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Showing 101 to 120 of 978 Records
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2009 (7) TMI 1294 - CESTAT AHMEDABAD
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... ... ..... ch a scenario, the period of 30 days to deposit the dues along with 25 of penalty shall start running from the date of passing fresh orders by the adjudicating authority. However, instead of adopting the above route, penalties can be enhanced at appellate level with option to deposit reduced penalties along with other dues within a period of thirty days from the date of passing appellate orders, in terms of 3rd and 4th Proviso to Section 11AC. 7. In view of the above discussion I enhance the penalty equal to the duty confirmed against the assessees. However, in view of the Provisos to Section 11 AC and the Hon'ble High Court's judgments referred supra, I give an option to the assessee to deposit the entire dues along with 25 interest of penalty within a period of thirty days of communication of the present order, in which case the penalty shall stand restricted to 25 of the duty amount. All the appeals are disposed off in above terms. Pronounced in Court on 2.7.2009.
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2009 (7) TMI 1293 - MADRAS HIGH COURT
Enhancement of Tax Rate - paper based laminated sheets - rate enhanced to 16% from 10% - whether interpretation given by the Supreme Court with respect to entry made under the Central Excise Tariff Act, 1985, with regard to paper based decorative laminated sheets can be relied on by the first respondent to collect tax under TNGST Act, 1959, which is a separate enactment passed by the State Legislature?
Held that: - the is covered by the recent judgment of this Court in CCE v. Mysore Electricals Industries Ltd, [2006 (11) TMI 202 - SUPREME COURT OF INDIA], where this Court held that a beneficial circular has to be applied retrospectively while oppressive circular has to be applied prospectively. Thus, when the circular is against the assessee, they have right to claim enforcement of the same prospectively.
In tax matters, the clarifications issued can be applied only prospectively, failing which it will cause hardship to the assessees.
In Manish Maheshwari v. Assistant Commissioner of Income-tax and Another, [2007 (2) TMI 148 - SUPREME COURT OF INDIA], the Supreme Court held that while two interpretations are possible, the Court would ordinarily interpret the provisions in favour of the tax-payers and against the revenue - In the cases on hand, admittedly there was ambiguity with regard to the rate of tax payable by the assessees for the paper based decorative laminated sheets and the benefit of the said ambiguity should be extended to the petitioner-assessees and not to the department/revenue.
The impugned clarification issued by the first respondent and the consequential show cause notices/orders passed in reassessment, issued by the second respondent are unsustainable - petition allowed.
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2009 (7) TMI 1292 - ITAT DELHI
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... ... ..... amples used by the assessee for carrying on its business more effectively and more efficiently. Expenses were incurred for purposes of business. Samples like advertisement, may be beneficial to the assessee not only in the year in which expenses are incurred but in other years also. But on that account, expenses cannot be treated as of capital nature. This proposition is now well accepted in the light of decision of Supreme Court noted by learned CIT (Appeals) in the impugned order. There being no dispute that expenses were necessary for efficient running of business and, therefore, for the purposes of business, these were required to be allowed in terms of section 37(1) of the Income-tax Act. On facts, we do not find any error in the approach of learned CIT (Appeals). The view of learned CIT (Appeals) in both the assessment years is hereby confirmed and the common ground raised by the revenue is dismissed. Pronounced in Open Court during the course of hearing on 06.07.2009.
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2009 (7) TMI 1291 - SUPREME COURT
Acquisition Proceedings - Assessee is a Government of India Undertaking into business of generation of electricity - as contented possession of 55.498 acres of land not been delivered in favour of NTPC - actual or symbolic possession - merely a symbolic possession had been delivered? - whether the finding of fact arrived at by the High Court that physical possession, indeed, had been taken over by the Collector is correct or not - Concedingly, a declaration in terms of Section 6 of the Act was issued whereafter notices to persons interested u/s 9 thereof had also been issued. Award had also been published - power of the State to withdraw the Notification of acquisition as envisaged under Section 48 of the Act falls for our consideration.
