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Showing 61 to 80 of 658 Records
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2008 (10) TMI 673
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... ... ..... ue as a consequence of order of the AO cannot be said to be prejudicial to the interest's of revenue. The term, total turnover has not been specifically defined u/s 10A of the IT Act. The total turnover being sum of export turnover and non-export turnover. So, the total turnover can be viewed as nothing but the sum of export turnover and domestic turnover. As export turnover is already defined, the same value of export turnover should be adopted in determining the value of total turnover. The term export turnover and total turnover be interpreted in the same manner. Hence, the amounts reduced while calculating export turnover would also need to be reduced while calculating the value of total turnover for the purposes of allowing exemption u/s 10A of the IT Act. Under the facts and circumstances, the CIT was not justified in invoke the provisions of sec. 263 of the IT Act. 5. In the result, the order of CIT is quashed. Order pronounced in the open court on the 31.10.2008.
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2008 (10) TMI 672
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... ... ..... sible to pick out a word or a sentence from the judgment of the Supreme Court divorced from the context of the question under consideration and treat it to be the complete law declared by the court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the court. A decision of the Supreme Court takes its colour from the questions involved in the case in which it is rendered and, while applying the decision to a later case, courts must carefully try to ascertain the true principle laid down by the decision." Hence, clearly the revenue has erred in relying on these case laws, which in fact support the view taken by us. On the anvil of aforesaid discussion and precedents, we hold that the learned Commissioner of Income-tax (Appeals) was correct in holding the impugned rectification order as invalid, time being barred. 15. In the result, this appeal filed by the revenue is dismissed.
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2008 (10) TMI 671
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... ... ..... tion and loading and unloading. CBEC Circular dated 01.08.2002 and 12.11.2007 clarifies that an activity of loading and unloading, even within the coal mining area would be covered under the services of "cargo handling service". The implication of the agreement between the appellant and coal fields needs to be gone into detail, which can be done only at the time of final hearing. We are of the considered view that the applicant has not made out prima facie case for complete waiver of the amounts involved. As the issue needs to be gone into detail, which can be done only at the time of final hearing, applicant is directed to pre-deposit an amount of Rupees Thirty Lakhs within eight weeks from today and report compliance on 15.12.2008. Subject to such compliance being reported, there shall be waiver from pre-deposit of the balance amount of service tax and penalties imposed and recovery thereof stayed till disposal of the appeal. Pronounced and dictated in the court.
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2008 (10) TMI 670
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... ... ..... me offence, it would be salutary principal for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence. The view expressed in Gyan Singh’s case (supra) finds support from the case of T. Barai v. Henry Ah Hoe & Anr. 1983 (1) SCR 905 . The High Court was not justified in holding that new offence was created. Before the amendment as well as after the amendment the ingredients of Section 8 remain same and there was no amendment in this provision. Only punishment for contravention in relation to cannabis plant and cannabis i.e. Section 20 of the Act has been amended by the Amendment Act. 6. The appeal is, therefore, dismissed with clarification that no new offence was created by the Amendment Act. But at the same time no punishment higher than what was originally provided for can be imposed on the accused. 7. The appeal is dismissed with the aforesaid clarification.
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2008 (10) TMI 669
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... ... ..... of Application No. P.17 of 1998, reported in 236 ITR 637 wherein the Authority for Advance Rulings has considered the DTAA between UK and India and held that the said identical interest to be taxable under the provisions of the said Article at 15 . It was stated before us that the provisions of DTAA with USA are identical to the DTAA between India and UK. 10. We have gone through the decision of the Authority for Advance Rulings wherein in an identical issue is involved and held that the said interest income received from I.T. Deptt. is liable to be taxed under Article 11 of the applicable treaty. The facts in this case are almost identical and even the provisions of the treaty are also identical. We, therefore, following the same principle, direct the AO to assess the said interest 15 under Article 11 of the Indo-US Treaty. 11. In the result, the appeal of the revenue is partly allowed and the C.O of the assessee is allowed. 12. Order pronounced in open court on 24.10.2008.
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2008 (10) TMI 668
False misrepresentation - fraudulently and dishonestly induced the complainant and her deceased husband to place their signatures and thumb impression on some papers - Power of Attorney was used by the accused for executing a sale deed in favour of his wife Vijaya Satardekar (Respondent Nos. 2) - it was contended that High Court should not have relied on the evidence in the Civil Suit for the purpose of quashing the criminal case -
HELD THAT:- It cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted.
