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2006 (5) TMI 505
... ... ... ... ..... tial duty stands paid by 24-2-2003. In these circumstances, there is no question of confirmation of interest against the appellants or imposition of penalty upon them. Accordingly, the appeal is allowed with consequential relief to the appellant. 3. It may be made clear that the impugned order passed by Commissioner (Appeals) pertains to two different appeals. Ld. Representative of the appellants have submitted that another appeal, on identical point against the same impugned order was subsequently filed by them with condonation of delay application, which is still pending. As such, it is made clear that the present order pertains to the appeal in respect of the facts narrated above. Following the ratio of the above judgment we uphold the assessee’s contention and allow the appeal with consequential relief, if any.” 5. Respectively following the ratio of the above noted judgment, we set aside the impugned order and allow the stay application and appeal.
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2006 (5) TMI 504
... ... ... ... ..... ent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor" Our attention has further been drawn to the fact that out of 29 Assistants, 4 have already retired and 17 have already been promoted. Only the cases of 8 Assistants are pending promotion. In view of the principles laid down by this Court, therefore, the cases of those 8 Assistants who had not been promoted, in our opinion, should be directed to be considered afresh. We do so. In the event, they are found to be suitable for promotion, having regard to the fact that the Chief Justice of the High Court is the appointing authority, the High Court may consider the question as to whether such promotion, if any, should be given retrospective effect or not. These appeals are allowed to the aforementioned extent. There shall be no order as to costs.
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2006 (5) TMI 503
... ... ... ... ..... is guilty of conduct contumacious or dishonest or the assessee has acted in conscious disregard of his obligation. On a perusal of the reasons given by the CIT(A), we find that the CIT(A) has treated the levy of penalty in a very casual way. The legislative intent in bringing section 273B on the statute book is that though there is a commission or omission on the part of the assessee to comply with the provisions of the Act, but no penalty should normally be imposed unless the explanation or cause for such commission or omission is not reasonable. The CIT(A) has not at all discussed anything on this issue. Moreover, as observed above, we do not find from penalty order that there was a deliberate defiance of law on the part of the assessee. In our opinion, in the light of our above observations, penalty is not sustainable. We, therefore, cancel the penalty levied by the Assessing Officer under section 271B of the Act. 10. In the result, the assessee’s appeal is allowed.
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2006 (5) TMI 502
... ... ... ... ..... discounts are to be treated as benefit arising from the advertising services and they are required to be added in the service tax. 4. On a prima facie consideration, we notice that the service tax is levied on the advertising charges paid by the clients of the appellants, while this cash discount is not paid by the clients but they received the same from the media to whom the advertisements are booked. There is no direct link between the cash discount and the advertising charges collected by the appellants from the clients. Prima facie, the ground taken by the appellant is sound and requires to be accepted. For a further reason that the appellants are likely to succeed in the matter. Therefore, the stay application is allowed unconditionally by granting full waiver of pre-deposit and staying the recovery of service tax of ₹ 4,21,431 and like sum as penalty. The appeal to come up in its turn, as there is no recurring effect and the issue is not covered by any judgment.
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2006 (5) TMI 501
... ... ... ... ..... e under this Act or Rules made thereunder in 'good faith'. However, if such good faith is ex-facie not maintained and not shown by the authorities in the orders, it would be unjustified, in the opinion of this court, to extend this protection to such erring officers. 7. The present case is a glaring example of illegal imposition of heavy penalty inspite of the fact that all the relevant documents prescribed under the law duly accompanied the goods in vehicle and were produced at the time of checking and, therefore, there was absolutely no non-compliance with the provisions of Section 78(2) of the Act. 8. Consequently, this revision petition is dismissed with cost of ₹ 5,000/- which will be borne personally and paid by the C.T.O., Anti Evasion, Bharatpur who passed the said order on 14.9.2001. Copy of this order be sent to the respondent-assessee as well as CTO, Anti Evasion, Bharatpur and Commissioner, Commercial Taxes Department, Jaipur for needful compliance.
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2006 (5) TMI 500
Addition u/s 2(22)(e) - deemed dividend - money by way of loan or advances - HELD THAT:- As per Explanation 3(b) to section 2(22), a person is deemed to have a substantial interest in a concern, other than a company, if he is, at any time during the previous year, beneficially entitled to not less than twenty per cent of the income of such concern. This clause is as evident not applicable to a company and a person having substantial interest in relation to a company as defined in section 2(32) of the Act, to mean that a person who is the beneficial owner of shares, not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits, carrying not less than twenty per cent of the voting power. Skri Atul Lakhadia himself is not a beneficial owner of the shares of 20 per cent. His shareholding is only 10.24 per cent. If the shareholding of HUF is also considered then only it exceeds 20 per cent, but as per the plain language in section 2(32) of the Act, it is the beneficial ownership of a person that alone is to be considered. In that view of the matter neither Lakhadia himself nor in his capacity as HUF was holding shares of 20 per cent or more. In these circumstances, the provisions of section 2(22)(e) applying to a concern in which such shareholder is a member and in which he has substantial interest would not apply. Shri Atul Lakhadia is no doubt a member in the assessee-company. M/s Kunal Organics Pvt. Ltd., but he has not holding a substantial interest in that concern and therefore, this provision would not be applicable.
