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2010 (5) TMI 905 - ALLAHABAD HIGH COURT
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... ... ..... g independent business of sale and purchase of coal. Sri Shree Krishna Ji Agrawal, learned counsel appearing for the assessee opposite party has submitted that in respect of this very assessee itself, in the case of Commissioner Trade Tax Vs. Transrapsi Ent. Bhatta Kalyan Samiti, 2009 UPTC 572 this Court has accepted the assessee revisionist to be a commission agent and that he has only charged commission on the sale and purchase of the coal made through him to the brick-kiln owners. In view of the aforesaid decision which has become final, there is no occasion for me to make a different view in the matter. Accordingly, respectfully following the aforesaid decision it is held that the tribunal has not committed any error in treating the assessee revisionist as commission agent. Therefore, the exclusion of the inward freight from the taxable turnover is not illegal under the facts and circumstances of the case. In view of the above, the revision has no merit and is dismissed.
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2010 (5) TMI 904 - SC ORDER
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... ... ..... ivil Appeal is dismissed on the ground of delay.
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2010 (5) TMI 903 - ITAT DELHI
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... ... ..... confirmation letters and annexed documents were examined with the departmental data. Broadly, they were found to be in order.” Meaning thereby, that the AO had accepted the merits of the confirmations filed by the assessee before the ld. CIT(A) by way of additional evidence. No adverse comment was offered to these confirmation letters from the creditors of the assessee company. It was on the basis of this unrebutted evidence plus the position that all the creditors of the assessee were having PAN and the transactions were through regular banking channels, that the ld. CIT(A) deleted and rightly so, the addition made by the AO. 21. Therefore, here, the case of the Department does not hold much water. Finding no error in the order of the ld. CIT(A) concerning this issue, the same is hereby upheld. Ground No.4 is, accordingly, rejected. 22. In the result, the appeal filed by the Department is partly allowed, as indicated. Order pronounced in the open court on 14. 05.2010.
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2010 (5) TMI 902 - ITAT MUMBAI
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... ... ..... o question of inviting the penalty under section 271(1)(c). A mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars.” This decision was taken after considering the decisions of the Hon’ble Supreme Court in the case of UOI vs. Rajasthan Spg. & Wvg. Mills 2010 1 GSTR 66, CIT v. Atul Mohan Bindal 2009 317 ITR 1, Dilip N. Shroff v. JCIT 2007 291 ITR 519 and the Union of India v. Dharamendra Textile Processors 2008 306 ITR 277. 12. Therefore, in view of the fact that assessee had raised a bonafide claim and has not filed any inaccurate particulars of income, we are of the view that penalty has been rightly deleted by the learned CIT(A) and therefore, we confirm this order. 13. In the result, the appeal is dismissed. Order pronounced in the Open Court on this 7th day of May, 2010.
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2010 (5) TMI 901 - ITAT AHMEDABAD
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... ... ..... issions made the same submissions as were made in assessment year 2002-03 that the investment in shares has come down to ₹ 1.58 Crores as against own funds of ₹ 6.84 Crores. It was also submitted that investments in shares have been made in the earlier years. 16. On consideration of the above facts, we are of the view that the issue is same as is considered in the assessment year 2002-03 in ITA No.2407/Ahd/2005. The learned CIT(A) has followed the order of the learned CIT(A) for assessment year 2002-03 and no independent finding is given. We, therefore, following the order of the assessment year 2002- 03 in ITA No.2407/Ahd/2005, set aside the orders of the authorities below and delete the entire disallowance of the interest. 17. As a result, the appeal of the assessee is allowed and the departmental appeal is dismissed. 18. In the result, both the appeals of the assessee are allowed whereas both appeals of the Revenue are dismissed. Order pronounced on 07-05-2010
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2010 (5) TMI 900 - SUPREME COURT
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Writ Petition - questioning the legality, validity and propriety of two notifications - issued by Government of Goa dated 15.5.1996 and 01.8.1996 - grant of 25% rebate to Low Tension, High Tension and Extra High Tension Industrial consumers of electricity as a policy of the State Government - ''Doctrine of indoor management''- ''doctrine of constructive notice''- The doctrine of indoor management is in direct contrast to the doctrine or rule of constructive notice, which is essentially a presumption operating in favour of the company against the outsider. It prevents the outsider from alleging that he did not know that the constitution of the company rendered a particular act or a particular delegation of authority ultra vires. The doctrine of indoor management is an exception to the rule of constructive notice. It imposes an important limitation on the doctrine of constructive notice. According to this doctrine, persons dealing, the company are entitled to presume that internal requirements prescribed in memorandum and articles have been properly observed. Therefore doctrine of indoor management protects outsiders dealing or contracting, a company, whereas doctrine of constructive notice protects the insiders of a company or corporation against dealings, the outsiders. However suspicion of irregularity has been widely recognized as an exception to the doctrine of indoor management. The protection of the doctrine is not available where the circumstances surrounding the contract are suspicious and therefore invite inquiry.