However, in this case it cannot be said that the evidence in the Civil Suit which was produced by the defence before the trial court established convincingly that the prosecution case is totally absurd or preposterous. In our opinion this is a matter which has to be looked into by the trial Court.
In DR. MONICA KUMAR & ANR VERSUS STATE OF U.P. & ORS [2008 (5) TMI 687 - SUPREME COURT] this Court referred to various decisions on the point of quashing the criminal proceedings against the accused. In this decision this Court quashed the criminal proceedings against the accused, though on the allegations in the F.I.R. prima facie an offence was made out. Thus quashing of the criminal case was done considering all the facts and circumstances of the case. No doubt, in this decision the Court has relied on Article 142 of the Constitution, but in our opinion the result would have been the same irrespective of Article 142.
The judgment of the High Court in respect of Ranjit Sataredkar set aside - it is directed that the criminal proceedings against him will go on in the trial Court - appeal allowed.
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2008 (10) TMI 667
Maintainability of petition - alternative remedy of appeal - time limitation - principles of Natural Justice
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2008 (10) TMI 666
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... ... ..... ize his A.O. to record satisfaction in the case of the assessee. Thus, we are in the agreement with the learned counsel, albeit for somewhat different reasons, on the issue that the second mentioned A.O. did not have the jurisdiction to issue notice under section 158BC read with section 158 BD on 15.07.2002. Therefore, the order passed on the basis of this notice is invalid in the eye of law. In other words, the plea of the assessee supports the order of the learned CIT (A), albeit on totally different grounds, which is permitted under Rule 27 of the Appellate Tribunal Rules as well as the decision of the Hon'ble Bombay High Court in the case of B.R. Bamsi (supra). 7. As the matter has been decided in favour of the assessee on a preliminary ground, it is not necessary for us to examine the merits of the additions made by the A.O. but deleted by the learned CIT (A). 8. In the result, the appeal of the revenue is dismissed. Order pronounced in the open Court on 04-07-2008.
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2008 (10) TMI 665
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... ... ..... esent set of facts. Various case laws deals with the situation prevailing in facts of each case. The ultimate ratio laid down in all the cases is that if the genuineness of gift is established along with the identity and creditworthiness of the donor, the same were accepted and if not the same were added as income. Therefore, each case is on its own facts and no general rule can be applied, However, the broad criteria having been laid down by the courts and which are said to be satisfied in the present case, the addition of ₹ 60 lacs deserves to be deleted. 17. Ground No.3 is against disallowance of additional sales-tax of ₹ 2765 and job work expenses of ₹ 20,545 was not pressed. The same is therefore, dismissed for want of prosecution. 18. Ground Nos.1 and 4 are general in nature on which no arguments were advanced and which do not call for any adjudication. 19. In the result, the appeal is partly allowed. Pronounced in the open court on 24th October 2008.
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2008 (10) TMI 664
CENVAT credit - inputs - case of the Revenue is that as the inputs are used in the manufacture of final product which attracts Nil rate of duty, therefore, respondents are not entitled for taking credit - Held that: - the manufacturer is eligible to take credit in respect of input credit of duty paid on inputs which are used in the manufacture of final product being exported in respect of the fact that final products are otherwise exempted - appeal dismissed - decided against Revenue.
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2008 (10) TMI 663
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... ... ..... eciation and the same is to be allowed to be set off against income from any other head. Though the Finance Act, 1996 has taken away the treatment given to the unabsorbed depreciation of the earlier years as the current year depreciation, the original section as stood for asst. yr. 1996-97 was restored by the Finance Act, 2001. A new amended s. 32(2) is applicable to the present case as stood in the statute as on 1st April, 2003 for the asst. yr. 2004- 05 and as stood on 1st April, 2004 for the asst. yr. 2005-06. Accordingly, s. 32(2) amended by the Finance Act, 2001, which is in force w.e.f. 1st April, 2002 is applicable for these two assessment years and as per this section, the assessee is entitled to set off of unabsorbed depreciation relating to asst. yr. 1996-97 with the income from other sources of these two assessment years i.e. 2004-05 and 2005-06. Accordingly, the appeals of the Revenue are dismissed. 6. In the result, both the appeals of the Revenue are dismissed.
