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Showing 141 to 160 of 773 Records
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2009 (12) TMI 922
Quantum of redemption fine and penalty - Revenue's contention is that the margin of profit is 20 per cent to 22 per cent and thus, the redemption fine and penalty, are on the lower side - Held that: - the value was enhanced by the Department based on Chartered Engineer's Certificate. The Commissioner (Appeals) relied upon the Tribunal's decision in the case of Navpad Enterprises and Ors. [2008 (3) TMI 604 - CESTAT, BANGALORE] by which redemption fine and penalty of 10 per cent and 5 per cent, respectively were imposed - appeal dismissed - decided against Revenue.
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2009 (12) TMI 921
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... ... ..... ondents. Learned counsel for the respondents summits that petitioner has an alternative remedy to file a revision before the Central Government. Learned counsel for the petitioner admits that such a remedy is available to him. In this view of the matter, the writ petition is dismissed
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2009 (12) TMI 920
Whether the 'Scheme for Absorption of Researchers in CSIR Labs./Instts. 1997' should be implemented for absorption/regularization of Researchers who have put in 15 years or more of research in CSIR Labs/Instts?
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2009 (12) TMI 919
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... ... ..... btained by the appellant-assessee. 3. Heard the learned SDR Shri T.H. Rao appearing for the Department. 4. In the absence of required COD clearance, the appeal is dismissed as not maintainable. However, liberty is granted to the appellants to apply for restoration in the event of obtaining necessary COD clearance later on. (Dictated and pronounced in open court)
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2009 (12) TMI 918
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... ... ..... urt for de novo consideration in the light of the judgement in the case of Sri Mangayarkarasi Mills Private Limited (supra), which has been delivered only on 21st July, 2009. The High Court would also consider the tests laid down by this Court in the case of Commissioner of Income Tax vs. Saravana Spinning Mills Private Limited reported in (2007) 293 I.T.R. 201 and Commissioner of Income Tax Vs. Ramaraju Surgical Cotton Mills, reported in (2007) 294 I.T.R. 328, while disposing of this case on merits. We express no opinion on merits. Subject to what is stated herein, the appeal is allowed with no order as to costs." 4. Therefore, following the above judgment, at the consent of the counsel on either side, the matter is remitted back to the Commissioner of Income-tax (Appeals) to do the exercise as directed by the Supreme Court in the above said judgement (294 ITR 328). The appeals are disposed of accordingly. Consequently, the connected miscellaneous petitions are closed.
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2009 (12) TMI 917
Airport Service - user fee - The facts and circumstances of the case and the evidence clearly prove beyond doubt that the users fee collected is only for enhancing the revenue of the Airport and not for any service rendered to outgoing international passengers - the decision in the case of COMMISSIONER, CENTRAL EXCISE Versus COCHIN INTERNATIONAL AIRPORT LTD. [2009 (7) TMI 120 - KERALA HIGH COURT] contested, where it was held that no service tax is payable for the users fee collected by the respondent - Held that: - the decision in the above case upheld - SLP dismissed - decided against Revenue.
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2009 (12) TMI 916
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... ... ..... ting to file SLP before the Apex Court. 5. Having heard learned counsels appearing for the parties and having gone through the petitions, we are of the view that the issue involved in the present petitions is squarely covered by the decision of this Court in Special Civil Application No.9656 of 2008 and other cognate matters. In the said group of petitions, we have observed that levy of export duty on goods supplied from the domestic tariff area to the Special Economic Zone is not justified. We, therefore, took the view that the petitioners are not called upon to pay the export duty on movement of goods from domestic tariff area to Special Economic Zone Units or developers. 6. In the above view of the matter, the present petitions are accordingly allowed to the above extent. Rule is made absolute without any order as to costs. 7. On request being made by Mr. Champaneri, the operation, implementation and execution of this order is stayed for a period of four weeks from today.