Here, the shares are allotted to the HUF and certificate to this extent has been filed heing Register Folio Certificate for the holding of 1700 shares by the HUF. His individual shares are 2050, which is only 10.24 per cent. This view finds support from the decisions of the Supreme Court in the case of Rameshwarlal Sanwarmal v. CIT [1979 (12) TMI 1 - SUPREME COURT] and CIT v. C.P. Sarathy Mudaliar [1971 (10) TMI 8 - SUPREME COURT].
Hence, the alternate contentions of the assessee that the amounts have been advanced in the ordinary course of business need not be discussed, except to mention that when the Assessing Officer relies upon the Directors Report that no loans and advances have been given by the company, he cannot thereafter say that these were loans to the assessee-company.
Thus, we do not find any infirmity in the order of the ld. CIT(A), the same is upheld - In the result, the revenue’s appeal is dismissed.
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2006 (5) TMI 499
... ... ... ... ..... sidering the nature of expenses and the decision of the Delhi High Court, cited by the appellant, the addition made by the Assessing Officer is deleted." 13. Aggrieved by the order of the CIT (Appeals) the revenue has preferred the aforesaid ground of appeal. 14. We have heard the rival submissions. The details of the expenses are available from page Nos. 102 to 159 of the assessee’s paper-book. A perusal of the nature of expenses clearly shows that they were part and parcel of the expenses in connection with the business of the assessee. As rightly pointed out by the assessee the Assessing Officer has not pointed out any item of expense, which is of a disallowable nature. We, therefore, concur with the decision of the CIT (Appeals) on this issue and dismiss the third ground of appeal of the revenue also. 15. In the result, the appeal by the revenue, is dismissed. 16. In the result, the appeal by the assessee is allowed and the appeal by the revenue, is dismissed.
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2006 (5) TMI 498
... ... ... ... ..... he was not expected to go into matters, which were not raised before him. The respondents have produced case-laws to show that appeal by department before Tribunal is not maintainable on a new ground which was entirely new from the one taken by the department before Commissioner (Appeals). The Supreme Court, in the case of Warner Hindustan Ltd. v. Collector of Central Excise, Hyderabd - 1999 (113) E.L.T. 24 (S.C.) held that it is not permissible for the Tribunal to consider a case laid for the first time in appeal. In any case, on going through the records, we find that the refund itself has arisen on account of the fact that the respondents discharged Service Tax liability on the billed amount while what they received from their customers was much less. In these circumstances, there cannot be any unjust enrichment. Hence, the Revenue’s appeal has no merits and we dismiss the same. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2006 (5) TMI 497
... ... ... ... ..... quo;It is evident that it is not the case where the appellants on their own had opted out of the Notification No. 16/97 but they had been forced to pay the duty at full rate instead of paying the duty under the Notification on account of Adjudication Order passed in another matter by the Commissioner. Once on account of implementation of the order, they are forced to pay the duty at full rate, it cannot be claimed that they have violated the conditions of the Notification No.16/97. As in the present matter, the demand of duty has been confirmed against them only on the ground that they had contravened the condition of the Notification No. 2(iii) of the Notification, the impugned order is not sustainable. We accordingly, set aside the order and allow the appeal.” 4. There is in our view neither any perversity in the above reasoning nor does the same give rise to any substantial question of law for our consideration. This appeal accordingly fails and is hereby dismissed.
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2006 (5) TMI 496
... ... ... ... ..... eld that the said allegations are not proved. The Charity Commissioner also declined to pass an order in terms of Section 41A as regards the prayer for appointment of an administrator. The first respondent was only given liberty to file an appropriate application under the Act. In the event, such an application is filed, indisputably the same has to be determined on its own merit. We would, however, observe that any such application alleging to mismanagement of the trust, if filed, may be forwarded to the Assistant Charity Commissioner, Gujarat who shall deal with it. It is further made clear that the respondent would be at liberty to inspect the audited accounts in the office of the Assistant Charity Commissioner in terms of the scheme framed by the Gujarat High Court. In view of the aforementioned observations and directions, the impugned judgment cannot be sustained. The appeal is, therefore, allowed. In the facts and circumstances, the parties shall bear their own costs.
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2006 (5) TMI 495
Penalties imposed u/s 271(1)(c) - Revised return filed voluntarily and the surrender the concealed income being made at the initiation of the enquiry before the detection of any undisclosed income - Penalty can be escaped merely on the ground surrendered the concealed income amount? - HELD THAT:- It is not possible to hold that in every case, mere surrender of income will foreclose any action for concealment of income. Judgments of the Hon'ble Supreme Court in Sir Shadi Lal [1987 (7) TMI 3 - SUPREME COURT] and CIT vs. Suresh Chandra Mittal [2001 (6) TMI 63 - SC ORDER] have rightly been distinguished by the Tribunal. Findings recorded by the Tribunal cannot be held to be perverse in any manner, the same being based on relevant material. The assessees have been held to be members of the same family and it has also been found that revised returns were filed on coming to know about detection of concealment.