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2008 (10) TMI 662
Disallowance of foreign travelling expenses and hotel expenses - expenses related to business activity or not? - HELD THAT:- The expenses on airfare is wholly and exclusively for the purpose of business. Therefore, such expenses could not have been disallowed even in part. As regards hotel expenses, when the assessee or its employees travelled abroad and stayed in the hotel, the expenses are wholly and exclusively for the purpose of business. From the details the AO has not found out as to which part is not towards travel abroad or for otherwise than for the purpose of business. Accordingly the sustenance of disallowance is not in accordance with law. We, therefore, delete the entire disallowance.
Disallowance of the expenses on proportionate basis - AO invoking provision of section 14A - When the assessee specifically denied having incurred any expenditure and having also proved that the expenditure was incurred in the business of real estate agent, it was for the AO to prove that such expenditure was not incurred in the course of carrying on business but were incurred for earning exempt income. The AO having failed to do such exercise cannot presume and allocate the expenditure in the ratio of exempt income to total income. The finding has to be specific. The nexus has to be proved. In absence of such finding or nexus, provisions of section 14A cannot be invoked so as to disallow the expenses on proportionate basis. We, therefore, delete the disallowance
Unexplained investment u/s 69B - construction of house property - difference in the cost of construction and cost of investment in the property - CIT deleted the addition made by AO - Assessee filed complete details in respect of investment made. Total investment by three co-owners - HELD THAT:- Considering the facts it cannot be said that there was any unexplained investment by the assessee in construction of house property, After all the report of DVO is only an opinion and not a conclusive proof that any unexplained investment has been made. Moreover, defects were also pointed out in the said report. Considering these facts, we find that the addition was rightly deleted by the ld CIT(A).
Expenses claimed in excess of income from commission and after reducing the amount of house tax paid is disallowed - AO disallowed the expenses on the ground that the receipt is minuscule whereas the expenses are manifold. However, when the claim is made in respect of business expenses u/s 37(1) what is to be examined is whether the expenses are incurred wholly and exclusively for the purpose of business or not. Since there is no dispute about this fact, there cannot be ad hoc or artificial disallowance without giving a finding that particular expense was not incurred for the purpose of business. We, therefore, delete the disallowance.
In the result, the appeal of the assessee is allowed and that of the revenue is dismissed.
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2008 (10) TMI 661
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... ... ..... econd proviso cannot be applied to the present case and the interest is not leviable for the period prior to the amendment of the Section 11AB. 4. The learned SDR submits that since they have not paid the duty for the previous period, the interest can be charged for the period prior to the amendment to the Section 11AB. 5. We have carefully considered the submissions made by both the sides. We notice that the duty demand involved in this case is for the period prior to the amendment to the Section 11AB. Therefore the argument raised by the learned Counsel that the interest is not leviable for the period prior to the amendment to the Section 11AB is justified. It is hereby ordered that in view of the second proviso to Section 11AB, no interest liability would arise on the duty amount which became payable prior to the date (i.e. on 11.5.2001) of amendment to the Section 11AB of the Central Excise Act. The appeal is disposed of accordingly. Pronounced and dictated in the Court.
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2008 (10) TMI 660
Validity of reopening of assessment u/s 147 - Jurisdiction of ITO - notice u/s 147 was issued by the ITO, Ward 25(4) on the basis of the address mentioned in the bank account of the assessee with the SBI - Having received the notice u/s.148 issued by the ITO, Ward 25(4) the assessee raised objection challenging the jurisdiction of the ITO, Ward 25(4).
HELD THAT:- The fact that the present assessee filed his return of income for the AY 1995-96 before the ITO, Ward 24 (1) is not in dispute. In the assessment for the AY 1995-96, the AO charged interest u/s. 234A against which the assessee filed an application u/s.154 before the ITO, Ward 24(1), who completed the assessment for the AY 1995-96. The ITO, Ward 24(1) then passed an order u/s. 154 and reduced the interest u/s. 234A. It is thus clear that the ITO, Ward 24(1) exercised jurisdiction over the assessee when he passed the order u/s. 154 on an application filed by the assessee u/s.154 with reference to the return of income for the AY 1995-96.