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2009 (12) TMI 915
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... ... ..... irst and second grounds.” 13.There is no independent reasoning as to why the CIT (Appeals) is not justified in reducing the estimation of gross profit from ₹ 2,53,44,285/- to ₹ 9,57,432/-. There is also not much discussion as to why the gross profit is estimated at 2 . The Tribunal has also not considered as to whether two comparable cases referred to by the Assessing Officer are really comparable or are applicable to the facts of the present case. In this view of the matter, we quash and set aside the order passed by the Tribunal and remand the same to the Tribunal for deciding the appeal afresh and we direct the Tribunal to pass a speaking order dealing with the findings arrived at by the CIT (Appeals) and if the Tribunal were not in agreement with the findings of the CIT (Appeals), the reasons for such disagreement should specifically be reflected in the order that may be passed. 14.With this direction, this appeal stands allowed to the aforesaid extent.
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2009 (12) TMI 914
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... ... ..... By the impugned orders, the authorities below have rejected the claim on the ground that the goods were actually sent to Dubai whereas destination of the goods in shipping bill was Masco, Russia. Findings have been recorded by the authorities below that it was fraudulently done and the penalty was also levied on the petitioners. 3. Learned counsel for the petitioners could not point out any error in the impugned orders. 4. We find no merit in the writ petition. 5. The writ petition is dismissed accordingly.
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2009 (12) TMI 913
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... ... ..... f medicine in the course of treatment by the hospital attracts tax and consequently hospitals are liable for registration under the Sales Tax Act and for payment of tax. However, Government Pleader brought to our notice that irrespective of the outcome of the pending Writ Appeal, the issue in this case is covered by the Division Bench decision of this Court in COMTRUST EYE HOSPITAL V. ADDL. SALES TAX OFFICER, (2007) 1 K.L.T. 682 which is a Division Bench judgment. Following the decision of the Division Bench above referred, we dismiss the Writ Appeal. However, we give two weeks' time to the appellant to file statutory appeal or revision against assessment and penalty orders for settlement of disputes, if any, on other issues.
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2009 (12) TMI 912
Disallowance u/s 35D - fee paid to Registrar of Companies for increasing authorized share capital - HELD THAT:- This issue is squarely covered against the assessee by the decision of the Hon’ble Apex Court in the case of Punjab State Industrial Development Corporation Ltd. [1996 (12) TMI 6 - SUPREME COURT]. In this case it was held that amount paid by the company to ROC as filing for enhancement of capital base of company cannot be allowed as revenue expenditure. Respectfully following the precedent, we uphold the order of the ld. CIT(A) on this issue and decide the issue against the assessee.
Disallowance of expenditure on acquisition of fire extinguishers - Nature of expenses - CIT(A) confirm the disallowance upholding that the expenditure was capital in nature - HELD THAT:- We find that expenditure on fire extinguishers did not bring into existence any asset or an advantage which is enduring benefit of trade so as to be classified in capital field. It is meant to be utilized in the event of accident/occurring of any fire as a preventive measure.
What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessee’s trading operations or enabling the management and conduct of the assessee’s business to be carried on more effectively or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future.” Examining the present issue on the touchstone of above exposition, we do not see any reason why the expenditure should not be allowed as revenue expenditure - Decide the issue in favour of the assessee.
Expenditure for club services - CIT(A) upholding that the expenditure for club services as expenditure not for the purpose of business but is of personal nature - HELD THAT:- As we are of the opinion that use of club services for the promotion of business in the modern age cannot be denied. Further the expenditure in comparison with the turnover of the assessee is a very miniscule amount. For assessment year 2002-03 ld. CIT(A) himself deleted the half of the disallowance.
Furthermore the proposition that these expenditure incurred by the assessee company are personal in nature is not sustainable on the anvil of Sayaji Iron Engg and Company [2001 (7) TMI 70 - GUJARAT HIGH COURT]. In this case it was held that “when the vehicles belonging to assessee company are used by its directors for personal or other purposes, it would be wrong to hold that vehicles are personally used by company because a limited company by its very nature cannot have any ‘personal use’ of cars by directors.”
Advertisement and publicity expenses - nature of expenditure that provide benefit of enduring nature and need to be amortised over a period of 5 years and in rejecting the claim of the assessee that it is a revenue expenditure allowable in entirety in the current year itself - HELD THAT:- The nature of expenditure does not fall under the ambit of preliminary expenses as envisaged u/s 35D. When the expenditure was incurred and there is nexus between the expenditure and the assessee’s business, we do not see any reason whey the entire expenditure should not be allowed in full during the concerned year
The case law in Salora International [2008 (8) TMI 138 - DELHI HIGH COURT] supported the case that when expenditure has actually been incurred and there was direct nexus between the expenditure and assessee business, the expenditure has to be allowed in full and not deferred by spreading over certain number of years. Therefore, it is clear that it was assessee’s claim that certain expenditure on advertisement were actually expenditure u/s 35D. Hence, we set aside the orders of authorities below and decide the issue in favour of the assessee.
