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Showing 81 to 100 of 731 Records
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2009 (11) TMI 950
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... ... ..... s were made by the assessee through its branch office situated in the USA to the foreign agents. The payments were made directly by the branch office situated outside India. It is not the case of the Revenue that the payments were made from any office situated in India. It is also not on record that the foreign agents have any permanent establishment in India. In this factual situation, the payments made by the branch office of the assessee situated outside India to agents outside the country may not fall within the provisions of sec. 195(1). Therefore, the assessee may not be required to deduct tax under sec. 195(1). Therefore, in our opinion, the disallowance made by the AO was not justified. The CIT (A) has rightly deleted the addition. In view of the above discussion, we do not find any infirmity in the order of the lower authority. Accordingly, the same is confirmed. 5. In the result, the appeal of the Revenue stands dismissed. Order pronounced in the Court on 20-11-09.
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2009 (11) TMI 949
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... ... ..... ata communication link made by the company in SOFTEX from the Software Technology Park of India alongwith purchase orders made by the customers, confirmation of the same, invoice raised to clients and foreign inward remittance certificates from banks confirming receipt of money in the form of foreign exchange were furnished. Certificate regarding qualification of both the Directors was also furnished. The assessee-company has made genuine exports, earned foreign exchange, which is not doubted by any other authorities except the A.O. Keeping in view the totality of the facts and circumstances of the case, in our opinion, the Learned Commissioner of Income Tax(Appeals) has given cogent reason in directing the A.O. to allow the exemption under section 10A of the Income Tax Act, 1961. We, therefore, inclined to uphold the order of Learned Commissioner of Income Tax(Appeals). 9. In the result, the appeal of the Revenue is dismissed. The Order pronounced in the Court on 13.11.2009
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2009 (11) TMI 948
Determination of capital gain on sale of land - nature of land - adoption of the stated consideration as the full value of consideration - AO rejecting the sale consideration stated in the registered sale deed because the other piece of land measuring 17 Kanal 18 Maria owned by the assessee has been sold for a much higher price - assessee argued that AO did not have the jurisdiction to disregard the actual consideration declared by the assessee in the registered sale deed - HELD THAT:- In our considered opinion, the action of the AO is not in consonance with the legal position - As decided in a later decision in the case of K.P. Varghese [1981 (9) TMI 1 - SUPREME COURT] held that a mere difference between the market value and the consideration stated in the sale deed does not permit the AO to assume a higher sale consideration for the purposes of computing capital gains.
We find that the consideration stated in the registered sale deed has been disregarded by the AO without showing that the assessee has received more than what is declared or disclosed by him as the consideration.
Even from the perusal of the assessment order, we find no material or evidence brought out by the AO which could justify the burden cast on the Revenue to show that the assessee has received more than what is declared or disclosed by him as consideration in the sale deed. Under such circumstances, therefore, we are in agreement with the conclusion drawn by the CIT(A) that no addition is merited in this case by disregarding the "full value of the consideration" declared by the assessee. The order of the C1T(A) deleting the addition on account of long-term capital gain on sale of 4 Kanal 10 Maria of land is hereby affirmed. Accordingly, the appeal of the Revenue is dismissed.
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2009 (11) TMI 947
Penalty u/r 15(1) of CCR - imposition on the ground of non-filing of ER-6 returns prescribed under Rule 9A of CCR, 2004 by the due date - Held that: - Rule 15 of CCR under which the penalty for this contravention of Rule 9A has been imposed, does not provide for imposition of penalty for offences other than taking the Cenvat credit in respect of inputs or capital goods wrongly or in contravention of provisions of Cenvat Credit Rules. This rule does not provide penalty for any other offence and other than Rule 15 - In fact in Cenvat Credit Rule,2002, there is no provision analogous to Rule 27 of Cenvat Credit Rule which provide for imposition of penalty in the cases for contravention where no other penalty prescribed in the CER, 2002 or in the Act.
