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2010 (11) TMI 1053
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... ... ..... te Officer. He has further upheld the findings of the Estate Officer of the license of the respondent having not been terminated in accordance with law and the respondent being accordingly not an unauthorized occupant. 4. It is felt that no purpose will be served in keeping this petition pending. The findings of the Estate Officer affirmed by the Addl. District Judge in appeal are findings of fact. The petitioner rather than wasting time in this petition would be well advised to initiate fresh proceedings for ejectment and for recovery of damages in accordance with law and which right of the petitioner is not controverted by the respondent also. The counsel for the respondent however states that the petitioner for being entitled to initiate fresh proceedings will have to terminate the license of the respondent in accordance with law. 5. The present petition is dismissed with liberty to the petitioner to initiate fresh proceedings against the respondent. No order as to costs.
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2010 (11) TMI 1052
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... ... ..... of the case. It was also held that if the assessee never started business or has started the business but ceased but no intention to resumption then the asset also will ceased to be a business asset. In the case of Commissioner Of Income Tax vs Mohiddin Hotels Pvt. Ltd. And Anr. (supra) the leased out premises was the hotel along with the business. Therefore, it was held that the intention was to exploit the hotel as business asset. In the case in hand, it was not leased out of premises along with the business but it was only a part of incomplete premises leased out for the purpose of other than the business activities. Therefore, in view of the decision of the Hon. Supreme Court in the case of Shambhu Investment (supra), the rent received by the assessee is assessable as income from house property. Accordingly, we do not find any reason to interfere with the impugned order of the CIT(A). 9. The appeal of the assessee is dismissed. Pronounced in the open court on 26.11.2010.
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2010 (11) TMI 1051
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... ... ..... not borne out of record whether any verification of the claims of expenditure was made by him. The Learned D.R also contends that the decision of Hyderabad bench of ITAT in the case of Nirmal Agricultural society is distinguishable and his contention also needs proper examination. Hence we are of the view that the entire issue needs to be examined in the light of the decision rendered by the Hyderabad bench in the case of Nirmal Agricultural society, (Supra). Accordingly, we set aside the order of learned CIT(A) in all these years and restore the matter back to the file of the Assessing Officer with a direction to examine the expenditure claim of the assessee in the light of the decision of Hyderabad bench in the case of Nirmal Agricultural society, (Supra) after affording necessary opportunity of being heard to the assessee. 6. In the result, all the appeals of the revenue are treated as allowed for statistical purposes. Pronounced in the open Court on 18th November, 2010.
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2010 (11) TMI 1050
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... ... ..... ncur with the above statement. 34. In the circumstances, we are satisfied that the applications made by the first respondent for rectification/removal of the subject trade marks from the register need to be considered afresh by the IPAB in accordance with law and the observations made above. Since the first respondent has also grievance in connection with the impugned order particularly with regard to non- consideration of its case under Section 56 of the 1958 Act, we refrain from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the IPAB. 35. In view of the above, these appeals are allowed in part and the impugned order dated September 9, 2004 is set aside. The applications being TRA Nos. 25 to 27 of 2003 (OP Nos. 764 to 766 of 2001) are restored to the file of Intellectual Property Appellate Board, Chennai for hearing and disposal afresh in accordance with law. The parties shall bear their own costs.
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2010 (11) TMI 1049
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... ... ..... erefore, direct the Assessing Officer to re-calculate the charge of interest under these two sections only after excluding the quantum of the disallowance discussed hereinabove.” 8.2. Respectfully following the above view, we hereby direct the Assessing Officer to recalculate the interest as per the directions. This ground of the cross objection is allowed. 9. Ground No.7 7. Learned CIT(A) has erred in law and on facts in not adjudicating upon the ground challenging the action of AO in initiating penalty under section 271(1)(c) of the Act without recording mandatory satisfaction as contemplated under the Act. 9.1. Merely by initiation of penalty proceedings, no substantial grievance at that point of time had caused to the assessee, therefore, this ground being pre-mature is hereby dismissed. 10. In the result, Revenue’s appeal as well as cross objection filed by the Assessee both are partly allowed. Order signed, dated and pronounced in the Court on 30/ 11 /2010.