Disallowance on account of commission paid to Direct Selling Agents and stamping fee - Spreading over of expenses - as per AO assessee has been financing the hire purchase of vehicles and homes etc. and the period of such financing is ranging from less than one year to more than one year upto 5 years and in view of the fact that the financing is spread over a period of five years allowed only 1/3rd of this expenditure and disallowed 2/3rd thereof - HELD THAT:- Neither of the authorities below have disputed either to nature of services rendered by agents or how the liability to pay the commission is computed. It has also not disputed that how the brokerage is payable and is linked to what. The only case made out by the revenue is that expenditure should be spread over a certain period of time. In our opinion, there is no cogency in the case made out by the revenue. It is an accepted position that assessee’s treatment in its accounts books is not determinative of the actual nature of the transaction. It is also admitted that there is nexus between the expenditure and the assessee’s business. Under such circumstances, there is no reason why the expenditure incurred would not be allowed as a whole.
Thus we find that expenditure which have been made in the concerned years were paid to the selling agents for sourcing the customers from whom the assessee had generated the income by way of granting of loan finances. The amount paid as commission is not refundable in any circumstances. Undisputedly income in this regard has been accounted for in the current years also - we find that the expenditures on commission and stamping fee have to be allowed in full in the impugned assessment years as deferral of the same over a number of year is not sustainable.
Leasehold Improvement expenses - whether allowable revenue expenses? - As per AO in the earlier years also the assessee company has done lease hold improvements but has capitalized the same and claimed 10% deprecation on it - HELD THAT:- We find that the ld. CIT(A) has given a categorically finding that the assessee has duly produced all the necessary details and that the assessee has duly identified the capital portion of the expenditure incurred and the amount on the improvements expenses which were of revenue in nature. We also find that it is a settled law that powers and duties of the CIT(A) are co-terminus with that of AO. Hence, in our considered opinion, there is no need to interfere with the finding of the ld. CIT(A). Accordingly, we uphold the same.
In the result, the appeals filed by the assessee are allowed and appeals filed by the revenue are dismissed.
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2009 (12) TMI 911
Clandestine removal - forged copies of Central Excise invoices along with challans-cum-proforma invoices evidencing clearances of goods by the appellants - Held that: - It is a case where Department has failed to made out a case against the appellants with corroborative evidences, which could have been done by them easily by verifying the fact of clandestine removal from the transporters as well as buyers of the appellants - no investigation was done about the productions made in the appellant’s factory for excess production and its removal without payment of duty - appeal allowed - decided in favor of appellant.
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2009 (12) TMI 910
Smuggling - heroin - Section 67 of the NDPS Act - substantiating of statement of respondent - confiscation - penalty
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2009 (12) TMI 909
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... ... ..... er could not point out the aforesaid judgments of this court pleading ignorance for want of knowledge. We have noticed number of times in number of cases wherever she appears, either she is not ready with the matter or she is not able to articulate her submissions may be for want of legal knowledge. This Court had an occasion to bring this fact to the notice of the Higher Officers of the Department at Mumbai. On few occasions, we were compelled to summon the Officers of the Department to argue the matter. In most of the cases, for want of assistance, we found it difficult to do justice in the matter. Administration of justice needs assistance. We expect the Department and the Chairman of the CBDT to take corrective steps in the matter so as to enable this Court to do better justice between the parties. 7. The Prothonotary and Senior Master of this Court is directed to send a copy of this order to the Chief Commissioner of Income Tax and the Chairman, CBDT for further action.
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2009 (12) TMI 908
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... ... ..... ication is subject to tax only at four per cent. Since the item is not specifically covered by any of the entries or under the notification, we direct the Commissioner to clarify on the rate of tax on stainless steel fan hooks on an application to be filed by the appellant along with copy of this judgment, which the appellant is directed to do within ten days from the date of receipt of copy of this judgment. The assessing officer will modify the rate of tax in the assessment, if the Commissioner issues clarification on rate of tax at variance with the rate applied by the officer. There will be direction to the respondents not to recover the excess rate of tax assessed from the appellant for two months from now. The Commissioner is directed to pass orders on the clarification application within one month from the date of receipt of the application. Recovery thereafter will depend on the orders of the Commissioner in the clarification application to be filed by the appellant.