HELD THAT:- the Notification dated 01.08.1996, that it re-introduced the benefit of rebate on tariff and made it available to units on the prevailing tariff in force from time to time at which the units were billed for a period of five years from the date of supply of power was made available to them and who had applied or availed power supply on or after 01.10.1991. The notification dated 30.09.1991 on the other hand made available the rebate on the basis of tariff set out in the Notification dated 27.06.19888 and to Low and High Tension Power consumers who had applied for supply of power and were given power supply on or after 01.10.1991. The Notification dated 01.08.1996, it is seen, extended the scope of benefit of rebate as compared to the Notification dated 30.09.1991 which had been rescinded by the Notification dated 31.03.1995. It is on record and we notice from the judgment of the High Court that the State Government had paid as a result of the Notification dated 01.08.1996 a sum or ₹ 8 crores in excess as compared to the benefit available under the Notification of 1991 and the total amount of rebate would have been more than 30 crores had the benefit as made available by the 1996 Notification been continued.
Thus from the foregoing, it is clear that a decision to be the decision of the Government must satisfy the requirements of the Business Rules framed by the State Government under the provisions of Article 166(3) of the Constitution of India. In the case on hand, as have been noticed by us and the High Court, the decisions leading to the notifications do not comply, the requirements of Business Rules framed by the Government of Goa under the provisions of Article 166(3) of the Constitution and the Notifications are the result of the decision taken by the Power Minister at his level. The decision of the individual Minister cannot be treated as the decision of the State Government and the Notifications issued as a result of the decision of the individual Minister which are in violation of the Business Rules are void ab initio and all actions consequent thereto are null and void.
In our opinion the fact that the State Government did not raise these objections in the earlier batch of Writ Ptitions does not disentitle it to such a stand or prevents it from raising its objections based on legal provisions. This contention of the appellants requires to be turned down for yet another reason in that the 1st respondent herein was not a party to the earlier batch of Writ Petitions before the High Court or this Court. Therefore the principles of res judicata or for that matter even the Doctrine of Estoppel will not apply to or operate against him. Further the contention that the Notification dated 1.8.1996 did not create any additional financial liability on the State Government warranting approval by the Cabinet or the compliance of the Business Rules before it was brought into effect deserves to be rejected having regard to the figures placed on record which the High Court has noticed in its judgment. These figures of additional liability likely to be brought on the State by Notification dated 1.8.1996 falsify the statement of the appellants. Therefore the same deserves to be rejected.
The Appellants have not been able to show any infirmity or illegality in the order of the High Court warranting our interference. In the result, civil appeals are dismissed. Parties are directed to bear their own costs.
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2010 (5) TMI 899 - SC ORDER
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... ... ..... der same or separate Tariff entries.” Since in our opinion answer to both the questions stands concluded by a recent decision of this Court in Commissioner of Central Excise, Mumbai v. Rajpurohit GMP India Ltd., 2008 (231) E.L.T. 577 (S.C.), we deem it unnecessary to state the facts. Suffice it to note that the short question arising for consideration is whether cutting and slitting of steel sheets amounts to manufacture. An identical issue came up for consideration of this Court in Rajpurohit’s case (supra). Referring to Circulars Nos. 584/21/2001-CX., dated 7th September, 2001 and 811/8/2005-CX., dated 2nd March, 2005, the Court opined that the process of slitting and cutting of steel sheets does not amount to manufacture. Following the said decision, with which we are in respectful agreement, the afore-noted questions are answered in favour of the assessee and against the revenue. All the appeals stand disposed of in the above terms with no orders as to costs.
