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2008 (6) TMI 553
... ... ... ... ..... chasing materials, though according to him, the business was closed long before. Admittedly, the copies as requested by the petitioner were also not given. Thus in my considered opinion, though the petitioner has got an appeal remedy, since the impugned order has been passed in violation of the principles of natural justice, this court has to necessarily exercise its jurisdiction under article 226 of the Constitution of India to set aside the order. In view of the above, without going into the other merits of the case, this writ petition is allowed and the impugned order is set aside and the matter is remitted back to the respondent for fresh disposal strictly in accordance with law. Before passing any final order of determination, the respondent is directed to furnish the copies of the documents relied on by the respondent and also to afford sufficient opportunity to the petitioner to submit his objections. No costs. Consequently, connected miscellaneous petition is closed.
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2008 (6) TMI 552
Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in allowing the claim of ₹ 60,82,73,339 in respect of various transactions of local sale and ₹ 23,27,45,141 in respect of inter-State sale covered by bulk imports by ships and which were at an un-ascertained stage till the clearance from customs as sales in the course of imports by transfer of document of title to the goods within the meaning of section 5(2) of the Central Sales Tax Act, 1956 read with section 75 of the Bombay Sales Tax Act, 1959 and hence, not liable to tax under the BST Act, 1959 or CST Act, 1956?
Whether, on the facts and circumstances of the case, the Tribunal is justified in holding that provisions of Sale of Goods Act, 1930 particularly section 18 of the Sale of Goods Act, 1930 is not applicable to the transaction in dispute?
Held that:- The orders passed by the Tribunal rejecting the reference applications filed by the Commissioner cannot be faulted. See Sales Tax v. Tata Iron and Steel Co. Ltd. [2006 (12) TMI 464 - BOMBAY HIGH COURT]. Hence, we dismiss both the aforesaid sales tax applications with no order as to costs.
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2008 (6) TMI 551
Benefits of the exemption denied - assessee is a public limited company engaged in the manufacture and sale of "Portland Pozzalona cement" - whether the revising authority, viz., the Deputy Commissioner, Commercial Taxes and the Tribunal were justified in setting aside the orders of assessment passed by the assessing authority for the assessment years in question, who had simply followed the eligibility certificate issued by the Director of Industries and Commerce and the order of exemption from payment of tax passed by the Secretary, Board of Revenue (Taxes)?
Held that:- Merely because petitioner's industrial unit uses the brand name of another person, it does not mean that the petitioner's industrial unit is not manufacturing cement using fly ash and effecting sale of such cement both within the State as well as outside the State. Since the industrial unit fulfils all the conditions that are stated in S.R.O. Nos. 388/96 and 1729/93, the revisional authority/Deputy Commissioner of Commercial Taxes, merely relying upon a decision which has no bearing whatsoever on the facts and circumstances of this case, could not have initiated any proceedings for revising an order of assessment passed by the assessing authority for the two assessment years in question. Since we are granting relief to the petitioner on the first issue itself, we need not have to consider the other issues canvassed by the learned senior counsel, Sri Joseph Vellappally. In that view of the matter, the revision petitions requires to be allowed and the questions of law framed by the assessee require to be answered in favour of the assessee and against the Revenue.
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2008 (6) TMI 550
... ... ... ... ..... on examination of the evidence finds that the retracted confession if true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require that would seek assurance getting corroboration from other evidence adduced by the prosecution. 9. emsp Looking towards above situation we feel that there is no error in the impugned order and none other is brought to our notice. These appeals contain no merit and are required to be dismissed. The impugned order is correctly passed on the admissional statement of the appellants imposing penalty along with confiscation of the recovered currency. 10. emsp For the reasons stated hereinabove, these appeals are dismissed having no merits. The impugned order is sustained and maintained. The appellants are required to deposit their respective penalty immediately without loss of time on receipt of this order failing which Enforcement Directorate may recover the same in accordance with law.
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2008 (6) TMI 549
Whether the complaint under section 138 of the Act signed by a Attorney holder is not maintainable?
Whether the attorney holder can lodge the complaint?
Held that:- In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or attorney-holder has signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find no infirmity.
Allow this appeal, set aside the impugned order dated 21.8.2002 and direct the learned Magistrate to proceed with the complaint as already directed by the interim order.
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2008 (6) TMI 548
Whether in the facts and circumstances of the case, the Tribunal was right in deleting the addition made by the assessing officer on the income of the 3 flat complexes promoted by the assessee?
Held that:- Both the authorities have given concurrent finding that additions were made only by comparing with the project of M/s Alacrity Housing Limited and that assessment could not be made on surmises and conjectures. The findings given by both the authorities are that the revenue did not prove that the assessee has collected on money on the sale of flats and also there is no proof that the assessee had made unaccounted investments or credits etc. Therefore, it is clear that the concurrent findings are based on valid material and evidence. It is a question of fact and not a perverse order. The learned counsel appearing for the revenue is also unable to produce any material evidence to take a contrary view. Hence, no error or infirmity in the order of the Tribunal warranting interference. Appeal dismissed.