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2010 (11) TMI 1048
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... ... ..... urt does not apply to the facts of the case. 24. Ground No. 3 pertains to the issue of directing the A.O. not to exclude 90 of sundry credit balance written back and provisions of doubtful debts written back within the meaning of Explanation (baa) to section 80HHC. It was the contention of the assessee in assessee’s appeal that these issues have not been adjudicated as part of other incomes considered in ground No. 5.4 and accordingly the issue of sundry credit balance as part of miscellaneous income is restored to the file of the CIT(A) for adjudication. With reference to provisions of doubtful debts written back, this issue is restored to the file of the A.O. for examination of facts vide ground No. 5.6 of the other appeal. Accordingly, since these issues are restored to the file of the CIT(A)/A.O. the ground is considered allowed for statistical purposes. 25. In the result, both the appeals are allowed partly. Order pronounced in the open court on 4th November 2010.
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2010 (11) TMI 1047
Maintainability of the criminal prosecutions - Petitions filed u/s 482 for quashing the order - the Public Analyst submitted his report stating that upon analysis of the sample of Pepsi Sweetened Carbonated Water, using the Directorate General of Health Services (DGHS) method, pesticide residue- Carbofuran, to the extent of 0.001 mg per litre was detected therein. The said sample was, therefore, adulterated within the meaning of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act. Based upon the report of the Public Analyst, the CJM, took cognizance of the offence and issued process against the Appellants. The Appellants moved the HC u/s 482 Cr.P.C. for quashing of the aforesaid order of the CJM. The learned Single Judge by his order, dismissed the said application and directed the prosecution to continue with the case. Aggrieved by the order, the Appellant-Company, and its Directors have filed these appeals challenging the cognizance taken by the learned Magistrate.
HELD THAT:- the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.It may be noted that the High Court had itself observed that mere presence of insecticide residue to any extent could not justify an allegation that the article of food was adulterated, but contrary to such observation, the High Court went on to hold that the Sweetened Carbonated Water manufactured by the Appellants was adulterated within the meaning of Section 2(ia)(h) of the 1954 Act.
It has to be kept in mind that although an argument was advanced with regard to the restrictions imposed on the use of insecticides under Rule 65 of the 1955 Rules, it is apparent from the order of the learned Single Judge that such a ground was given up by the respondents and the arguments were confined only with regard to the alleged violation of Section 2(ia)(h) of the 1954 Act.
We, accordingly, allow the appeals and set aside the judgment and order of the learned Single Judge impugned in these proceedings and quash the prosecution of the Appellants in respect of the various complaints challenged before the HC in its inherent jurisdiction.
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2010 (11) TMI 1046
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... ... ..... page nos. 50 and 51. The account shows an opening debit balance of ₹ 40,30,521/-. Various amounts were recovered from this concern. A sum of .Rs. 8,26,453/- has been written off in this account on 28.8.2006. The account clearly shows that it was in respect of services rendered by the assessee. Thus, the amount now written off had been taken into account as a trading receipt earlier and it has been written off from the books of account. Therefore, the twin conditions mentioned in section 36(1)(vii), as it exists for the relevant assessment year, stand satisfied. In view of the amendment in this section, it has been held that it is not necessary for the assessee to prove that the debt became bad in this year. The AO has not challenged that the action of write off is not bona fide. Therefore, it is held that the assessee is entitled to deduction of this amount. 5. In the result, the appeal is dismissed. 6. This order was pronounced in the open court on 8th November, 2010.
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2010 (11) TMI 1045
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... ... ..... assessee not being the owner of the plot but merely holding possession thereof on behalf of the 14 co-operative societies and managing the same for the common benefit of the member societies cannot be considered as the owner of the property in order to bring the sale price to tax in its hands as capital gains. This is also supported by the accounting entries which show that the respective shares of the 14 housing societies in the sale consideration, after deducting the common expenses, has been divided in proportion to their respective shares in the property and credited to their accounts and shown as deposits in the assessee’s balance sheet. In the absence of any transfer by the assessee, no capital gains can be assessed in its hands even on protective basis. 7. We thus affirm the decision of the CIT(A) but for different reasons and dismiss the appeal filed by the revenue with no order as to costs. Order pronounced in the open court on this 4th day of November, 2010.
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2010 (11) TMI 1044
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... ... ..... g from an application of a provision of law and would not tantamount to concealment or furnishing of inaccurate particulars of income, within the meaning of section 271(1)(c) of the Act in the present case. In the aforesaid proposition, we are supported by the judgment of the Hon'ble Madras High Court in the case of CIT Vs. MSK Construction (P.) Ltd., 296 ITR 18(Mad.), wherein it has been observed that a disallowance made u/s 43B of the Act does not amount to concealment within the meaning of section 271(1)(c) of the Act. 8. In the background of the aforesaid discussion, we are inclined to uphold the ultimate prayer of the assessee that penalty u/s 271(1)(c) of the Act, is not merited in the present case. Accordingly, the order of the CIT(A) is set aside and the Assessing Officer is directed to delete the penalty imposed u/s 271(1)(c) of the Act amounting to ₹ 13,06,365/-. 9. In the result, appeal of the assessee is allowed. Order pronounced on 30th November, 2010.