The contravention for which the penalty has been imposed, is only a procedural violation and subsequently, the required return had been filed. In view of these circumstances, the impugned order imposing penalty of ₹ 50,000/- on the appellant under Rule 15 of CCR, 2004 is not sustainable - appeal allowed - decided in favor of appellant.
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2009 (11) TMI 946
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... ... ..... erned Municipal Corporation to initiate such action, as it deems fit in accordance with law by approaching the Jurisdictional Courts/Tribunal for final and interim reliefs. (iv) The municipal corporations shall not resort to coercive steps (such as stoppage of supplies / services) nor resort to revenue recovery proceedings for recovery of any service charge dues from Union of India or its departments. (v) The service charges payable by Union of India will under no circumstances be more than the service charges paid by State Government for its properties. Wherever exemptions or concessions are granted to the properties belonging to the State Government, the same shall also apply to the properties of Union of India. (vi) If the Railways does not to abide by the four general circulars of the Union of India dated 10.5.1954, 29.3.1967, 28.5.1976 and 26.8.1986 and the general consensus set out above, it is open to municipal corporation to take such action as is permissible in law.
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2009 (11) TMI 945
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... ... ..... of the above, we direct the AO to delete the notional interest in all these three years. 6. The only remaining issue in the appeal filed for assessment year 2003-04 relates to the disallowance of bad debts for the reason that the assessee did not prove that the debt has really become bad. The law is now well settled now for claiming a debt as a bad debt u/s 36(1)(vii)., i.e., it is enough if the debt is written off in the accounts of the assessee. In the year under consideration, the AO is otherwise satisfied with the conditions prescribed for the claim of bad debt. There is no dispute with regard to the fact that the assessee has written off the debt in his accounts. Hence the claim of bad debt made by the assessee is in accordance with the law and settled principles. Accordingly, we direct the AO to delete the said disallowance. 7. In the result, all the three appeals filed by the assessee are allowed for statistical purposes. Pronounced accordingly on 11th November, 2009
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2009 (11) TMI 944
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... ... ..... ll be confined to only to the profits to the residential segment of the overall project. (c) The limit on commercial use of built-up area as prescribed by cl. (d) of s. 80-IB(10) has no retrospective application, and it applies only w.e.f. the asst. yr. 2005-06.” 4. In view of the above decision as all the facts required to adjudicate the issue under appeal is not available on record, in our considered view, it shall be just and fair to restore the issue back to the file of the Learned Assessing Officer for adjudication of the same afresh in accordance with the law and in the light of the decision of the Special Bench of the Tribunal in the aforesaid discussed case after allowing reasonable opportunity of hearing to the assessee. We order accordingly. Thus, the grounds of appeal of assessee are allowed for statistical purposes. 5 In the result, the appeal of the Assessee is allowed for statistical purposes. Order signed, dated and pronounced in the Court on 30/11/2009.
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2009 (11) TMI 943
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... ... ..... as raised an objection that the value adopted or assessed by the stamp valuation authority exceeds the fair market value of the property. Since the assessee in the instant case has objected before the Assessing Officer in writing for substituting the value adopted by the stamp valuation authority, therefore, in our opinion the Assessing Officer should have referred the matter to the DVO as per the provisions of subsection (2) of section 50C of the Act. We, therefore, deem it proper to restore the matter back to the file of the Assessing Officer with a direction to refer the matter to the DVO and decide the issue afresh as per law. The Assessing Officer shall give adequate opportunity of being heard to the assessee while deciding the issue. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. 9. In the result, the appeal filed by the se is allowed for statistical purposes. Order pronounced on 30th November, 2009.