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2008 (6) TMI 547
Kar Vivad Samadhan Scheme - certificate dated February 26, 1999 issued under sub-section (1) of Section 90 of The Finance (No. 2) Act, 1998 determining the amount payable by the petitioner-company to settle this case at ₹ 3,63,920.09P. challenged - Held that:- The impugned certificate dated February 26, 1999 issued by the respondent no. 1 is quashed and set aside. The petitioner-company be refunded the sum of ₹ 1,19,962/- so deposited with the Registrar, Original Side, together with interest as accrued thereon. I find that the respondent no. 1 was entitled to claim ₹ 2,43,957.30p. under the Kar Vivad Samadhan Scheme, 1998. The above amount already paid to the respondent-authority in terms of the order dated March 17, 1999 be treated as payment towards revenue in full and final settlement under the Kar Vivad Samadhan Scheme, 1998.
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2008 (6) TMI 546
Natural justice - validity of impugned order - orders were passed without issuing show cause notice and without giving any opportunity of hearing to the petitioner - Held that: - it does not appear that show cause notice was issued and opportunity of hearing was granted. I find orders were passed in breach of principles of natural justice. Hence, the impugned orders cannot be sustained and thus, are set aside and quashed - petition allowed.
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2008 (6) TMI 545
Whether the Appropriate Authority was justified in passing the impugned order determining the probable market value of the flat?
Held that:- It is difficult for us to uphold the impugned order as it was necessary for the Appropriate Authority to first record a finding about the flat's " fair market value." The impugned order does not show any attempt being made to determine the fair market value. Had the price been less by 15 per cent. or more than the fair market value, then probably they could have taken further steps in the matter, there would have been rebuttable presumption of attempt to evade tax, etc. This important exercise, as said above, was essential but was not resorted to and is conspicuously absent.
The Appropriate Authority even ignored the fact that both the purchaser and the vendor showed this transaction in their income-tax returns and took a cynical view saying " unless full statement of accounts are furnished, it cannot be ascertained whether the consideration in reality flowed from the intending transferee to the intending transferor." This finding is so grossly erroneous that it borders on perversity. The more serious error in appreciation of the factual aspect of the case is the Appropriate Authority' s reliance on their own guess work while determining the probable market value of the flat. Thus quash and set aside the impugned order passed under section 269UD(1) of the Act.
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2008 (6) TMI 544
... ... ... ... ..... furnished by the DoPT probably after consulting the Cabinet Secretariat. The Cabinet Secretariat has, therefore, clearly evaded their responsibility. Being the custodians of the information, it was mandatory on their part to have decided the matter. 27. The Commission, therefore, directs the DoPT and the Cabinet Secretariat to allow inspection of the relevant files concerning empanelment of Additional Secretaries and Secretaries to the Government of India and to provide copies of the documents and records, as might be the specified by the Appellant after inspection. As inordinate delay has already been caused for no fault of the Appellant, providing of copies of the documents shall be free of cost. 28. The Appellant would be free to approach the Commission again, if he is not satisfied with the compliance of the Orders passed by the Commission. 29. Ordered accordingly. Announced on this the 12th day of June, 2008. Notice of this decision be given free of cost to the parties.
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2008 (6) TMI 543
... ... ... ... ..... rofits . . . .No contrary decision has been brought to our notice by the parties. In these facts of the case and in the light of the decisions of the hon ble Madras High Court in the case of T. Pr. Sm. Somasundaram Chettiar v. V. Rm. Sevugan Chettiar, AIR 1940 Mad 505 and the Madras Tribunal First ITO v. Sree Tirupathi and Co. 1992 40 ITD 456 we find that there being no clause in the partnership deed of the partnership firms providing payment of interest to the partners regardless of the profits to the firms, we hold that no interest is payable by the partnership firms to their partners and accordingly no right to receive interest from the partnership firms has accrued to the assessee-company and therefore, the notional addition on account of accrued interest from the partnership firms is not sustainable and the addition made is deleted and the grounds of appeal of the assessee are allowed.In the result, the appeal of the assessee is allowed.Order pronounced on June 12, 2008.
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2008 (6) TMI 542
Disallowance on interest - mercantile system of accounting - Interest bearing funds were diverted to make interest free advances - Disallowance made on account of sales promotion expenses - mistake in the order of the CIT(A).