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2010 (5) TMI 898 - ITAT DELHI
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... ... ..... h credit, is squarely applicable. Here, the assessee’s explanation that the loan has been obtained from Shri Dinesh Goyal has been found to be not at all satisfactory inasmuch as he has been found to be a man of no means or source of income. He has stated to have given the loan by receiving gifts as he was in “need of” gifts without any corroborative material. His bank account shows a very meager balance. There is deposit of ₹ 2,00,000/- by demand draft and there is immediate issue of cheques to the assessee. Hence, clearly the assessee has failed to discharge the burden cast upon it by the provision of section 68, as has been expounded by the Hon’ble Apex Court in the case of P. Mohanakala (supra). 9. In the background of above discussion, we do not find any infirmity in the order of the ld. CIT(A). Accordingly, we uphold the same. 10. In the result, the appeal filed by the assessee is dismissed. Order pronounced in the open court on 14.5.2010.
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2010 (5) TMI 897 - ITAT AHMEDABAD
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... ... ..... raft provider. The assessee also contended that in view of the large volume of the business, it was also not practically possible to maintain full record of addresses and other details of the parties. In our considered opinion, such explanation of the assessee cannot be accepted in view of the specific provision of law contained in section 68 of the Act. In our considered opinion, when the assessee claims to have received cheque or draft on credit i.e. cash is not immediately given to the cheque or draft provider then the law requires the assessee to prove the nature and source of such credit by establishing identity and genuineness of the transaction. In the above circumstances, we do not find any error in the order of the Learned Commissioner of Income Tax(Appeals). Therefore, this ground of appeal of the assessee is dismissed. 11. In the result, the appeal of the assessee is partly allowed as above. Order signed, dated and pronounced in the Court on 14th day of May, 2010.
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2010 (5) TMI 896 - ITAT CHANDIGARH
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... ... ..... ion passed by the trust of the assessee and claim was allowed u/s 11(2) of the Act. 13. We find that the basis for disallowing the claim u/s 11(2) of the Act was non furnishing the copy of the resolution passed by the trust alongwith the Form No.10, in which the intention of the money accumulated and set apart is clarified. The assessee filed the copy of the said resolution before the CIT(A) and he in turn allowed the claim of the assessee. In the facts and circumstances of the case, we are in conformity with the order of the CIT(A) in allowing the claim of the assessee once the copy of resolution passed by the trustee had been furnished before the CIT(A). The learned DR for the Revenue failed to bring on record any evidence to the contrary. Accordingly, upholding the order of the CIT(A), we dismiss the ground No.(iii) raised by the Revenue. 14. In the result, all the appeals of the Revenue are partly allowed. Order Pronounced in the Open Court on this 25th day of May, 2010.
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2010 (5) TMI 895 - KERALA HIGH COURT
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... ... ..... sion and manner of finalization under Section 17 D has been dealt with in the decision reported in The Hindustan Petroleum Corporation Ltd. Vs. The Assistant Commissioner, Commercial Taxes (2009 KHC 819). The order passed by the Fast Track Team is appealable under Subsection 5 of 17 D, when it has been preferred within a further period of 5 days by depositing the entire liability fixed by the team under Section 17 D. This by itself shows that it has been enacted with an intend to give finality to the proceedings if the same is proceeded and finalized in the manner as specified therein. 3. It being the position, it is never open to the first respondent to have reopen the matter according to his own whims and fancies directing the petitioner to satisfy a higher liability. Ext.P1 impugned order is per se legal and accordingly Ext.P3 is set aside and the Writ Petition is allowed. This will not preclude the respondents if any, course of action is available in accordance with law.
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2010 (5) TMI 894 - ITAT MUMBAI
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... ... ..... e basis of material produced before us in the case of this assessee, there is no good reason to come to the conclusion that the income from sale revenues of advertising time does not belong to the assessee. We leave it at that. 9. For the reasons set out above, we are of the considered view that the Assessing Officer was not quite justified in taxing the income from advertising time sales in India could not be taxed in the hands of the assessee. He ought to have taxed the same in the hands of the assessee company. 10. As regards the other issues raised in this appeal, we have noticed that the CIT(A) has not really adjudicated upon the same. We, therefore, remit the matter to the file of the CIT(A) for fresh adjudication on the specific grievances raised by the assessee on the quantification of taxability of income and other consequences. 11. In the result, the appeal is partly allowed in the terms indicated above. Pronounced in the open court today on 21s t day of May, 2010.