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2009 (11) TMI 942
Entitlement to get custody of the entire live stock as in illegal custody - Commission of offences punishable u/s 279 IPC, Section 11(1)(d) of the Act and Sections 5, 6 and 8 of the Bombay Animal Preservation Act, 1954 - Validity of order passed by the Additional Chief Judicial Magistrate refusing to grant custody of goats and sheep to the respondent Nos. 1 to 6 - Accused stating that while he was driving mini truck carrying the cattle from Palanpur to Deesa at the instance of the appellant No. 1, he had lost control of the vehicle due to overweight of cattle as a result of which the truck had turned on its side killing six cattle and causing damage to the said vehicle. The respondent Nos. 1 to 6, claiming to be the owners of goats and sheep, filed an application u/s 451 and 457 of the CrPC, 1973 for custody of the cattle.
HELD THAT:- This Court notices with surprise that though the respondent Nos. 1 to 6 herein, who were original petitioners before the High Court, are not accused of commission of any offence even remotely, even then the ld Single Judge of the High Court has convicted them u/s 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960 and imposed a fine of ₹ 50/- on each of them. It hardly needs to be emphasized that those, who are not even remotely alleged to have committed offence/offences, cannot be convicted at all either at the trial or while exercising so called wide jurisdiction under Article 226 of the Constitution. The four accused named above were not parties to the petition filed by the respondent Nos. 1 to 6 nor they had approached the High Court for custody of goats and sheep seized. Therefore, conviction of the respondent Nos. 1 to 6 u/s 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960 and imposition of fine of ₹ 50/- on each of them will have to be regarded as without jurisdiction, unauthorized, unwarranted and illegal and will have to be set aside.
A bare glance at the prayers made makes it clear beyond pale of doubt that the respondent Nos. 1 to 6 had not prayed that the appellant No. 1 be directed to pay compensation and cost to each of them. The grievance made by the appellant No. 1 in the instant appeal is that without putting the parties to notice that the Court was inclined to determine and direct the appellant No. 1 to pay by way of compensation and cost, the ld Single Judge has determined the amount of compensation and cost at ₹ 75,000/- and directed him to pay such amount to each of the respondent Nos. 1 to 6.
It is relevant to notice that the High Court was not exercising powers under Article 226 of the Constitution suo motu but was examining the validity of order passed by the Additional Chief Judicial Magistrate refusing to grant custody of goats and sheep to the respondent Nos. 1 to 6, in the Special Criminal Application, which was filed by them under Article 226 of the Constitution
In the instant case the assertion made by the appellant No. 1 is that he was handed over custody of goats and sheep by the police after registration of FIR seems to be that the appellant No. 1 had taken possession of the live stock and trucks illegally before the FIR was lodged and had acted in a high handed manner. The dispute whether appellant No. 1 was handed over custody of goats and sheep after filing of the complaint or whether he had obtained custody of goats and sheep illegally before the complaint was lodged, will have to be adjudicated upon evidence to be lead by the parties. Such a highly contentious dispute cannot and could not be resolved in a petition under Article 226 of the Constitution.
Having regard to the totality of the facts, this Court is of the firm opinion that there was no justification at all in directing the appellant No. 1 to pay a sum of ₹ 75,000/- towards compensation and cost to each of the respondent Nos. 1 to 6 and to pay to the respondent No. 8 herein the cost of maintenance and treatment of the animals in question on behalf of the respondent Nos. 1 to 6. Therefore, this direction is also liable to be set aside.
As this Court is inclined to set aside most of the directions given by the ld Single Judge in the impugned judgment, the direction to serve a copy of the judgment on the appellant No. 2, i.e., Animal Welfare Board of India becomes redundant and, therefore, the same is also liable to be set aside.
Whether respondent Nos. 1 to 6 are entitled to relief of interim custody of goats and sheep seized pursuant to filing of complaint registered with Police Station? - Though the respondent No. 8 has, by filing counter reply, pointed out that the officials of Panjarapole at Patan are taking best care of the goats and sheep seized in the instant case, this Court finds that keeping the goats and sheep in the custody of respondent No. 8 would serve purpose of none.