Disallowance on interest - mercantile system of accounting - DR pleaded that from the order of the CIT(A) it has not been made clear whether any request was made by the assessee for admission of additional evidence and the ld CIT(A) also has not recorded the reasons for admitting such additional evidence as per the requirement of rule 46A(2) - HELD THAT:- It is observed that as per one of the conditions laid down in rule 46A, the assessee is entitled to submit additional evidence if proper opportunity is not given by the AO during the course of assessment proceedings. But in that case the ld CIT(A) is bound to record reasons in writing for admission of such additional evidence. Such exercise has not been done by the CIT(A). He has also not passed a speaking order with regard to the nature of the additional evidence submitted by the assessee and the contents thereof - Keeping in view these facts in mind and also the interest of justice, it is considered just and proper to restore this matter to the file of the CIT(A) with the direction to follow the procedure laid down in rule 46A of the Income-tax Rules and then re-adjudicate the matter as per the provisions of law and to pass a speaking order thereon. For statistical purposes ground No. 1 for the AY 1998-99 is considered to be allowed.
Interest bearing funds were diverted to make interest free advances - HELD THAT:- The hon’ble jurisdictional High Court in the case of CIT v. Orissa Cement Ltd. [2001 (5) TMI 31 - DELHI HIGH COURT] has dismissed the reference filed by the Revenue on the ground that a finding of fact was recorded by the Tribunal to the effect that advance made by the assessee to the subsidiary company had come out of sale proceeds and not out of borrowed funds which will not give rise to a question of law.
Thus, principally, it has been accepted by the hon’ble jurisdictional High Court that in a case where the interest free funds are available with the assessee which are sufficient to cover interest free loans advanced by the assessee, then disallowance u/s 36(1)(iii) is not justified.
We find that it is not disputed that the overdraft funds were used for a very limited period as the interest for utilisation of overdraft funds has been computed by the CIT(A) as against huge disallowance. Such calculation has not been disputed by the Revenue. The Revenue has also not controverted the arguments of the assessee that it has been maintaining a mixed account where all other funds were being deposited which are in the shape of sale proceeds and amount received from sundry creditors etc. It has already been noticed that the assessee has ample interest free funds in the shape of reserve which are far exceeding the interest free advances made by the assessee.
If such is a factual position then according to the decisions of the Delhi High Court in CIT v. Tin Box Co. [2002 (11) TMI 75 - DELHI HIGH COURT] and Orissa Cement Ltd.’s case [2001 (5) TMI 31 - DELHI HIGH COURT] and the decision of the Calcutta High Court in Alkali and Chemical Corporation of India Ltd. v. CIT [1986 (6) TMI 35 - CALCUTTA HIGH COURT], it has to be held that the disallowance has rightly been deleted by the CIT(A) and his order in this regard could not be interfered with. Thus there is no merit in the Departmental ground and the same is dismissed.
Disallowance made on account of sales promotion expenses - mistake in the order of the CIT(A) - disallowance which was sought to be deleted by the CIT(A) was Rs. 50,000 in place of Rs. 70,000 deleted by him - HELD THAT:- We restrict the disallowance to a sum of Rs. 50,000 in the place of Rs. 30,000 sustained by the CIT(A). Thus, this ground is partly allowed - We are of the opinion that if the argument of the ld AR is accepted that the assessee had sufficient own funds to cover the interest free advances and the advances were made from mixed account, therefore, it should be presumed that the advances were made out of the assessee’s own funds, then no part of the disallowance can be upheld. Accordingly, for the reasons given while deciding ground No. 2 of the Departmental appeal, the disallowance sustained by the CIT(A) deserves to be deleted and is deleted. The cross-objections filed by the assessee are allowed.
In the result, the appeal of the Revenue for the AY 1996-97 is partly allowed and those for 1997-98 and 1998-99 are dismissed. The cross-objections filed by the assessee are allowed.
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2008 (6) TMI 541
Confiscation - Smuggled goods ... ... ... ... ..... rcepted by the Customs Authorities. The Adjudicating Authority absolutely confiscated the goods and imposed penalty of Rs. 25,000/- each on the ground that the goods are smuggled in nature. Respondents filed appeal and Commissioner (Appeals) upheld the order of confiscation, however, allowed for released the goods on payment of redemption fine of Rs. 50,000/- and penalty was reduced to Rs. 5,000/-. Revenue rsquo s contention is that goods are smuggled in nature and respondent rsquo s fail to show the proof of legal import into India. Therefore, the goods were rightly confiscated and respondents were liable for higher penalties. We find that Cell Phones are not notified goods under Section 123 of Customs Act and the onus is on Revenue to show that goods in question are smuggled into India. In absence of such evidence, and admittedly the goods were purchased from Chennai, we find no merit in the present appeals and the same are dismissed. (Dictated and pronounced in open court)
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2008 (6) TMI 540
Penalty - Shortage of goods - Detection during stock verification by Department ... ... ... ... ..... n during stock verification. I do not find any material for clandestine removal of goods. It is revealed from the order of the Commissioner (Appeals) that the authorized signatory could not explain any reason for shortage. It is seen that the shortage was detected during stock verification and there is no material to appreciate the clandestine removal of goods. As such, the imposition of penalty under Section 11AC is not justified. I find that the Hon rsquo ble Punjab and Haryana High Court in the case of Omkar Steel Tubes (P) Ltd. (supra) after considering the decision of Machino Montell (supra) held that in such situation, penalty imposed under Section 11AC of the Act is not warranted. Revenue has failed to produce any evidence of clandestine removal of material by the respondents. So, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. (Order dictated and pronounced in the open Court)
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2008 (6) TMI 539
Public Call Office (PCO) monitors for use in telephone booths is an electronic equipment and not a computer - Classifiable under Entry 55 and not under Entry 56 of First Schedule to Kerala General Sales Tax Act, 1963.
