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Showing 81 to 100 of 822 Records
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2009 (1) TMI 865
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... ... ..... shall not be acted upon and his case for promotion is to be considered by the next DPC in the normal course and having regard to the punishment imposed on him. This aspect has also been clarified in the unreported decision of the Supreme Court dated 18.04.2007. The contention of the first respondent that the Memorandum issued by C & AG in the year 1990 was not considered by the Supreme Court in the decision of Union of India v. K.V.Jankiram (AIR 1991 SC 2010) is of no consequence, as the subsequent decision has considered all the relevant aspects and come to a conclusion that the procedure adopted in Rule 3.1 is to be followed. It has been highlighted in the same decision that even Censure is also a punishment and therefore, Rule 3.1 is to be followed. 8. In such view of the matter, we are unable to accept the conclusion of the Tribunal. The writ petition is accordingly allowed and the order of the Tribunal is quashed. No costs. Consequently, M.P.No.1 of 2008 is closed.
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2009 (1) TMI 864
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... ... ..... by the firm i.e., 1st April, 1989. All the partners have confirmed that they had introduced those amounts as their capital contribution. Obviously, it was for the partners to explain the source of the deposits and if they failed to discharge the onus then, such deposits could be added in the hands of the partners only and not in the hands of the assessee firm. In any case, such capital contributions entered into the books of accounts of the assessee firm prior to the commencement of the business cannot be treated to be the income of the assessee firm. In considered opinion of this Court, such unexplained credits may be added to the income of the partners concerned in terms of s. 69 and not under s. 68 of the Act of 1961. 8. For the aforementioned reasons, in our view, no substantial question of law arises out of the order impugned passed by the learned Tribunal for consideration of this Court. 9. In the result, the appeal fails; it is hereby dismissed. No order as to costs.
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2009 (1) TMI 863
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... ... ..... or purchase of software from Microsoft Sales Corporation. 3.3 During the course of proceedings before us, the learned AR submitted that the assessee has purchased raw material and consumables from a related party. There is no provision under the Income Tax Act which required the assessee to deduct tax at source from the purchases effected from a non-resident entity. 3.4 On the other hand, the learned DR supported the order of the authorities below. 3.5 We have heard both the parties on this issue. No specific provision was brought to our knowledge which require the assessee to deduct tax at Source in respect of the purchase. The fact that the assessee has made purchases has not been rebutted by the revenue. Hence, it was not a case where TDS was required to be deducted and therefore, provision of section 40(a)(i) is not applicable. Disallowance made by the Assessing Officer is deleted 5. In the result, both the appeals are allowed. Pronounced in the open court on 30.01.2009.
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2009 (1) TMI 862
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... ... ..... obtaining ISO 9002 certification, the fixed capital of the company has not enhanced in any manner. It rather created a positive image of the products of the assessee for the smooth conduct of the business. The CIT(A) was justified in treating the entire amount as revenue in nature." 13. The learned Departmental Representative for the Revenue could neither controvert the above submissions of learned Authorised Representative for the assessee nor could cite any case law wherein a contrary view has been taken. Hence respectfully following this decision (supra) it is held that the CIT(A) was fully justified in treating this expenditure incurred for obtaining ISO certificate as revenue in nature and allowing the same to the assessee. Accordingly the order of CIT(A) in this regard is upheld and ground No. 4 of the appeal of Revenue is rejected. 14. In the result the appeal by the Revenue as well as cross-objection, ITA No. 1406 of 2008 and C.O. No. 140 of 2008 are dismissed.
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2009 (1) TMI 861
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... ... ..... sic) laying down that the galleries were not to be considered as part of chambers for determining the APC. 3. However, there is no dispute that the galleries are not to be taken into consideration. The demand stands confirmed against the appellants on the ground that they have not challenged the APC fixed by the Commissioner and as such they are bound by the same. We find that the law is no more res integra and stands settled by the Hon’ble Bombay High Court in the case of M/s. Om Textiles P. Ltd. v. CCS, Belapur 2006 (74) RLT 233 (Bom.) 2014 (310) E.L.T. 236 (Bom.) laying down that even in the absence of challenge to APC fixed by the Commissioner, benefit of law declared by the Hon’ble Supreme Court is required to be extended to them. By following the said judgment, we set aside the impugned order and remand the matter to Original Adjudicating Authority for fresh decision in the light of the decision of Hon’ble Bombay High Court. (Pronounced in Court)
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2009 (1) TMI 860
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... ... ..... ceipts on account of modeling, brand ambassador services (Assessment Year 2002-03), stage shows and product endorsement. We are not addressing the issue of allowability of deduction under Section 80-RR of the Act on the merits of the case. We direct the Assessing Officer to allow the claim of the assessee in accordance with the law and after taking into consideration the relevant legal propositions decided on the issue. The assessee before us had relied on the decisions in the case of Amitabh Bachchan vs DCIT (supra) and Shri Shahrukh Khan vs DCIT (supra) for allowing the claim of the assessee, which shall be considered by the Assessing Officer both in accordance with Law and also in accordance with the legal propositions available on the issue. Thus, the grounds of appeals raised by the assessee are partly allowed for statistical purpose. 32. In the result, both the appeals filed by the assessee are partly allowed for statistical purpose. Order pronounced on the 30.01.2009.