Admittedly, the respondent Nos. 1 to 6 by vocation trade in goats and sheep. Probably a period of more that one and half years has elapsed by this time and by production of goats and sheep seized before the court, the prosecution cannot prove that they were subjected to cruelty by the accused because no marks of cruelty would be found by this time. The trade in which respondent Nos. 1 to 6 are engaged, is not prohibited by any law. On the facts and in the circumstances of the case this Court is of the opinion that respondent Nos. 1 to 6 would be entitled to interim custody of goats and sheep seized in the case during the pendency of the trial, of course, subject to certain conditions.
For the foregoing reasons the appeal partly succeeds. The Special Criminal Application is accepted in part by directing the respondent No. 8 to hand over custody of goats and sheep seized in the instant case to the respondent Nos. 1 to 6, who are owners thereof, in such proportion as the original number of seized animals bears to the number of surviving animals, on each of them depositing a sum of rupees fifty thousand with the trial court and each furnishing two sureties of ₹ 50,000/- to the satisfaction of the trial court.
The respondent Nos. 1 to 6 be handed over custody of goats and sheep in the presence of Police Officer in-charge of the Police Station at Patan, who shall supervise delivery of the animals to the respondent Nos. 1 to 6 in such manner that the animals are not subjected to further cruelty in their transportation within the area of his jurisdiction. The respondent Nos. 1 to 6 are directed to see that no cruelty is meted out to the surviving animals and submit an undertaking to that effect to the trial court within a period of two weeks from today.
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2009 (11) TMI 941
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... ... ..... king reference to the facts of other connected cases. Thus, in view of the above, we set aside the judgment and order of the High Court in Writ Petition No.426/06 only to the extent of the last part of the order, namely, "if it is found that promotion of a Sub-Inspector was not considered before consideration of Sub-Inspector placed below him in the seniority list, his promotion shall be considered with effect from the date of promotion of his junior in case he had fulfilled minimum eligibility criteria for promotion at the time of consideration of his junior". The first part of the order contained in paragraph 9 as already explained hereinabove has attained finality, thus, does not require any interference. The High Court is requested to decide the case to that extent only taking into consideration the law as explained hereinabove including the issue of delay and the facts involved in that case expeditiously. 35. The appeals stand disposed of accordingly. No cost.
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2009 (11) TMI 940
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... ... ..... narayan, Satyanarayan, learned Counsel for the respondent-assessee submits that the learned Single judge has very justifiable levied cost and the matter of this nature does not warrant interference in a writ appeal. 5. While wherein, even therefore an appeal of this nature is tenable under Section 4 of the Act, even otherwise, we find not much scope for interference, particularly, as levy of cost, which is always in the discretion of the Court, is not a matter warranting interference in the exercise of appellate jurisdiction and unless and until in the name of discretion, some totally unacceptable, arbitrary action is let loose on the person complaining, we do not find such a situation in the present order or any part of the order and therefore, would not even otherwise interfere in this appeal and it is for this reasons, we do not propose to examine further the merits of the applications, but would not only dismiss the appeal, but also the applications. Ordered accordingly.
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2009 (11) TMI 939
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... ... ..... having reg to the issue raised and argued by the Petitioner as to the authority of the First Respondent to pass an order. o p /o p Consequently, the Writ Petition is allowed, thereby the order impugned is quashed. Learned Counsel for the Petitioner pointed out that in W.P.M.P. No. 1616 of 2005 in this Writ Petition by the order dated 20th January 2005, this Court while granting interim prayer, directed the Petitioner to deposit a sum of Rs. One lakh with the Third Respondent within a period of four weeks from the date of receipt of a copy of that order, failing which the injunction granted will get automatically vacated. o p /o p 9. In view of the order passed allowing the Writ Petition, the amount deposited by the Petitioner, hence, has to be refunded to the Petitioner. Consequently, the Third Respondent is directed to refund the amount deposited pursuant to the directions of this Court to the Petitioner. No costs. Consequently, W.P.M.P. No. 1616 of 2005 is closed. o p /o p
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2009 (11) TMI 938
Rejection of books - estimation of income - allocation of expenditure between civil work and consultancy work - assessee was engaged in both as a consultant and contractor for setting up of acqua farms for various parties - HELD THAT:- Tribunal, noticing that separate accounts are not maintained, treated the expenditure as attributable to both civil work as well as the consultancy work and accordingly allotted ₹ 2 lakhs towards civil work and disallowed only so much of the balance of ₹ 2,01,414 pertaining to consultancy work. Counsel for the assessee though contended that the disallowance is arbitrary could not establish before us that the accounts are correct and complete. Details of expenditure and the purpose for which it was spent, were also not available on record. Therefore, in our view, the Tribunal rightly disallowed a sum of ₹ 2 lakhs towards civil work and allowed at least 50 per cent of the claim attributable to consultancy work. We find, no substantial question of law involved in the finding of the Tribunal. Therefore, we answer this question in favour of the Revenue and against the assessee.