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2010 (5) TMI 893 - CESTAT, BANGALORE
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... ... ..... d they did export the goods for some time. In the absence of any findings as to the eligibility to depreciation, we find that the lower authorities have not considered the case in its entirety. In view of this, the impugned order is set aside and appeal is allowed by way of remand to the adjudicating authority to re-consider the issue afresh, in light of the decided case laws and as regards the eligibility to the depreciation, eligibility to destruction of capital goods and inputs. Without expressing any opinion on the merits of the case, we set aside the impugned order and remand the matter back to the adjudicating authority to re-consider the issue afresh. The adjudicating authority will consider the representation made by the appellant and after following the principles of natural justice, come to a conclusion. 7. Accordingly, appeal is allowed by way of remand. Stay petition also gets disposed off. (Operative portion of this order pronounced on conclusion of the hearing)
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2010 (5) TMI 892 - CESTAT, CHENNAI
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... ... ..... oner (Appeals) rejected the appeal on the ground that the assessees had not challenged the Assistant Commissioners order dated 22.05.1998 which had attained finality and the Superintendents letter directing payment of differential duty was solely based upon the order dated 22.05.1998. Hence this appeal. 2. We have heard both sides. We find that the assessees submission that they were not heard by the Superintendent before he directed them to pay the differential duty of ₹ 1,14,29,086/- is correct. We therefore set aside the impugned order and remit the case for fresh decision on merits to the jurisdictional Range Superintendent, who shall consider the submission of the assessees, as also the decision of Dai Ichi Karkaria cited supra. He shall pass fresh orders after extending reasonable opportunity to the assessees of being heard in their defence. 3. The appeal is thus allowed by way of remand. (Operative portion of the order was pronounced in open court on 04.05.2010)
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2010 (5) TMI 891 - ITAT MUMBAI
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... ... ..... pon the judgment of the Hon’ble Punjab & Haryana High court in the case of CIT vs. Ajain Singh & Co. 253 ITR 630, wherein it is held that mere disallowance of expenditure will not per se amount to furnishing of inaccurate particulars of income. At para 4 page 3 of his order, the first appellate authority rightly held as follows “ Once the explanation of the assessee is not considered false and explanation has been given, the penalty can only be levied if the explanation is not bonafide and full details for the computation of income has not been given by the appellant. It may be noted that Rajasthan High Court decision in 251 ITR 373 has enunciated the principle of bonafide, wherein it has been held that there is presumption that explanation given is bonafide unless proved to be otherwise.” We uphold this finding of the first appellate authority. 8. In the result, the appeal of the Revenue is dismissed. Order pronounced on this 21st day of May, 2010.
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2010 (5) TMI 890 - ITAT AHMEDABAD
Block assessment - undisclosed income - proceedings u/s 158BD - search u/s 132 carried out in the business premises of M/s. Ohm Organizers, Surat on 29.10.1999 - books of accounts and documents seized - HELD THAT:- We admit the additional ground for adjudication in view of the judgment of the Hon’ble Supreme Court in the case of National Thermal Power Corporation Ltd. –vs.- CIT [1996 (12) TMI 7 - SUPREME COURT]. Admittedly, in this case, search u/s 132 was carried out in the business premises of M/s. Ohm Organizers, Surat on 29.10.1999. Certain books of accounts and documents relating to the assessee were also seized. The AO found that certain investment in purchase of flats/ shops were made by the assessee and payment of on-money was made by him to the builder. Thereafter certain inquiries were carried out from the assessee u/s 133(6) by way of notice issued on u/s. 133(6). Further letters were also issued. However, notice u/s 158BD was issued to the assessee on 04.02.2005. In the impugned order, the ld. CIT(A) upheld the legality of action u/s 158BD.
Following the decision in the case of ACIT vs. Vimal Vadilal Shah and vice-versa and others [2010 (5) TMI 889 - ITAT AHMEDABAD], we hold that the block assessment famed in case of the above assessee is not legally valid and therefore is quashed for the reason that notices u/s.158BD was issued in this case long after completion of assessment in the case of person searched i.e. Ohm Developers.
Imposing penalty u/s. 158BFA - HELD THAT:- In quantum appeal filed by the assessee, the assessment framed by the AO is quashed, therefore penalty levied by the AO u/s 158BFA is also quashed.
In the result, both the appeals filed by the assessee are allowed.