HELD THAT:- It is a well settled proposition of law that in the event possession of the land, in respect whereof a Notification had been issued, had been taken over, the State would be denuded of its power to withdraw from the acquisition in terms of Section 48 of the Act.
The emergency provisions were resorted to. Even 80% of the compensation had been paid way back in 1984. Had possession of the vacant land been not taken, the question of payment of 80 % of compensation would not have arisen. All other legal requirements to invoke the said provision have been complied with.
From a perusal of the award, therefore, it is evident that not only the provisions of Section 17 of the Act were found to have been implemented but even interest had been granted from the date of acquisition, namely, from the date of taking over of possession. Interest had also been granted in terms of Section 23A of the Act from the date of notification till the date of actual taking over of possession. The Reference Court also, in its judgment, held :
"(2) The petitioners will get 12% per annum as additional amount on the above market value for the period commencing from the date of publication of the notification u/s. 4(1) dated 6.9.84 to the date of possession dated 16.11.84."
The Reference Court, in its judgment, also noticed that the possession of the land has been taken over on 16.11.1984. No objection was taken before the Reference Court that possession had not been taken and, thus, interest was not payable. No issue was also framed in that regard.
It is beyond any comprehension that when possession is purported to have been taken of the entire acquired lands, actual possession would be taken only of a portion thereof. The certificate of possession was either correct or incorrect. It cannot be partially correct or partially incorrect. Either the possession had actually been delivered or had not been delivered.
The Collector in his certificate of possession dated 16th November, 1984 stated that the possession had been taken over in respect of the entire land; the details of the land and the area thereof had also been mentioned in the certificate of possession; even NTPC in its letter dated 24th February, 1986 stated that possession had not been delivered only in respect of land situated in four villages mentioned therein. Indisputably NTPC got possession over 10.215 acres of land. It raised constructions thereover.
It is difficult to comprehend that if the NTPC had paid 80% of the total compensation as provided for under sub-section (3A) of Section 17 of the Act, out of 65.713 acres of land it had obtained possession only in respect of about 10.215 acres of land and still for such a long time it kept mum. Ex-facie, therefore, it is difficult to accept that merely symbolic possession had been taken.
Whether possession of the acquired land had actually been taken over or not being a disputed question of fact could not have gone into by the High Court? - It is not a case where oral evidence was required to be taken. There is no law that the High Court is denied or debarred from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, the High Court may not ordinarily refuse to do so. In a given case, it may also examine witnesses.
Furthermore the Collector under the Act was acting as a statutory authority. When possession has been shown to have been taken over not only in terms of sub-section (1) of Section 17 of the Act but also by grant of the certificate and other documents, illustration (e) of Section 114 of the Evidence Act 1872, must be held to be applicable. Once such a presumption is drawn the burden would be on the State to prove the contra. The burden of proof could be discharged only by adducing clear and cogent evidence. Not only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken.
The appeals, being devoid of any merit, are dismissed subject to the observations made hereinbefore with costs. Counsel fee assessed at ₹ 50,000/- in each of these appeals.
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2009 (7) TMI 1290 - CESTAT NEW DELHI
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... ... ..... reiterates the finding and reasoning of the Commissioner (Appeals). 7. I have carefully considered the submissions from both sides. I find that the service tax payment by TR-6 challans by the appellant is not in dispute. Whether TR-6 challans could be considered as valid document for the purpose of taking credit has been considered by the Tribunal in the case of Gaurav Krishna Ispat (P) Ltd. and held that the same is admissible for the period prior to 16.6.2006 also. 8. Further, as rightly pointed by the learned Advocate, the Larger Bench of the Tribunal in the case of ABB Ltd. has held that the services availed by a manufacturer for outward transportation of final products from the place of removal should be treated as an input service in terms of Rule 2(1)(ii) of the CENVAT Credit Rules, 2004 and thereby enabling manufacturer to take credit of the service tax paid on the value of such services. 9. In the light of the above, the appeal is allowed with consequential relief.