The present notice has been issued u/s.147 by the ITO, Ward 25(4), when the jurisdiction over the assessee’s case was with ITO, Ward 24(1), New Delhi. Thus, from this aspect of the matter also, the notice u/s.147 issued by ITO, Ward 25(4) was without jurisdiction. Moreover, the ITO, Ward 33(2) who passed the present assessment order without issuing any fresh notice u/s.148 cannot be said to have a valid jurisdiction over the assessee unless and until the case has been transferred to him from ITO, Ward 25(4), by an order passed u/s.147 by any competent authority. In the present case, the ITO, Ward 33(2) had exercised the jurisdiction merely on the basis of intimation given by the ITO, Ward 25(4), and merely on file being transferred by the ITO, Ward 25(4) of his own to the ITO, Ward 33(2).
The Hon’ble Delhi High Court in the case of CIT vs. Smt. Anjali Dua [2008 (7) TMI 958 - DELHI HIGH COURT] held that the notice issued u/s.148 by the then ITO, Ludhiana was without jurisdiction inasmuch as the assessee had shifted from Ludhiana to New Delhi and had been filing his return of income for AY. 1997-98 onwards at New Delhi.
We are inclined to uphold the order of the CIT(A) in holding that the assessment made by the ITO, Ward 33(2) is without jurisdiction and thus invalid and is thus to be cancelled. The order of the CIT(A) is thus upheld.
Appeal filed by the Revenue is dismissed.
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2008 (10) TMI 659
Prayer for Re-allotment/re-sitement of the two petrol pumps - due to construction of the grid separator - not have any access for refueling - economically unviable - legitimate expectation - recommendation of the Technical Committee binding on the DDA? - Whether rejection of appellants claim for resitement on the basis of the revised policy of the year 2003, their substantive legitimate expectation of being considered under the old policy of 1999 has been defeated? - The stand of the DDA before the High Court was that its policy and guidelines of 1999 for re-sitement of petrol outlets and gas godowns had been revised in June, 2003, superceding all its earlier policies on the subject. As per the new policy, re-sitement was permissible only when the land of an existing outlet was utilized for a planned proposal/scheme directly necessitating its closure - DDA rejected appellants' prayer - High Court having dismissed both the appeals.
HELD THAT:- We find it difficult to hold that the recommendation of the Technical Committee of the DDA fructified into an order conferring legal right upon the appellants. From the notings of the Commissioner and the order of the Vice Chairman, it is manifest that although there were several notings which recommended consideration of the appellants' case for relocation but finally no official communication was addressed to or received by the appellants accepting their claim. Thus, It is clear that though the proposals had the recommendations of State Level Co-ordinator (oil industry) and the Technical Committee but these did not ultimately fructify into an order or decision of the DDA, conferring any legal rights upon the appellants.
This Court in Punjab Communications Ltd. vs. Union of India and Ors.[1999 (5) TMI 605 - SUPREME COURT], referring to a large number of authorities on the question, observed that a change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury" reasonableness. The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. Therefore, the choice of the policy is for the decision maker and not for the Court. The legitimate substantive expectation merely permits the Court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. Bannari Amman Sugars Ltd. vs. Commercial Tax Officer and Ors.[2004 (11) TMI 320 - SUPREME COURT].
It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power.
It is manifest that even under the 1999 policy, on which the entire edifice of appellants substantive expectation of getting alternative land for resitement is built does not cast any obligation upon the DDA to relocate the petrol pumps. The said policy merely laid down a criterion for relocation and not a mandate that under the given circumstances the DDA was obliged to provide land for the said purpose. Therefore, at best the appellants had an expectation of being considered for resitement. Their cases were duly considered, favourable recommendations were also made but by the time the final decision-making authority considered the matter, the policy underwent a change and the cases of the appellants did not meet the new criteria for allotment laid down in the new policy.
We are convinced that apart from the fact that there is no challenge to the new policy, which seems to have been conceived in public interest in the light of the changed economic scenario and liberalized regime of permitting private companies to set up petrol outlets, the decision of the DDA in declining to allot land for resitement of petrol pumps, a matter of largesse, cannot be held to be arbitrary or unreasonable warranting interference. Moreover, with the change in policy, any direction in favour of the appellants in this regard would militate against the new policy of 2003. In our opinion, therefore, the principle of legitimate expectation has no application to the facts at hand.
Therefore, the appeal is devoid of any merit and deserves to be dismissed. It is dismissed accordingly.