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2010 (11) TMI 1043
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... ... ..... lear that this certificate issued cannot be valued for the indefinite period. The renewal of registration or considering a fresh application of the applicant for registration under Section 12A would entirely depend upon the activity carried on by the institution and management of its funds by the concerned trustees and genuineness of its activities carried on under the previous year on years as the case may be depending upon the information sought by the authority and furnishing of the same by an appellant. 14.In view of the above discussion, we are of the considered view that tribunal was in error in holding that assessee would be entitled to claim registration u/s 12A of the Act answering substantial question of law in the negative i.e. in favour of Revenue and against the assessee. Hence, appeal is allowed and order of the Tribunal, Bangalore passed in ITA 1410/Bang/2002 dated 26.8.2005 is hereby set aside and the order of Director (Exemption) dated 28.6.2002 is restores.
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2010 (11) TMI 1042
Levy of service tax - Information technology software service - "maintenance or repair" services - taxable u/s 65(105)(zzg) r/w Section 65(64) - invoking extended period of limitation u/s 73(1) - penalties u/s 76 to 78 - HELD THAT:- We hold that the maintenance charges collected by the appellant from their customers during the period from 09.07.2004 to 31.01.2006 are not liable to be subjected to levy of Service Tax under the head 'maintenance or repair service' u/s 65 (105) (zzg) read with Section 65 (64) of the Finance Act, 1994. The services rendered by the appellant to their customers are in the nature of information technology software service which was made taxable w.e.f. 16.05.2008 only. Such service is not to be subjected to levy of Service Tax under any other entry. Therefore, the demand of Service Tax and the connected penalties are only liable to be set aside.
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2010 (11) TMI 1041
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... ... ..... eposited due to financial difficulties of the company. He submits that the appellant is willing to deposit an amount of Rs. One crore within a week and the balance amount within a further period of 4 weeks. The ld. SDR has opposed this plea of the appellant. He also submits that the appellant s application to the Hon’ble High Court for extension of time for pre-deposit was itself dismissed. He also produces a copy of the High Court’s order dated 21.10.10, which reads thus - The appeal has already been disposed of by a reasoned order. No case is made out to grant any relief as prayed for in this Notice of Motion. The Notice of Motion is accordingly dismissed with no order as to costs. 3. In the result, the appeals can only be dismissed in terms of the Hon’ble High Court’s order dated 29.7.10. Accordingly, the 3 appeals are dismissed for want of compliance with Sec.35F of the Central Excise Act as applicable to Service Tax appeals. (Pronounced in court)
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2010 (11) TMI 1040
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... ... ..... sed in all appeals of the Department is that the ld. CIT(A) has erred in allowing depreciation on project assets at the rate of 10 applicable to the building by placing reliance on the precedent of ITAT Chennai 'C; Bench decision against which the Revenue has preferred further appeal in the High Court of Madras, but could not be able to place on record any evidence or material to show that the order of the Tribunal, on the basis of which the ld. CIT(A) has passed the order, has been reversed or set aside by the Hon'ble Jurisdictional High Court. Therefore, in view of the facts, circumstances and material on record we do not find any valid reason to interfere in the orders passed by the ld. CIT(A) for all the four years in this case and while confirming the impugned orders, we dismiss the appeals of the Revenue being devoid of any merits. 7. As such, all the four appeals of the Revenue are dismissed. Order pronounced soon after the conclusion of hearing on 30.11.2010.