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2009 (7) TMI 1289 - ITAT DELHI
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... ... ..... he double taxation agreement between India and Mauritius is valid in law and an attempt by resident of third party to take advantage of existing provision of DTAC is not illegal. After that judgment of the Apex court, the said circular No.768 of CBDT is binding on the income-tax authorities and, is therefore, applicable in the instant case and as such the capital gains earned by the assessee is not taxable in India. 6. We have heard the parties and have perused the material placed on record. We are of the opinion that the decision of the Apex Court in the case of UOI vs. Azadi Bachao Andolan cited supra, stands in favour of the assessee and against the revenue. We, therefore, respectfully the decision of the Hon'ble Apex Court in the case cited supra consider it proper to deny to interfere in the order of the Commissioner of Income-tax (Appeals) and uphold his order. 7. In the result, the appeal of the revenue is dismissed. 8. Order pronounced in open court on 10.7.2009.
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2009 (7) TMI 1288 - CESTAT AHMEDABAD
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... ... ..... part of the respondents. Merely making an allegation that the respondents suppressed the fact is not sufficient and the same is to be on the basis of some evidence. Further, I find no infirmity in the order of Commissioner (Appeals), inasmuch as the Hon'ble Supreme Court in the case of Collector of Central Excise vs. H.M.M. Limited 1995 (76) ELT 497 (SC) has held that limitation for extended period not invokable unless show cause notice puts assessee to notice specifically as to which of the various commissions or omissions stated in the proviso to Section 11A(1) of Central Excise and Salt Act, 1944 have been committed. Further, the Tribunal decision in the case of Mahakoshal Beverages Pvt. Limited relied upon by the Commissioner (Appeals) fully covers the disputed issue. I find no infirmity in the views adopted by the Commissioner (Appeals). Appeal filed by the Revenue is accordingly, rejected. Cross objection also get disposed off. Dictated and Pronounced in the Court.
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2009 (7) TMI 1287 - CESTAT, CHENNAI
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... ... ..... that an order relating to renewal of CHA licence is administrative in nature and not a quasi-judicial order against which an appeal is maintainable before the Tribunal. The Tribunal has held that appeal does not lie before the Tribunal following the judgment of the Honble Calcutta High Court in M. Dutta Agency Vs. Commissioner 1998 (1) LCX 77 and Tribunals decision in P. Cawasji and Co. 2000 (119) ELT 606 and G.P. Jaiswal 2008 (226) ELT 707. The Tribunals order in A.S. Vasan & Sons cited supra has been upheld by the Bombay High Court as seen from 2009 (238) ELT 217. 3. Following the ratio of the above decisions and also following the ratio of the Tribunals order in Tass Clearing Services P. Ltd. Vs. Commissioner of Customs, Hyderabad 2009 (238) ELT 671, I reject the appeal of the Revenue as not maintainable before the Tribunal. 4. Cross-objection is dismissed as it is only in the nature of comments on/reply to the Revenues appeal. (Dictated and pronounced in open court)
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2009 (7) TMI 1286 - CESTAT, KOLKATA
Smuggling - sugar - Case of the Revenue is that the sugar is being stored near the Bangladesh Border and it is for smuggling to Bangladesh and it is well known fact that there has been regular smuggling of sugar through this area - Held that: - no evidence whatsoever has been adduced to show that the confiscated sugar was being attempted for illegal export. The sugar was merely stored in godown and storing is not synonymous with attempts to illegal export to Bangladesh. In view of these facts and as there is no evidence on record that the sugar is being smuggled to Bangladesh - appeal dismissed - decided against Revenue.
