be to permit recall of Modvat credit correctly utilised. Such an interpretation goes against the scheme of Cenvat credit and the language of Rule 9(2).
Thus, there is no merit in the appeal of the revenue. It fails and is rejected.
-
2006 (2) TMI 575 - CESTAT, NEW DELHI
Demand and penalty ... ... ... ... ..... he appeal. rdquo 6. emsp The appellant paid duty much before the issuance of show cause notice. Therefore no penalty is attracted in the present case. That apart, finding in the impugned order that there was suppression is clearly unreasonable. The appellant rsquo s explanation was that it had filed sale invoices and those invoices revealed the facts fully. Instead of considering the merits of this contention, the Commissioner brushed aside the explanation by noting that there was no requirement in law to file invoices. He proceeded to uphold the charge of suppression of facts with intent to evade duty. Clearly, the finding is beside the point. The issue for consideration was whether there was intentional suppression of facts and not whether there was legal requirement to disclose facts through the filing of invoices. And there could be none, as invoices had been filed. 7. emsp In the result, the impugned order is set aside and the appeal is allowed. (Pronounced in the court)
-
2006 (2) TMI 574 - CESTAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... nts against the order-in-original under Section 35F of the Act as he directed them to make pre-deposit of the entire duty amount and Rs. 10,000/-towards penalty. But they failed to do so. Since the appellants are facing financial hardship and had already deposited Rs. 50,000/-, they deserve to be heard on merits. Therefore, the impugned order is set aside and the matter is sent back to the Commissioner (Appeals) for hearing the appeal of the appellants on merits rdquo . 5. emsp I find that the Commissioner (Appeals) in his order-in-appeal dated 30-9-2004 had dismissed the appeal of the appellant on merits and after considering the fact, the appellant had pre-deposited an amount of Rs. 50,000/- towards duty amount. There is definitely error apparent on the record when the order was passed by the Tribunal. In view of the above fact I recall the order and restore the appeal to its original number. Registry to list the appeal in due course. (Dictated and pronounced in open Court)
-
2006 (2) TMI 573 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Imported goods ... ... ... ... ..... al Display Panel (LCD) is the part of Monitor imported by the applicant, is not having any populated printed circuit board, though, it had hybrid circuit, which cannot be separated, or detached from the LCD Panel, hence circuit is the integral part of the LCD Panel. Keeping in view of the circumstances and facts of the case as the goods in question are Crystal Display Panel and not having Populated Printed Circuit Board, the amount already deposited by the applicant is sufficient for hearing of the appeal. The pre-deposit of remaining amount of duty is waived for hearing of the appeal. The Stay petition is allowed.
-
2006 (2) TMI 572 - CESTAT, NEW DELHI
Refund - Limitation - Protest ... ... ... ... ..... uo Refund - imitation - Protest - Procedure for lodging protest - Gate passes, PLAs and RT 12 returns all carried endorsement ldquo duty paid under protest rdquo - In absence of any procedure for lodging protest during relevant time, such endorsement to be held evidence of payment of duty under protest and absence of any letter of protest cannot change character of duty being paid under protest - Refund not barred by limitation - Section 11B of Central Excise Act, 1944 Rule 233B of erstwhile Central Excise Rules, 1944 rdquo . 7. emsp From the above facts and circumstances, it is very clear that in this case the intention of the assessee was to pay the interest ldquo under protest rdquo . There is no hard and fast rule for filing of the letter of ldquo under protest rdquo in each and every case, if that intention is made implicitly clear. 8. emsp In view of the above, the appeal is allowed with consequential relief, if any, to the appellants. (Order dictated in the open Court)
-
2006 (2) TMI 571 - CESTAT, NEW DELHI
Confiscation - Absolute confiscation ... ... ... ... ..... aterials is upheld and penalty of Rs. 5,000/- is imposed on the appellants. 4. emsp As regards the confiscation of the other HMS, I find that the appellants misdirected themselves by relying on the certificate issued by their supplier and SGS, Mozambique. I find from the EXIM policy that SGS is a recognized certifying agency, but the Mozambique branch is not a recognized one to issue certificate of inspection. There is a possibility that the appellants mistook that the SGS, Mozambique as being recognized certifying agency and relying upon their certificate imported the consignment of HMS. The appellant cannot be visited with harsh redemption fine and penalty for this bona fide belief. To my mind redemption fine Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) and penalty of Rs. 50,000/- (Rupees Fifty Thousand only) would meet the ends of justice. 5. emsp Accordingly, the appeal is allowed as indicated in the above paragraphs. (Operative part pronounced in the Open Court.)