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2008 (6) TMI 538
Dispensation of pre-deposit - Demand - Limitation - Manufacture - Proceedings - Stay application allowed granting waiver of pre-deposit and staying its recovery.
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2008 (6) TMI 537
Delay in refund of pre-deposit - Rate of interest ... ... ... ... ..... 2 per annum and defended the Commissioner rsquo s order fixing the rate of interest at 6 per annum. 3. emsp We have carefully considered the submissions made by both the sides. We notice from the citations referred to by the learned Counsel that the Revenue has been directed to pay interest at 15 per annum as stated above. We are bound by the judgments of the High Court referred to above and also the Tribunal rulings. The prayer made in the present case is for interest 12 per annum only. Therefore relief cannot be given beyond the prayer made. The prayer for interest 12 per annum for the pre-deposit made by the assessee for the period noted above is required to be granted by the authority. The appeal is allowed with direction that interest is to be calculated at 12 per annum and the balance amount is to be paid to the assessee within one month from the date of receipt of this order. (Operative portion of the order has been pronounced in the court on completion of the hearing)
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2008 (6) TMI 536
Valuation - Contemporaneous import ... ... ... ... ..... he Commissioner in his second order dated 28-9-2003. (b) The value of any brand to be adopted shall not be lower than the value declared by the importer. 14.1 emsp We direct the appellant to determine the duty liability on the above lines and pay the differential duty. This should be done within 3 months from the date of receipt of this order and the payment details should be intimated to the department. The appellant is also directed to file the detailed work sheet determining the duty liability with the jurisdictional Assistant Commissioner/Deputy Commissioner. 14.2 emsp We direct the jurisdictional Assistant Commissioner/Deputy Commissioner to verify the correctness of the duty liability worked out by the appellant on the above lines, and if any discrepancy is noticed, determine the duty liability by issuing a speaking order on the discrepancy, after hearing the party. 15. emsp The appeal is disposed off on the above terms. (Order pronounced in the open Court on 25-6-2008)
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2008 (6) TMI 535
Redemption fine and penalty - Quantum of ... ... ... ... ..... the higher demurrage charges the consignment has incurred lying in the docks for about eighteen months. We have also taken into account the fact that there is some shortage in the goods though on balance there is some excess. Taking into account all the attendant facts and circumstances of the case including the fact that the Appellant-Importer has imported the consignment for the first time, we reduce the Redemption Fine to Rs. 1.00 lakh (Rupees one lakh) and reduce the Penalty to Rs. 50,000.00 (Rupees fifty thousand) only. 6. emsp As regards the Appellant CHA, since there is no evidence establishing his involvement in the undervaluation and misdeclaration of the goods, we are of the view that he needs to be extended the benefit of doubt. Accordingly, we set aside the penalty imposed on him. 7. emsp Accordingly, the Appeal of the Appellant-Importer is partly allowed and the Appeal of the Appellant CHA is allowed in the above terms. (Dictated and pronounced in the open court)
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2008 (6) TMI 534
Refund - Cenvat/Modvat ... ... ... ... ..... standing credit on inputs used in the production of the exported goods. The exports in the present case had taken place in 1996. Therefore, the relevant credit for the purpose of refund would be of that period. This is the position clarified by the Board also in its clarificatory letter dt. 12-12-97. Therefore, we are of the view that there is no justification for denying the refund to the respondents or in asking them to reverse the credit earned on purchase of inputs during a subsequent period. The impugned order being in conformity with, the instructions of the Board, it is not open for the Revenue to challenge it before us. In the circumstances, we are not able to find merit in the appeal. The appeal is accordingly rejected. rdquo 6. emsp In as much as the issue stands decided by above referred decision in favour of the appellant, I set aside the impugned order and allow the appeal with consequential relief to the appellant. (Dictated and Pronounced in Court on 27-6-2008)
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