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2009 (7) TMI 1285 - ITAT DELHI
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... ... ..... also been submitted in support of agricultural income in the hands of Sh. Ranvir Singh. 40. On the basis of evidences as discussed above, the CIT(A) held that the assessee has established the identity of the creditors, and the genuineness of the transactions resulting in the receipt of loans from those creditors. The creditworthiness in the context of the individual creditors has been established with reference to identified sources of income in each case and thereafter deleted the addition u/ s 68 of the amounts obtained as loans from Directors shareholders and others. The finding recorded by CIT (A) remained t uncontroverted, we therefore do not find any reason to interfere in the order of CIT(A) deleting the addition of ₹ 2,72,917/- and the ground of appeal taken by the revenue is rejected. 41. In the result, both the appeals of the assessee and revenue are allowed in part, in terms indicated hereinabove. The order was pronounced in the open court on 10th July, 2009
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2009 (7) TMI 1284 - PUNJAB AND HARYANA HIGH COURT
Service of notice - Section 11(2) of the Punjab General Sales Tax Act, 1948 - Held that: - remedy of appeal has been provided under Section 20(1) of the Act against the assessment order - the petitioner is relegated to the remedy of appeal. The petitioner may file an application for condonation of delay in filing the appeal by citing the reason of pendency of this petition - petition disposed off.
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2009 (7) TMI 1283 - ITAT AHMEDABAD
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... ... ..... chased and sold by the assessee were not the market value of the shares at the relevant time. Further, the transactions were duly supported by contract note of registered share broker and the details of the above transactions were also reported to the Stock Exchange. Further, it is not the case of the revenue that the assessee has not made the payment of actual amount of loss suffered by it in the transactions. No material was brought on record after making any inquiry or investigation to show that the transactions were bogus and actually no loss was suffered by the assessee. Thus, in our considered opinion, the transactions were considered as bogus or sham by the Assessing Officer only on the basis of doubts or conjectures and the same cannot be sustained. In view of the above, we do not find any good reason to interfere with the order of the ld. CIT(Appeals). Therefore, this ground of appeal of revenue is dismissed. 8. In the result, the appeal of the Revenue is dismissed.
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2009 (7) TMI 1282 - DELHI HIGH COURT
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... ... ..... that amounts spent on gifts given to the officials could not be allowed as expenses. What we find from the orders of the ITAT, as per the aforesaid extracted portion, that the major items of gifts under, the head were below ₹ 340 and not in excess of ₹ 340. When the matter is to be examined from this angle, we fail to understand as to how this amount could not be treated as expenses. It is not a case that certain expensive gifts were given to the officials to elicit orders. It appears that as a normal business activity, gifts of minor nature were, given to various persons, which included some officials also. This would nonetheless remain as sale promotion gifts and such an act was an act of business expediency on the part of the assessee. These are all finding of facts recorded by the Tribunal. According to us, no substantial question of law arises for our consideration. 7. We, therefore, do not find any merit in these appeals and accordingly dismiss the appeals.
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2009 (7) TMI 1281 - DELHI HIGH COURT
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... ... ..... assessee as to the genuineness to the transaction. However, there is nothing in the said order to indicate that any satisfaction was also recorded that transaction in question was a sham transaction or was not a genuine transaction. No doubt, the expression ‘genuineness of expenses’ has crept in the order, but, reading the entire order we find that the same is in the context of the sufficient evidence justifying the said expenses and there is no prima facie satisfaction regarding furnishing of inaccurate particulars of such expenditure. Therefore, we find pre-requisites of section 271(1)(c) are missing in the Assessment Order and thus penalty proceedings could not be initiated against the assessee. The same is the position regarding other expenses which were disallowed. 6. Therefore, we are in agreement with the order passed by the learned ITAT and are of the opinion no substantial question law arises in this case. This appeal is accordingly dismissed in limine.
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2009 (7) TMI 1280 - ITAT AHMEDABAD
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... ... ..... nce was made only on assumptions and presumptions, that the AO has not made out any case to show that the expenditure was not incurred for the purpose of the business, that he has not established that the vehicles were used for the personal purposes and so on. It seems to us that the CIT(A) has placed the burden erroneously on the AO, contrary to the well settled proposition that it is for the assessee who has claimed the expenditure to adduce evidence in support of its allowability. Taking all these aspects into consideration, we are of the view that the orders of the departmental authorities require to be set aside. We direct accordingly and restore the assessment to the file of the AO who shall complete the assessment de novo in accordance with law and after giving adequate opportunity to the assessee of being heard. 7. In the result, the appeal of the department is thus allowed but only for statistical purposes. Order pronounced in the open court this 31st of July, 2009.