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2009 (12) TMI 907
Whether the KAT was justified in observing that the expression 'manufacturing unit' employed under section 5A of the Act should not be construed in strict sense?
Whether the Tribunal was justified in setting aside the levy of penalty imposed under section 5A(2) and (3) of the KST Act?
Held that:- In the facts and circumstances of the case, we find that the authorities were themselves under doubt as to the applicability or category under which respondent-assessee was to be categorized. Hence, we do not find that there has been any misdeclaration by the assessee in availing of the benefit of the notification. In these circumstances, we are of the opinion that substantial questions of law which have been framed hereinabove is with regard to categorizing the activity of the respondentassessee, we answer question No. 2 in favour of the assessee and against the Revenue.
In so far as question No. 1 as to whether the expression "manufacturing unit" employed under section 5A of the Act Revision petition is dismissed and question No. 1 is answered in favour of the Revenue
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2009 (12) TMI 906
Whether entry 17A in Part C of the Second Schedule as unconstitutional, discriminatory and violative of article 14 of the Constitution of India, so far as the coconut oil sold under the brand name, either in sachets or in bottles?
Held that:- The learned judge has not taken into account distinction between the hair oil and edible oil. Since this aspect has not been considered, we are of the view the learned judge has committed an error in granting a relief to the assessee in declaring the amendment as unconstitutional in violative of article 14 of the Constitution of India.
Considering the facts and background of the amendment brought in, we are of the view that whenever coconut oil is manufactured and sold as hair oil, the same would attract tax at higher rate of 15 per cent and 20 per cent as per the amendment brought to the Karnataka Sales Tax Act, and coconut oil sold as pure coconut oil, as a brand name would attract only four per cent as the same can be used as an edible oil not exclusively as a toilet articles. In view of this distinction, we allow this appeal.
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2009 (12) TMI 905
Whether the crane sold by the assessee is taxable at 16 per cent under entry 8 of Part F of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959 or at five per cent under entry 33 of Part C of the First Schedule?
Held that:- The hydraulic mobile crane cannot be encom-passed within entry 8 "lifts and hoists", which are only for the purpose of raising or lifting something to a higher position and the user would also know the way as stated above. Though specifically mobile crane has not been included, the phraseology used in entry 33 "similar varieties of machinery of which a mechanically propelled vehicle forms an integral part which is subsidiary to their main function" would definitely encompass with it mobile crane, if we read the provision in ejusdem generis principle. In our view, the Tribunal has taken a correct view with a clear and cogent finding. We do not find any irregularity in the finding of the Tribunal having regard to enumeration of goods stated in entry 33 of Part C of the First Schedule to the TNGST Act, during 1994-95. Appeal dismissed.
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2009 (12) TMI 904
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... ... ..... f the parties, had placed before this court, a decision of a Division Bench of this court, made in Indian Bank v. Commercial Tax Officer 2009 25 VST 187 2009 6 MLJ 659, wherein, it has been held as follows The State Government can claim priority of debt over others in regard to the arrears of tax due to the State. However, when the assets are secured assets with the bank and the bank being the secured creditor and its debt being a secured debt, has its secured interest over the property, the principle of first charge/priority of State over the property will not be applicable. The learned counsels had also submitted that the issues arising for consideration in the present writ petitions are covered by the decision of the Division Bench. Therefore, in view of the said decision, the writ petition in W.P. (MD) No. 945 of 2009, stands dismissed and the writ petition in W.P. (MD) No. 3713 of 2008 stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.
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2009 (12) TMI 903
Whether an offence under Section 138 of the Negotiable Instruments Act, 1881, could be compounded under Section 147 of the said Act read with Section 320 Cr.P.C.?
Held that:- It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution.
Since the parties have settled their disputes, in keeping with the spirit of Section 147 of the Act, we allow the parties to compound the offence, set aside the judgment of the courts below and acquit the appellant of the charges against him. Appeal allowed.
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