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2008 (10) TMI 658
Assessment-Reassessment under section 143(3),147 – No new Information – The Tribunal took the view that no new information/material had come to the Assessing Officer after completing the original assessment to form any belief about the escapement of the assessee’s income and that such a belief was entirely based on reappraisal or reconsideration of the material/information already available on record at the time of completion of the original assessment. The tribunal also noted that the letter which was relied upon by the Department as the new information/material coming into the possession of the Assessing Officer was a letter dated August 28, 1999. The Tribunal arrived at the conclusion that the reassessment under section 147/143(3) was not justified as no new material had come before the Assessing officer. Thus it cannot be said that any income had escaped assessment. Taking note of the Supreme Court decision in the case of Indian and Eastern Newspaper Society v. CIT [1979] 119 ITR 996 the Tribunal accepted the assessee’s plea that the reopening of the assessment was not warranted under law. Consequently, the reassessment completed by the Assessing Officer under section 147/143(3) of the said Act was quashed. In this case Delhi High Court-held that the Tribunal has correctly appreciated the law No interference with the decision of the Tribunal is called for. In any event, no substantial question of law arises for our consideration. The appeal is dismissed. – Decision in favor of assessee – against the revenue
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2008 (10) TMI 657
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... ... ..... question of law framed in respect of above issues is answered in favour of the assessee. o p /o p 11. The documentary evidence discloses that during the assessment year in question, the machinery was revamped. In that view, a fresh agreement was entered into a pay higher rent of ₹ 90,00,000/- instead of ₹ 52,50,000/- The fact that the agreement was with retrospective effect, would not make it a sham transaction. The lessor is also an assessee. The amount paid has been accounted by the lessor in instalments. Therefore, the assessee is entitled to legitimate deduction towards the enhanced rent. Accordingly, all the questions of law are answered in favour of assessee. Accordingly the appeal and the reference is disposed of in the terms indicated above. o p /o p 12. Sri M.V. Sheshachala learned counsel for the petitioner in ITRC 1/2008 and Sri Ashok A kulkarni, learned counsel for the respondent in ITRC 1/2008 are permitted to file vakalath within one week. o p /o p
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2008 (10) TMI 656
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... ... ..... was simply an estimate and not an income earned by the assessee. Even against an estimate made by the Assessing Officer, there has to be some material to show that, over the estimate made by the assessee, the estimate made by Assessing Officer has prevailed. Therefore, there is no satisfactory explanation of the assessee in respect of this addition as well. 28. The ld. CIT(A) has directed the Assessing Officer to work out leviable penalty after carrying out necessary rectification on the application of the assessee. Since no contrary view has been expressed by either parties, we hold that such directions of the ld. CIT(A) are fair and do not require any interference. 29. As a result, we do not find any merit in the appeal filed by the assessee or by the Department. 30. In the result, appeal filed by the assessee as well as by the Department are dismissed. Cross Objection filed by the assessee is also dismissed. 31. The above decision was announced in the court on 17-10-2008.
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2008 (10) TMI 655
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... ... ..... preciation. The Tribunal has considered that aspect of the matter in the light of the material on record and has recorded the finding that it is not a sham and bogus transaction. One of the grounds considered for recording that finding is that when the other party is a statutory body the question of evasion of tax does not arise, and therefore, according to the Tribunal, inference of collusion cannot be drawn. Hence, no question of law arises.
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2008 (10) TMI 654
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... ... ..... al have both returned finding of fact to the effect that the dealings between the assessee and its suppliers were on principal to principal basis and did not amount to transactions in the nature of works contract. 3. The Tribunal also noted that the present case was predominantly one of a contract of sale packing material and was distinguishable from the feels of the decision of the Supreme Court in the case of State of Tamil Nadu v . Anandam Viswanathan 1989 73 STC 1 (SC). Thus, on facts, the Tribunal has concluded, that the provisions of s. 194C would not be applicable because the transactions were not in" the nature of works contract. We also have support of the similar decisions in the case of CIT v . Dabur India Ltd 2005 198 CTR (Delhi) 375 2006 283 ITR 197 (Delhi) and CIT v . Reebok India Co. (ITA No. 1209/2006) decided on 31-7- 2008 reported at 2009 221 CTR (Delhi/) 508-Ed. . 4. No substantial question of law arises for our consideration. The appeal is dismissed.
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