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2009 (7) TMI 1279 - ITAT AHMEDABAD
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... ... ..... criminal liability u/s 276C and penalty u/s 271(1) ( c) had to be kept in mind and approach adopted to the trial of a criminal case need not be adopted while considering the levy of penalty. Even so, the concept of penalty has not undergone change by virtue of the said judgment. Penalty is imposed only when there is some element of deliberate default and not a mere mistake. In view of the finding that the furnishing of inaccurate particulars was simply a mistake and not a deliberate attempt to evade tax, penalty was not leviable.” (Emphasis supplied) In view of the above, and considering the facts and circumstances of the case, since there is no concealment of income or submission of inaccurate particulars of income, the learned CIT(A) has rightly cancelled the penalty levied u/s.271(1)(c) of the Act. We uphold the same and dismiss the appeal of the Revenue. 3. In the result, the appeal of the Revenue is dismissed. THIS ORDER IS PRONOUNCED IN OPEN COURT ON Dt.24.07.09
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2009 (7) TMI 1278 - DELHI HIGH COURT
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... ... ..... silver gears or that he was involved with him; the petitioner was only a proprietor of the courier company and goods were recovered duly packed; the petitioner had agreed for some extra payment only, to generate an invoice; the respondent has been unable to show that the petitioner may commit any offence, if bail is granted to him, I consider this to be a fit case for grant of bail inasmuch as, the parameters of section 37 of the NDPS Act are fully met. The petitioner shall be released on bail on his furnishing a personal bond in the sum of ₹ 50,000/- with one surety of the like amount to the satisfaction of the trial court, subject to the condition that (i) petitioner will not tamper with the evidence or contact or influence any witness; (ii) the petitioner shall surrender his pass-port (if any), before the concerned court; and (iii) the petitioner shall not leave this country without prior permission of the concerned court. 13. Application stands disposed of. DASTI.
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2009 (7) TMI 1277 - ITAT BANGALORE
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... ... ..... ing of Indo-UK DTAA. Consequently, there was no obligation on the part of the assessee to deduct tax u/s.195. 23. Coming to the facts in the instant case, on the same analogy it is difficult to hold that any part of the payment arises or accrues in India, as the recipient is a non-resident agent of the Indian exporter. It is difficult to hold that any part of the amount was received on behalf of the Indian party. 24. In short, we are of the view that the aggregate of the three items, viz., commission/marketing fee, reimbursement of expenses and mark-up, could not be brought into tax net since no technical knowledge, expertise, skill, know how or process consisting of the development and transfer of technical plan or technical design has been transferred to the assessee so that the assessee could use that knowledge, expertise, skill etc., in the future. 25. In view of the above discussion, we dismiss the appeal by the revenue. Order pronounced in open court on this 24.7.2009.
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2009 (7) TMI 1276 - ITAT BANGALORE
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... ... ..... does not follow the earlier decision of the same court in CIT vs HMT Ltd. (1993) 199 ITR 235 (Kar.). The decision as reported does not contain reference to any elaborate arguments. The decision is distinguishable on facts and law. Therefore, the process ascertaining the total income where section 10A deduction is involved, would comprise by computing profits and gains derived by the unit and in this process the unabsorbed depreciation which is not part of the depreciation of the impugned assessment year is not to be factored, then the deduction as computed which will be available for carrying out set off of unabsorbed depreciation. Section 10A deduction is to be done u/s 28 to 44B but separately and independent of computation of profits and gains from eligible business and without factoring unabsorbed depreciation. This ground agitated, therefore, stands allowed". 4. In the result, both the appeals of the revenue are dismissed. Pronounced in the open Court on 24.7.2009.
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2009 (7) TMI 1275 - SC ORDER
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... ... ..... radip Sharma, Adv. Mr. T.A. Khan, Adv. Mr. B.V. Balaram Das,Adv. ORDER Delay condoned. Dismissed.
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