Accordingly, no substantial question of law arises - The appeals are dismissed.
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2006 (5) TMI 494
... ... ... ... ..... he manufacturer was a transaction of purchase and sale of goods and not a works contract within the meaning of s. 194C as the manufacturer was an independent establishment carrying on manufacturing activity at its own premises by applying its own means and methods for performing the required tasks and the property in the goods was passed on to the assessee only on taking the delivery of the goods.' 7. The ratio of all the above decisions would be squarely applicable to the case of the assessee. In this case also the assessee made the purchases of footwear with logo Khadim. The transaction was of purchase and sale of goods and not work contract within the meaning of Sec. 194C. 8. In view of above, respectfully following the decision of Hon'ble Delhi High Court and the Hon'ble Delhi and Pune Bench of ITAT, we hold that the assessee is not liable to deduct tax in respect of purchase of footwear with the logo Khadim. 9. In the result, assessee's appeal is allowed
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2006 (5) TMI 493
Whether in the case of a lapsed life insurance policy, the Life Insurance Corporation of India ('the LIC' for short) while paying the reduced sum payable by treating it as a paid- up policy, is liable to pay interest in regard to premiums paid from the respective dates of payment of premiums to date of settlement?
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2006 (5) TMI 492
Whether the cost of the fees payable on account of the technical know-how was includible in the value of the imported goods?
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2006 (5) TMI 491
... ... ... ... ..... n the case cited supra. It has been held that the demands could be confirmed only if the show cause notice had been issued prior to the amendment to the Finance Act covering the said services. 3. The learned Counsel submits that as the show cause notice was not issued before the amendment, the demands cannot be confirmed in terms of the cited judgment. 4. The learned SDR fairly concedes the position pertaining to the citation covering the issue. 5. On a careful consideration and perusal of records, we notice that the show cause notice was issued after the amendment brought to the Finance Act to cover the said services. In terms of the cited judgment, demands cannot be confirmed as the show cause notice had not been issued prior to the amendment. Respectfully following the ratio of the said judgment, the impugned order confirming Service tax and levying penalty is set aside by allowing the stay application and the appeal. (Pronounced and dictated in open Court)
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2006 (5) TMI 490
Deemed registration u/s 12AA - not responded by competent authority within six months - Misplaced Application - HELD THAT:- We are surprised at such stand taken by the Revenue as the record shows that the said original application is there and on it a report has been demanded by the concerned Officer in 2004. It is, therefore, clear that the authorities were simply sitting over the matter. For such non-action on the part of the authorities, the petitioner has been unduly harassed.
This Court directs the opposite parties to proceed on the basis of the application filed by the petitioner on 19th August, 2004 and which is on the record. The authorities are also directed to complete all statutory exercise within a period of six months from today and the petitioner must cooperate with the authorities by production of records. This Court makes it clear that if the authorities feel inclined to grant registration the same will relate back to the date of the application which was 19th August, 2004.
In view of the careless attitude on the part of the opposite parties and the misleading stand taken before this Court and for which the petitioner has been unduly harassed and he has to come to this Court, this Court directs opposite party No. 1 to pay a cost of ₹ 5,000/- (Rupees five thousand). Such cost must be paid in favour of the All Orissa Tax Bar Association within a period of four weeks from today.
The writ petition is thus disposed of with costs indicated above.
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2006 (5) TMI 489
... ... ... ... ..... On the other hand, it is brought to our notice by learned Counsel that in the subsequent decision of Caterpillar India Pvt. Ltd. vs. Commissioner of Central Excise, Pondicherry - 2005 (69) RLT 415 (CESTAT-Del.) 2005 (191) ELT 727 (Tri.-DeL), exemption has been held to be available even though the certificate was in name of contractor of the project and not in the name of the manufacturer/supplier of goods. Further in the case of Automatic Electric Limited vs. C.C.E. - 2004 (65) RLT 303 (CESTAT-Mum.) 2004 (178) ELT 524, benefit of exemption has been granted although the certificate in that case was issued in the name of sub contractor and not in the name of the manufacturer/supplier of the goods. Since there are conflicting decisions of the Tribunal as the goods in dispute in the present case, prima facie case has been made out by both the applicants and we therefore waive the pre-deposit of duty and penalties and stay recovery thereof pending the appeals. Dictated in Court.
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2006 (5) TMI 488
Whether the High Court was not correct in coming to the finding that the third Appellant was bound to disclose the cases in which the witnesses had not deposed against the Respondent out of fear or because of threat, etc.?
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2006 (5) TMI 487
... ... ... ... ..... th the order under challenge. The civil appeal is dismissed accordingly.
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2006 (5) TMI 486
... ... ... ... ..... , the reasoning of the Tribunal, seems to us, is in order. The Appeal is dismissed.
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