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2010 (5) TMI 889 - ITAT AHMEDABAD
Validity of Block assessment proceedings - Undisclosed income of another person u/s 158BD - period of limitation - satisfaction u/s.158BD has not been recorded by AO of the person searched and notices u/s.158BD has been issued much after the closer of block assessment proceedings u/s.158BC of the person searched - HELD THAT:- As held in Saroj Nursing Home [2007 (9) TMI 325 - ITAT LUCKNOW-B] that proceedings u/s.158BD can be initiated on the satisfaction of the Assessing Officer having jurisdiction over person searched to tax undisclosed Income-tax pertaining to third person who is not subjected to search and books of accounts and in other documents were handed over to the Assessing Officer having jurisdiction over such third person but proceedings initiated u/s.158BD of the Act after a period of six years cannot be regarded as valid.
In the case of Shri Vishnubhai R Barot [2009 (12) TMI 987 - ITAT AHMEDABAD] it was held, following the decision of Hon’ble Supreme Court in the case of Manish Maheshwari v [2007 (2) TMI 148 - SUPREME COURT] and Manoj Agarwal. [2008 (7) TMI 446 - ITAT DELHI-A] held that without there being satisfaction recorded prior to completion of assessment of the person searched proceedings so initiated u/s.158BD will not be valid. In that case notice u/s.158BD was issued on 10-06-2004. But searched against Ohm Developers was carried out on 29-10-1999, therefore assessment u/s. 158BD thereof completed after 31-10-2001 could not be held valid.
Following these decisions, we hold that the block assessment famed in case of assessee are not legally valid and therefore are quashed for the reason that notices u/s.158BD were issued in these cases long after completion of assessment in the case of person searched i.e. Ohm Developers.
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2010 (5) TMI 888 - ITAT MUMBAI
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... ... ..... t the AO has also discussed the issue. Since the payment of outstanding wages once has been accepted by the AO in next year; hence, in our opinion no addition can be made u/s 69C of the Act. Apart from that it is seen that it is also not case that the expenditure is bogus or non genuine and the AO has also not examined any of the labourers to support his case and made the high pitch addition. Merely because the labour charges are shown as outstanding that cannot be the ground to make the addition u/s 69C and there is no justification for the same. We have no other option but to delete the same and accordingly do so. 6 Regarding the remaining grounds, the ld counsel of the assessee submitted that considering the smallness of the amount and as per the instructions of the assessee, he is not pressing the grounds and therefore, the same are dismissed as not pressed. 7 In the result, the appeal filed by the assessee is allowed partly. Order pronounced on the 21st, day of May 2010
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2010 (5) TMI 887 - ITAT INDORE
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... ... ..... plea of assessee regarding applicability of local rates to compute built up area. However, since we have accepted the legal contentions raised by the assessee in this regard, hence, we find no reason not to grant a deduction thereon u/s 80IB(10). Accordingly, we accept this ground of the cross objection filed by the assessee and direct the A.O. to grant deduction u/s 80IB as claimed by the assessee. 20. In the result, the cross objection stands allowed. 21. To sum up, the Revenue’s appeal is dismissed and cross objection is allowed. This order has been pronounced in the open court on 16th April, 2010.” No contrary decision was brought to our notice, therefore, keeping in view the submission/admission of the respective parties that the issue is covered by the aforesaid decision, consequently, respectfully following the same, these appeals of the revenue are dismissed. Finally, appeals of the revenue are dismissed. Order pronounced in open Court on 11th May, 2010.
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2010 (5) TMI 886 - ITAT DELHI
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... ... ..... erefore to tax dividend only in the hands of the shareholder.” “6.Here it is noticed that the assessee is not the shareholder in M/s Atma Ram Constructions. It is also noticed that the assessee does not have any substantial interest in M/s Atma Ram Construction Pvt. Ltd. In the circumstances, the addition of the deemed dividend in relation to the transaction of the assessee with M/s Atma Ram Constructions Pvt. Ltd. by invoking the provisions of section 2(22)(e) stands deleted. Consequently, ground No.2 of the assessee’s appeals for both the assessment year stands allowed.” 2.2 As a co-ordinate bench has already taken a view on these grounds and such view has not been reversed by the Hon’ble Jurisdictional High Court, we think it fit to follow the earlier order of the Tribunal for disposing of this appeal. Consequently, both the grounds are dismissed. 3. In result, the appeal is dismissed. 4. This order was pronounced in open court on 06.05.2010.
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