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Showing 141 to 160 of 1498 Records
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2015 (1) TMI 1365 - TELANGANA AND ANDHRA PRADESH HIGH COURT
Maintainability of appeal - Whether the two appeals against the lower revisional Court's acquittal and reversal judgments are not maintainable and this Court cannot sit otherwise against the impugned acquittal revision Judgments, under Section 482 Cr.P.C. and otherwise on merits and with what observations and conclusions? - Held that: - once there is a bar for second revision, it is to consider if appeal won't lie, whether to decide as a proceeding under Section 482 Cr.P.C. - the power of revision to entertain by High Court, even taken away under any of the provisions of Cr.P.C. that can be exercised under Section 482 Cr.P.C. - even revision or appeal is a bar by virtue of any of the specific provisions of Cr.P.C. the High Court's inherent power can be exercised in deciding the matter before it under Section 482 Cr.P.C. within its scope; that is not a bar from what is discussed supra from several and settled expressions of the Apex Court to decide the two appeals on merits by taking the same under Section 482 Cr.P.C. for otherwise not maintainable under Section 378(4) Cr.P.C. or proviso to Section 372 amended Cr.P.C.
The reversal and acquittal judgments of the lower revisional Court by sitting against the conviction judgments of the trial Court are unsustainable and outcome of ill appreciation of facts and law that resulted grave injustice to the complainant-bank and the same is prone to the jurisdiction of this Court by way of appeal under Section 378(4) read with Section 378(1)(b) and (3) and otherwise under Section 372 and its proviso read with Section 2(w)(a) and otherwise within inherent power of this Court saved by the Section 482 Cr.P.C., for this Court to set aside the said revision Court reversal judgments to secure ends of justice being necessary.
The two appeals taken under Section 482 Cr.P.C. from otherwise if not maintainable either under Section 378(4) or under Section 372 amended Cr.P.C. and the lower revision Court's acquittal judgments are set aside by restoring the trial Court's conviction judgments - appeal disposed off.
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2015 (1) TMI 1364 - ITAT MUMBAI
Validity of reopening of assessment - reasons to believe - justification that the assessee purchased shares of other companies - Held that:- Admittedly, there is no material on record to suggest that the assessee purchased and sold shares of Esasr Oil, Jai Corporation, etc. The figure of ₹ 4,18,437/- is not tallying with any material on record which amply prove that the AO had mechanically issued notice under section 148 of the Act. Similar mistake was committed by the CIT(A) by reproducing the grounds of appeal of some other assessee while passing the order, which amply shows that both the authorities below had not applied their minds to the facts of the case. Since the AO issued notice without proper recording of his satisfaction that he has reason to believe that income chargeable to tax had escaped assessment, it is of the firm view that reopening of assessment is bad in law - Decided in favour of assessee.
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2015 (1) TMI 1363 - ITAT. BANGALORE
TPA - comparable selection technique - Held that:- The Assessee focuses on delivering semiconductor solutions for communications to the home, enterprise and mobile markets. Their product portfolio includes: Bluetooth, short-range wireless products for PC, Mobile phones, PDAs, Keyboards, mice and automotive electronics, thus companies functinally dissimilar with that of assessee need to be deselected from final list of comparability.
Computation of deduction u/s.10A - telecommunication charges, consultancy charges, repairs and maintenance and certain other expenses incurred by the Assessee (including expenses incurred in foreign currency) are to be excluded from export turnover on the ground that these expenses (except telecommunication charges) are not incurred in rendering technical services rendered to clients outside India - Held that:- It would be just and appropriate to direct the Assessing Officer to exclude telecommunication charges, consultancy charges, repairs and maintenance and certain other expenses incurred by the Assessee (including expenses incurred in foreign currency), both from export turnover and total turnover, as has been prayed for by the assessee
TDS u/s 195 - Disallowance of interest expenses invoking the provisions of Sec.40(a)(i) - non deduction of tds - DTAA between India and Singapore - Held that:- As rendered in the context of taxation of interest income in the hands of the non-resident and are not in the context of point of time at which obligation to deduct tax at source lies on the person making payment to a non-resident. We agree with the submission of the learned DR that the said decisions are therefore not relevant to the facts of the present case. We therefore hold that disallowance u/s.40(a)(i)of the Act, in the facts and circumstances of the case, is justified. The quantum of sum to be disallowed as we have already stated is to be decided by the AO afresh in view of the discussion on the issue raised in ground no.9 in the earlier part of this order.