-
2006 (2) TMI 570 - CESTAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... 8. emsp This appeal is directed against confiscation of 3 coils found in the appellant rsquo s factory and imposition of penalty. 9. emsp Action has been taken pursuant to verification of stock in the appellant rsquo s factory. The finding was that there was unaccounted stock in the appellant rsquo s factory. In the reply to the show cause notice, the appellant has explained that the goods in stock are under different categories and according to the explanation, the difference is only 20 kgs. Clearly, there is no allegation of any evasion of duty. A minor variation in the stock is natural in commodities, which are accounted by way of weight. There is no offence as such in the present case. Therefore, confiscation and penalty were not justified. The penalty under section 11A of the Central Excise Act can arise only upon evasion of duty. 10. emsp The impugned order is set aside and the appeal is allowed with consequential relief, if any, to the appellant. (Pronounced in court)
-
2006 (2) TMI 569 - CESTAT, NEW DELHI
Refund claim - Protest regarding duty payment ... ... ... ... ..... paid under protest there is no need for the appellants to challenge assessment of the Bill of Entry. Ld. Commissioner (Appeals) findings that the appellants have not challenged the if assessment of bill of entry is in itself on additional ground which has not been taken in the order-in-original, which rejected the refund claim of the appellant. It is a settled law that in the appellate proceedings, a new ground cannot be taken for dismissal of the appeal. 5. emsp In view of the above, the appellant rsquo s appeal is allowed and the matter is remanded back to the original adjudicating authority to consider the case saw cited by the appellant, along with the case law in their own matter in respect of the same issue and also to consider the evidences that may be put forth by the appellant regarding non-passing over of the incidence of the customs duty and decide the matter afresh after granting the appellant an opportunity of personal hearing. (Order dictated in the open Court)
-
2006 (2) TMI 568 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... Benches on ldquo the relevant issue rdquo , has referred ldquo the issue rdquo to a Larger Bench, in which circumstance, according to ld. Counsel, waiver and stay can be granted in the instant case. However, no order of reference has been placed on record to enable us to get to know the ldquo relevant issue rdquo referred to by the Counsel. 4. emsp The appellants have not made out prima facie case. They have not pleaded financial hardships either. However, in a lenient approach, we are asking them to pre-deposit only a part of the duty for the purpose of Section 35F of the Central Excise Act. We direct them to pre-deposit Rs. 50 lakhs (Rupees Fifty Lakhs) within a period of 6 weeks and report compliance on 20-4-2006. 5. emsp Having regard to the high stake involved in the case, we would like to dispose of the appeal itself as early as possible in the interest of both sides. Accordingly, the appeal is directed to be posted to 28-4-2006. (Dictated and pronounced in open Court)
-
2006 (2) TMI 567 - CESTAT, NEW DELHI
Exemption - Captive consumption of petrol/residual fuel - Demand - Limitation - Suppression ... ... ... ... ..... /95 which provides exemption in respect of the inputs manufactured in the factory and used within the factory of production in or in relation to the manufacture of specified final product. The appellant never disclosed this fact that part of electricity so generated out of the inputs manufactured in the factory is used for the residential colony. Therefore, we find that extended period was rightly invoked by the adjudicating authority. In respect of penalty, we find that the Hon rsquo ble Supreme Court in the case of Bharat Heavy Electricals Ltd. v. Union of India reported as 1998 (99) E.L.T. 33 held that where the maximum penalty is prescribed under the act, the adjudicating authority has the discretion to impose lesser amount of penalty. Taking into consideration the facts and circumstances of the case, we find that penalty of Rupees Fifteen lacs is justifiable hence reduced to fifteen lacs only otherwise impugned order is upheld. (Pronounced and dictated in the open Court)
............
|