Accrual of income - Amount received for execution of the work - whether the amount received by the assessee for execution of the work, if materialised, can be treated as income? - HELD THAT:- The assessee has no case that the amount is repaid or repayable. The Tribunal rightly found that it is business income assessable u/s 28(i)/(iv) of the IT Act. We find no justification to interfere with the order of the Tribunal, We therefore answer this question also against the assessee. Consequently, appeal for the year 1993-94 will stand dismissed.
Estimation of income from civil work at 8 per cent of the total contract receipts - In this case, we find the order of the Tribunal is quite favourable to the assessee because as against the estimation of 10 per cent made by the AO, the Tribunal has reduced the estimation to 8 per cent of the total works turnover. There is logic and reason in estimation of income from civil construction work at 8 per cent because under the presumptive scheme, s. 44AD provides for assessment of income on civil construction work at 8 per cent where the contractor's turnover is below ₹ 40 lakhs. Even though counsel for the appellant contended that s. 44AD has no application as the contract amount is above ₹ 40 lakhs, we do not think, there is justification to interfere with the order of the Tribunal because in the first place, the Tribunal has granted part relief to the assessee by reducing the estimated income from 10 per cent to 8 per cent.
Secondly, what the Tribunal has done, is only to follow s. 44AD as a guideline for estimation of income from civil work. We, therefore, find no justification to interfere with this part of the order of the Tribunal. It is worthwhile to note that while confirming the estimation of income at reduced percentage, the Tribunal cancelled separate addition made by the AO under the head 'Other income' which is a huge amount of ₹ 15,44,353. We are of the view that after getting deletion of addition of ₹ 15,44,353, the assessee cannot canvass for modification of other part of the order of the Tribunal confirming estimation of income at the reduced percentage of 8 per cent which is a reason for deleting the separate addition without considering it independently on merit.
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2009 (11) TMI 937
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... ... ..... ompany to have knowledge about the Act. Based on these observations the Tribunal has come to the conclusion that if the assessee has acted on the advise given by the Chartered Accountant it cannot be said that the assessee has made a false claim. The Tribunal has also relied on the decision of this Court in the case of BTX Chemical Pvt. Ltd., Vs. CIT 288 ITR 196 (Gu j . ) wherein it is held that the assessee is bound to rely on the report of Chartered Accountant. 6. Considering all the above aspects of the matter, the Tribunal has deleted the penalty imposed by the Assessing Officer under Section 271(1)(c) of the Act. We are in complete agreement with the finding recorded by the Tribunal and one of the view that the penalty levied by the Assessing Officer in no way is hold to be justified. Since there being a finding of fact by the Tribunal on the basis of evidence, no substantial question of law arises out of the order of the Tribunal. 7. We, therefore, dismiss this Appeal.
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2009 (11) TMI 936
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... ... ..... umar,Adv., Mr. Rajiv Nanda,Adv., Mr. B.V. Balaram Das,Adv. O R D E R Heard learned counsel for the petitioner. Delay condoned. The special leave petition is dismissed.