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2010 (11) TMI 1039
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... ... ..... In such circumstances Judhpur Bench in the case of ACIT v. Alfa Hydromec Pvt. Ltd 99 TTJ 405 (Jd) has held that penalty u/s.271D should not be levied. In view of above, respectfully following the decisions cited above and keeping in mind the intent and purpose of incorporating sec.269SS and sec.269T as explained by CBDT Circular No.387 reported in 152 ITR (St)1, I delete the penalty levied by the A.O. u/s.271D and sec.271E." In view of the above and in the absence of any contrary material brought on record by the revenue authorities, we do not find any necessity to interfere with the order of the Ld. CIT(A) and the same is hereby upheld. Besides, the Ld. CIT(A) has deleted the penalty by following the decisions of the ITAT, Ahmedabad Bench, Mumbai Bench, Jodhpur Bench and the CBDT Circular also. Therefore, the appeals filed by the revenue are dismissed. 6. In the result, the appeals of the revenue are dismissed. 7. The order is announced in the open court on 16.11.2010
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2010 (11) TMI 1038
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... ... ..... in favour of the assessee considering the aforementioned full Bench decision of Punjab & Haryana High Court in the case of Budhewal Coop. Sugar Mills Ltd. vs. CIT 315 ITR 351 (P&H). Therefore, the Coordinate Chandigarh Bench has decided the said issue in favour of the assessee by dismissing the departmental appeal on this issue. Respectfully following the aforementioned order of the Tribunal, we decide this ground i.e., ground No.1 raised by the assessee in favour of the assessee and ground No.1 of the assessee’s appeal is allowed. 6. On all other issues, as already stated, the order of the Tribunal will remain the same and this order is being passed to give effect to the findings recorded by Hon’ble High Court. 7. In the result, both the cross appeals are allowed for statistical purposes as mentioned in the aforementioned order of the Tribunal dated 23rd November, 2004 passed in the impugned appeals. The order pronounced in the open court on 19.11.2010.
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2010 (11) TMI 1037
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... ... ..... bservation on these two aspects in para 12.1 and 12.3 of the order. When he noticed contrary, he examined the issue in para 12.4 of the order further. He was of the view that there was no possibility of any other view other than quantity based discharge of export obligation. Consequently, he was compelled under the law to raise the demand under para 13 of the impugned order for the reasons stated in para 12.6 thereof. 3. Heard Revenue and also perused the record. 4. We do not find any unreasonability in the averments of the Revenue. When we did not find even from the grounds of appeal of appellant a case showing their approach to discharge the export obligation in strict terms of advance licence, there is no possibility to dispense the pre-deposit at all. Accordingly, we direct the appellant to make pre-deposit of entire demand raised by the order of adjudication within four weeks from today and make compliance on 4th Feb., 2011. Dictated & Pronounced in the open Court .
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2010 (11) TMI 1036
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... ... ..... rived from' is narrower as compared to that of the words 'attributable to'. By using the expression 'derived from' Parliament intended to cover sources not beyond the first degree. 8. From the orders of the lower authorities, it is not clear as to how the scrap was generated and therefore, in order to verify whether the scrap had direct nexus with the industrial operation or it was scrap of other nature, we restore this issue to the file of the A.O. for necessary verification. To the extent, the scrap has direct nexus with the industrial operations thereby implying that to the extent scrap is in the nature of bye-product of industrial operations, the same would qualify for deduction u/s.80IB. In the result, ground No.3 for A.Y. 2003-04 and ground No. 1 for A.Ys. 2004-05 and 2005-06 are allowed for statistical purposes. 9. In the result, the appeals are allowed for statistical purposes. Order pronounced in the open court on this 30th day of November, 2010.
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2010 (11) TMI 1035
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... ... ..... ct of the fair market value of the services rendered by Shri Anil Gupta to the assessee-firm. No comparable case has been brought on record. On the other hand, the ld. CIT(A) has clearly mentioned that the services were engaged to take care of the interest of the firm and the firm has been able to derive income of about ₹ 24.00 lakhs in these years. These findings have not been displaced by the ld. DR in any manner. Otherwise, tax has been deducted at source from the salary paid to Shri Anil Gupta and composition of his total income is such that a part of it falls within the maximum marginal rate of tax. In absence of any evidence that the fair market value of services rendered by him to the firm was less than the actual amount paid to him, we are of the view that the ld. CIT(A) was right in deleting the disallowances made by the AO. o p /o p 6. In the result, the appeals are dismissed. o p /o p This order was pronounced in the open court on 19 November, 2010. o p /o p
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2010 (11) TMI 1034
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... ... ..... order ought to be reviewed by the jurisdictional committee of Commissioners and an appeal ought to be filed by the officer of Customs authorised by such committee. In the present case, the appeal of the department is directed against an order passed by the Commissioner of Customs (Appeals), Mumbai-II. The said order was reviewed first by the Commissioner of Customs (Imports), Mumbai and then by a committee of the Commissioner of Customs (General), Mumbai and the Commissioner of Customs (Imports), Mumbai. Obviously, neither of them had jurisdiction to review any order passed by the Commissioner of Customs (Appeals), Mumbai-II in relation to a matter like the present one falling within the jurisdiction of the Commissioner of Customs (Imports), Nhava Sheva. Nothing contained in Notification no. 15/00-Cus has any bearing on the jurisdictional issue considered by us. 5. The appeal is dismissed as not maintainable. Miscellaneous application is also dismissed. Pronounced in Court.
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