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2009 (1) TMI 859
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... ... ..... direction was affirmed by the Tribunal on appeal at the instance of the Revenue. The correctness of the said order is canvassed in this appeal. (3) WE have heard the argument of the learned counsel appearing for the Revenue and perused the material on record. The learned counsel appearing for the Revenue submits that the issue is squarely covered against the Revenue in the decisions rendered by the Division Bench of this Court in the cases of CIT vs. M. Gani & Co. (2008) 301 ITR 381 (Mad), CIT vs. Rathore Brothers (2002) 175 CTR (Mad) 60 (2002) 254 ITR 656 (Mad) and CIT vs. Suresh B. Mehta (2007) 291 ITR 462 (Mad). In all these cases, the Division Bench of this Court has clearly held that the assessee having maintained separate books of accounts for export business and domestic business, it was entitled to deduction under s. 80HHC of the Act fully on the export profit only. (4) IN the light of the above decisions, we find no merit in this appeal. The appeal is dismissed.
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2009 (1) TMI 858
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... ... ..... Brij Bhusan, Adv. Mr. K.K. Mani, Adv. Mr. C.K.R.Lenin Sekar, Adv. Mr. Mayur R.Shah, Adv. Mr. M.K.D. Namboodiri(NP) Mr. Haripriya Padmanabhan, Adv. Ms. Liz Mathew, Adv. Mr. Senthil Jagadeesan, Adv. Mr. P.S.Narsimha, Sr. Adv. Mr. Aribam Guneshwar Sharma, Adv. Mr. R.Venkataraman, Sr. Adv. Mr. V.Prabhakar, Adv. Mr. Ramjee Prasad, Adv.for Mrs. Revathy Raghavan, Adv. Mr. Nikhil Nayyar, Adv. ORDER Delay condoned. Leave granted in Special Leave Petiitons. The applications for amendment of cause title are allowed. Learned counsel for the parties state that the matter is squarely covered by the judgment of the Division Bench of this Court in the case of CIT vs. Ramaraju Surgical Cotton Mills reported in (2007) 294 ITR 328. Accordingly, we accept these appeals and remit them to CIT(Appeals) who is directed to dispose of the matter in accordance with law and in terms of the directions given in the above judgment in the case of Ramaraju Surgical Cotton Mills(supra). No order as to costs.
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2009 (1) TMI 857
Challenging the validity of Assessment - proceedings initiated by the AO u/s. 153C r/w s. 153A was void and without jurisdiction - search and seizure operation u/s.132 - assessee submitted that as a consequential to the search operation, no document was unearthed by the Department which had resulted in deduction of any undisclosed income - CIT(A) held that there is no legal requirement u/s. 153A/153C to record reasons or obtain prior approval of higher authorities for reopening of the assessment proceedings - he concluded that assessee's counsel has thoroughly misinterpreted the provisions of s. 153A/153C and has raised a frivolous and malicious objection with regard to the assessment proceedings
HELD THAT:- It is evident that the Hon'ble High Court in the case of Abhay Kumar Shroff v. CIT [2007 (2) TMI 169 - JHARKHAND HIGH COURT] was of the opinion that under these provisions AO shall issue notice to furnish return of income in respect of the six assessment years and thereafter make assessment or reassessment for those six years. Nowhere the Hon'ble Court had held that the assessment or reassessment as contemplated in this section has to be based upon incriminating materials found during search. It is settled law -that in absence of jurisdictional High Court decision, decisions from the other Hon'ble High Courts are binding upon the Tribunal.
It is also settled law that when language of the Act is plain and simple there is no requirement of any interpolation therein. Furthermore, as held by the Hon'ble apex Court in the case of Smt. Tarulata Shyam & Ors. v. CIT [1977 (4) TMI 3 - SUPREME COURT], casus omissus need not be supplied by Courts. Hence, we respectfully following the precedent as above, uphold the order of the CIT(A) on this issue.