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2009 (11) TMI 935
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... ... ..... case, however, the Tribunal has not undertaken any such exercise, viz., on what basis 25 of the royalty is to be capitalized. The Tribunal has simply followed the judgment in Southern Switch Gear Ltd. (supra) for this purpose without appreciating the aforesaid feature of the said case. It has not noticed the subtle distinction that in the present case, the AO had treated the entire expenditure as capital expenditure. If one goes by the judgment of the Madras High Court, it cannot be disputed that the benefit is of enduring nature and therefore, at least, part thereof has to be capitalized. 12. We are, therefore, of the opinion that while apportioning the sum between capital and revenue expenditure, the Tribunal should have given the rationale for coming to such a conclusion. As that has not been done, we set aside the impugned order and remit the case back to the Tribunal for discussing this aspect specifically. Parties shall appear before the Tribunal on December 21, 2009.
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2009 (11) TMI 934
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... ... ..... /2009 2551/2009 , 2552/2009 , 2553/2009 , 2554/2009 , 2555/2009 , 2556/2009 ,2557/2009 , 2558/2009 , 2559/2009 For the Petitioner Shri Vimal Gupta For the Respondents Shri F.V. Irani with Shri Atul K. Jasani ORDER P.C. 1. Learned counsel for the appellant and learned counsel for the respondents have jointly tendered minutes of order. The same are taken on record and marked X’ for identification. 2. All these appeals are disposed of in terms of minutes of order with no order as to costs.
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2009 (11) TMI 933
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... ... ..... nce to 50 of the expenditure on ad hoc basis. There is no rational to hold 50 of expenses towards entertainment and balance 50 towards staff welfare. We are, therefore, of the view that the Digital Day Celebration expenses and conference expenses incurred for benefit of the employees cannot be classified as entertainment expenditure coming u/s 37(2A) and accordingly, we delete the addition made on the above issues and direct the AO to allow the entire expenditure incurred on Digital Day Celebration and conference expenses". 16.1 Nothing contrary was brought to our knowledge on behalf of the revenue. Facts being same, so following the same reasoning we are not inclined to interfere with the finding of CIT(A), who has granted relief in respect of write off of slow moving items of assessee 's business. The same is upheld. 17. In the result, all the appeals of assessee and the revenue are partly allowed as indicated above. Pronounced in the open court on the 17.11.2009.
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2009 (11) TMI 932
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... ... ..... , would not be attracted to the facts of the case. We are also unable to accept Mr. Ghosh's submissions that merely because DHD(J) had not been declared as an "unlawful association" when the petitioner was arrested, the said organization could not have indulged in terrorist acts or that the petitioner could not have had knowledge of such activities. Accordingly, Mr. Ghosh's submissions regarding the grant of statutory bail have to be rejected since, in our view, the learned Sessions Judge (Special Court) had the jurisdiction to extend the time for completion of the investigation. 14. As far as Mr. Ghosh's second submission is concerned, the recovery of ₹ 4 lakhs from the petitioner's custody would require further investigation into the allegations made not only against the petitioner but the other accused persons as well. 15. We are not, therefore, inclined to entertain both the Special Leave Petitions and the same are, accordingly, dismissed.
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2009 (11) TMI 931
Classification of imported item - data projectors - classified under Tariff Item 8528 61 00 or under 8528 69 00? - benefit of exemption under N/N. 24/2005-Cus. dated 01.03.2005 - Held that: - when separate entries were created under heading 8528, they are appropriately covered under 8528 61 00 which is applicable to the projectors of a kind solely or principally used in an automatic data processing machine, instead of the residual entry of 8528 69 00.
India is a signatory to the Information Technology Agreement. The classification adopted by the Customs officers for these projectors has resulted in the frustration of the ITA in relation to these products. Thus, the object of the exemption N/N. 24/2005 - Cus. is frustrated. Consequently, Indias undertaking to the WTO is also annulled. Hence, the impugned order is not sustainable.
Appeal allowed - decided in favor of appellant.
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