Computation of capital gains - depreciable assets - In our opinion, the present case clearly falls under the ken of s. 50. It is not disputed that this case pertains to capital gains on depreciable assets, where all fixed assets have been sold. Sec. 41(2) deals with such assets which are sold, discarded, demolished or destroyed. However, s. 50 has been captioned as special provision for computation of capital gains on depreciable assets and encompasses cases where block of assets ceases to exist.
It is settled law that when language of the Act is plain and simple there is no requirement of any interpolation therein. Furthermore, as held by the Hon'ble apex Court in the case of Smt Tarulata Shyam & Ors. v. CIT [1977 (4) TMI 3 - SUPREME COURT], casus omissus need not be supplied by Courts. Hence, on a finding that the present case falls under the realm of 'special provisions of s. 50', we uphold the order of the CIT(A) on this issue.
Further, the plea of the assessee that unabsorbed depreciation of AY 1997-98 to 2000-01 ought to have been considered as part of depreciation for AY 2005-06 is not tenable. It would be relevant to refer to the provisions of sub-s. (2) of s. 32(2) as amended by the Finance (No. 2) Act, 1996 w.e.f. 1st April, 1997 - It clear that the adjustment has been subject to sub-s. (2) of s. 32 hence this section also does not mandate adjustment of brought forward depreciation against the capital gains. Hence, we affirm the order of the learned CIT(A) on this issue.
We further find that the CIT(A) has rightly held that an identical issue was found to have been adjudicated by the Tribunal by relying on the judgment of the Hon'ble Supreme Court in the case of CIT v. Artex Manufacturing Co. [1997 (7) TMI 7 - SUPREME COURT], held that in a case where itemized sale of assets and liabilities of an undertaking takes place, the nomenclature of "slump sale" cannot be assigned thereto and that in such a case short-term capital gain is to be computed in accordance with the provisions of s. 50. The facts of the present case also indicate that assessee company sold its fixed assets and goodwill for separate values. No current asset or liability was transferred. Hence the ratio from these decisions as above will apply.
Claim relating to advances and bad debts written off - CIT(A) held that assessee could not furnish documentary evidence to establish their irrecoverability - HELD THAT:- It is clear that Hon'ble jurisdictional High Court in CIT vs. Brilliant Tutorials (P) Ltd.[2007 (1) TMI 147 - MADRAS HIGH COURT] was of the opinion that even after the amendment, an honest judgment has to be made as to whether the amount involved can be recovered or not.
It is settled law that decision of Hon'ble jurisdictional High Court is binding upon the Tribunal. When assessee had not furnished necessary particulars of the debt as required by the lower authorities, a judgment in this regard cannot be made. Hence, in the interest of justice, we remit this issue to the file of the AO to give the assessee an opportunity to provide the necessary details and to prove that the judgment to write off these amounts was an honest one.
In the result, this appeal by the assessee is partly allowed for statistical purposes.
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2009 (1) TMI 856
Addition on undisclosed income - Rejection of books of account - survey action u/s.133A - difference in the amount surrendered by the assessee during the course of survey and the amount shown in the return of income.
The main issue is about the deletion of addition of ₹ 28 85 lakhs which was made by the Assessing Officer on the ground that the assessee had not offered such amount in the return of income even though it was admitted at the time of survey.
HELD THAT:- In our considered opinion the books of account of the assessee cannot be held to be properly maintained in view of the fact that the survey transpired the discrepancy in the stock as per the books of account and that found on physical verification. The books of account are said to be properly maintained when correct income can be deduced there from. It is not only the arithmetical inaccuracy in the books of account which would call for the resorting to the provisions of section 145(3). Obviously in the face of the fact that the stock physically found was not tallying with the books of account, in our considered opinion it cannot be said that the books were properly maintained. We therefore, overturn the finding given by the ld. CIT (A) on this issue.
Going by the verdict of the two Hon'ble High Courts i.e. Paul Mathew & Sons vs. CIT [2003 (2) TMI 25 - KERALA HIGH COURT], CIT Vs. S. Khader Khan Son [2007 (7) TMI 182 - MADRAS HIGH COURT] and the position reaffirmed by the CBDT through its Circular, it becomes abundantly clear that no addition can be made or sustained simply on the basis of statement recorded at the time of Survey’ search. In order to make an addition on the basis of surrender during search or survey, it is sine qua non that there should be some other material to co-relate the undisclosed income with such statement.
We find that only to the extent of ₹ 21.14 lakhs, there is a material to co-relate with the admission, representing the excess stock found at the lime of survey. Evidently the surrender made by the assessee at the time of survey to that extent and offered for taxation in the return of income is in order - But insofar as the amount in dispute to the tune of ₹ 28.85 lakhs is concerned we observe that such surrender was specifically made "Towards any other discrepancy", There is no mention in the assessment order of any such discrepancy found as a result of survey throwing light on the undisclosed income. Even the ld D.R. could not point out any material showing the existence of undisclosed income earned by the assessee which was unearthed during the course of survey. There is nothing on record which could co-relate such additional income offered by the assessee during the course of survey with any other discrepancy.
Under these circumstances we are of the considered opinion that there is no basis for sustaining the addition in question. In the light of the foregoing discussion, we hold that the view taken by CIT (A) is unimpeachable, which is hereby upheld.
In the result, the appeal is dismissed.
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2009 (1) TMI 855
Addition u/s. 68 - Bogus purchases - Tribunal upheld the order of the CIT (A) deleting the addition made by AO - revenue contended that order of the Tribunal on the ground that the deletion of addition was perverse - HELD THAT:- Tribunal made a particular note of the fact that the statement of Sh. Ashok Kumar who is the brother of Sh. T.R. Chadda, the source from which the revenue had received information about bogus purchases by the assessee had evidently made a statement on 26-2-2002 admitting therein that he was carrying on the business of issuing bogus accommodation bills on commission basis with the assessee; which was not put to the assessee, for rebuttal or cross-examination.
Ld counsel for the revenue had laid great stress on the fact that the Department had carried out investigation which revealed that purchases have been made from non-existent parties and this was established by virtue of the fact that inquiries with the banks of the suppliers had revealed that they were operated by Sh. Ashok Kumar, who was the brother of Sh. T.R. Chadda or his employees.
We note that this aspect of the matter was obviously not put to the assessee as this was not part of the report which the inspector had prepared for the perusal of AO. Therefore, this submission of the counsel for the revenue cannot in our view take his case any further.
As a matter of fact, CIT(A) orders the evidence regarding Sh. T.R. Chadda’s operation collected by the investigating wing was not even available with AO.
In view of the findings of fact returned by two authorities below which are not perverse, no question of law, much less a substantial question of law arises for our consideration. Appeal is dismissed.
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2009 (1) TMI 854
Rejection of books of accounts - Invoking the provisions of Section 145(3) - estimating the sales and G.P rate - Tribunal has upheld the order passed by the CIT(A) restricting the enhanced sales - assessee had declared GP rate of 25.95 per cent in the AY1995-96, Tribunal held that the same GP rate should be applied to the assessment year in question as well.
Whether the Tribunal was justified in confirming the finding of ld CIT(A) ignoring the fact and finding given by the AO that purchase bill of marble blocks showed no weight or measurement and no stock register was maintained and by considering the comparable case of Anil Marbles (P) Ltd., the GP rate 32.12 per cent taken and made addition? - HELD THAT:- It is not the law that books of account of assessee having been rejected as unreliable u/s.145(3), the sales returned by the assessee must necessarily be rejected and such sales should be estimated at higher figure than returned by the assessee. Even after, the rejection of the books of account the AO is under obligation to determine as to whether the sales as returned by the assessee should be accepted or higher sales should be estimated. The estimated sales must be determined fairly on the basis of relevant material on record.
As noticed by CIT(A), while determining the estimated sales AO had not considered the relevant aspects. Therefore, the estimated sales determined by the CIT(A) appear to be just and reasonable.
It is to be noticed that as in the case of AKJ Granites (P) Ltd. [2007 (4) TMI 196 - RAJASTHAN HIGH COURT], the CIT(A) has found that the case of M/s Anil Marbles was not comparable case for the purpose of lifting the GP rate to be applied to the case of the assessee inasmuch as while adopting the said GP rate, the AO has not considered the investments, locality, year of establishment of business, manpower utilized, availability of raw material etc. of both the cases. The Tribunal while determining the GP rate as 25.95 per cent has taken into consideration the GP rate declared by the assessee during the AY 1995-96, which undoubtedly is relevant consideration.
Moreover, as laid down by this Court in AKJ Granites (P) Ltd. (supra), the best judgment itself is based on estimate and cannot be scaled at exactitude. Thus, in our considered opinion, the GP rate adopted by the Tribunal as aforesaid also cannot be faulted with.
For the aforementioned reasons, we answer the substantial question framed by this Court as aforesaid in favour of the assessee and against the Revenue.
In the result, the appeal fails, it is hereby dismissed.
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2009 (1) TMI 853
Whether it is not a case where the appellants had given a go-by to the physically ability test?
Whether the procedure adopted for selection was illegal?
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2009 (1) TMI 852
Furnace oil - interpretation of statute - amendment dated 15-9-98 to Notification No. 1/95 - benefit of duty free utilisation - the decision in the case of JAYANT AGRO ORGANICS LTD. Versus COMMISSIONER OF CUS. & C. EX., VADODARA [2003 (9) TMI 133 - CESTAT, MUMBAI] contested - Held that: - the decision in the above case upheld - appeal dismissed.
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2009 (1) TMI 851
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... ... ..... 19 file a Return and simultaneously seek reasons for issuance of the impugned Notices. The Assessing Officer thereupon shall grant an opportunity to the Petitioners to be heard and thereafter decide objections, if any, filed by the Petitioners by a speaking order including the preliminary issue of jurisdiction. Mr. Sanjeev Sabharwal, learned counsel appearing for the Revenue, states that this sequence of events shall be meticulously followed. The Petitions are disposed of in the aforesaid terms.
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2009 (1) TMI 850
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... ... ..... 2007 (220) E.L.T. 289 (T) - Vandevi Texturisers P. Ltd. v. CCE (b) CESTAT Order No. A/2092/WZB/Ahd/2007, dated 16-8-2007 2009 (234) E.L.T. 506 (Tri.) in the case of M/s. Angana Textiles Pvt. Ltd. (c) CESTAT Order No. A/460-461/WZB/Ahd/2008, 4-3-2008 in the case of M/s. Indian Polyfins Ltd. & M/s. Prime Furnishing Pvt. Ltd., Surat. (d) CESTAT Order No. A/1429-1430/WZB/Ahd/2007, dated 8-6-2007 in the case of M/s. Amitex Silk Mills Pvt. Ltd. (e) 2008 (222) E.L.T. 376 (T) - Sarla Poly Ltd. v. CCE (f) 2008 (87 RLT 31 (CESTAT) 2009 (236) E.L.T. 199 (Tribunal) - Goyal Industries v. CCE. 3. I find the issue, that no duty is required to be paid on the raw materials used in the finished products sold by the 100 EOUs in domestic tariff area. The issue is no more res integra and the decisions cited by the Willingdon Associates on behalf of the respondents, are relevant. Therefore, the appeal filed by the Revenue has no merits and accordingly, rejected. (Pronounced in the Court)
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2009 (1) TMI 849
Refund claimed of the amount deposited by the petitioners under threat of arrest - petitioner pray for not taking any coercive action of arrest or detention - the decision in the case of CENTURY METAL RECYCLING PVT. LTD. Versus UNION OF INDIA [2008 (10) TMI 96 - PUNJAB AND HARYANA HIGH COURT] contested where it was held that unless there is assessment and demand, amount deposited cannot be appropriated, detention of goods for indefinite period is not justified - Held that: - the decision in the above case upheld - Subject to granting liberty to the petitioners to issue additional show cause notice, the special leave petition is dismissed.
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2009 (1) TMI 848
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... ... ..... nnot be more than the credit of duty available to them on the aluminium ingots. Hence, we are of the view that it is a revenue neutral situation in any case. As such, we set aside the impugned order since the appellants have not taken more credit than what was due to them in respect of duty paid on the aluminium ingots. The appeal is allowed.” We, therefore, find no reason to interfere with the order so passed by the learned Tribunal. In our considered opinion, there is no illegality or irregularity in the said order and further no case has been made out by the appellant to admit this appeal on the given facts. The appeal is, therefore, dismissed. In view of the above, the application is also dismissed on the above terms. All parties concerned are to act on a xerox signed copy of the minutes of this order on the usual undertakings. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2009 (1) TMI 847
DEPB benefit - Whether the DEPB's obtained by fraud, collusion, willful mis-statement and suppression of facts by the exporter are non-est and void ab-initio?
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2009 (1) TMI 846
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... ... ..... true that the details of suppression has detected by the Department as per the letter dated 13.7.2007 issued by the Chief Engineer, KSEB. The said letter received by the department only on 27.7.2007. On the very same day a revised notice under Section 24(1) of the VAT Act was issued. The order under Section 67(1) of the Act was actually passed on 1.8.2008. In this context, it is noted that there is only 3 days delay in passing the order as per Section 67(1) of the Act." 2. Therefore, it is not in dispute that the order is passed beyond the time. There is no case also that extension of time was granted by the Deputy Commissioner. In such circumstances, it is patent that the action of imposing penalty vide Ext.P2 is palpably illegal and it is beyond time. Accordingly, the Writ Petition is only to be allowed and I do so and quash Ext.P2. I make it clear that this will be without prejudice to any other action which can be taken in accordance with law against the petitioner.
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