Provisions of section 40(a)(ia) - assessee failed to deduct at source and pay tax in respect of payments made to contractors for carrying out work u/s. 194C and in respect of payments for professional services rendered u/s. 194J - Held that:- The addition was made by the AO on the assumption that rate of tax for TDS on Fees for FTS is 10%. The AO grossed up tax deductible of ₹ 53,579 at 10 times and arrived at a figure of ₹ 5,35,790. After deducting this sum of ₹ 5,35,790 from ₹ 9,55,062, the AO arrived at a further disallowance of ₹ 4,22,867. This is shown in the chart given in the earlier part of this order in the last two columns. The AO thus proceeded on a wrong assumption that amount disallowed by the assessee in the return of income u/s. 40(a)(ia) was incorrect, whereas the amount disallowed by the Assessee was correct. It is this addition that is subject matter of dispute between the assessee and Revenue raised in concise ground No.10. According to the assessee, it is a double addition and the figure of ₹ 4,22,867 has been arrived at in the manner set out in the table given in the earlier paragraph of this order.
We have seen the computation of total income in the return filed by the assessee as also in the order of assessment and are of the view that the further disallowance of ₹ 4,22,867 u/s. 40(a)(ia) is uncalled for, as the assessee has already in its computation of total income, disallowed the correct figure of ₹ 9,55,060 to be disallowed u/s. 40(a)(ia) and a further disallowance of ₹ 4,22,867 is without any basis. The said addition is therefore hereby deleted. Concise ground No.10 is allowed.
Disallowance under section 40(a)(ia) & 40(a)(i) - Upholding the action of providing relief u/s 10A on the profits of business in returned income instead of assessed profits (i.e., after adjustments are made to the profit on account of short and non-deduction of TDS - Held that:- The action of the AO was not justified. The Tribunal held that under s. 80AB the income that is derived from the eligible business must be computed in accordance with the provisions of ss.30 to 43D, as provided in s. 29. Sec.29 provides that the income chargeable to tax under the head “Profits and gains of business” “shall be computed in accordance with the provisions contained in s.30 to 43D”. The Tribunal held that unquestionably, s. 40(a)(ia) is a section falling between ss. 30 to 43D and therefore effect must be given to the same in computing the profits and gains derived from the eligible business, which in that case was a housing project. The Tribunal further held that while giving effect to the computation provisions contained in ss. 30 43D one should not be bogged down by the theory that the disallowed expenditure cannot be considered as profits ‘derived” from the housing project or as “operational profits. The above ruling of the Tribunal, in our view, would squarely apply to the present case also. Similar is the ruling rendered by the Hon’ble Gujarat High Court in the case of Keval Construction (2013 (7) TMI 291 - GUJARAT HIGH COURT).
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2015 (1) TMI 1362 - ALLAHABAD HIGH COURT
Delay in condonation in filing revision - Held that: - The work of no department can be left unattended only for the reason that there is shortage of employees or that the officer has not been posted - the delay in filing the revision goes totally unexplained - revision dismissed, delay being not condonable.
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2015 (1) TMI 1361 - ITAT MUMBAI
Disallowance of provision for Leave Encashment - Held that:- As decided in assessee's own case restored the matter to the file of AC with a direction to adjudicate the same as per decision of Hon'ble apex Court in the case of Exide Industries Ltd (2008 (9) TMI 921 - SUPREME COURT)
Addition u/s 14A - disallowance on account of interest - Held that:- As observed that assessee’s investment in shares and securities from which assessee has earned tax free income is much less than the share capital and reserve and surplus. Therefore, the contention of the assessee is required to be accepted and it is held that no disallowance on account of interest was called for. Accordingly, addition of ₹ 2,69,620/- is deleted and disallowance is sustained only for a sum of ₹ 2,00,484/-. This ground is partly allowed.
Deduction on account of provisions of warranty - Held that:- The deduction claimed by the assessee on account of the provisions for warranty is concerned, that is fully covered in favour of the assessee and against the revenue by the judgment of the Hon’ble Supreme Court in the case of Rotork Controls (P) Ltd (2009 (5) TMI 16 - SUPREME COURT OF INDIA)
Additional depreciation on Fan & Air Conditioners - claim disallowed by the Assessing Officer for the reason that they are not related to manufacturing activities - Held that:- The finding of the fact by the CIT (A) is that the Fans and Air Conditioners on which disallowance has been made are installed in the factory premises and these findings are not dislodged by the Revenue. In this view of the situtation, we see no infirmity in the deletion of disallowance and we decline to interfere - Decided in favour of the assessee
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2015 (1) TMI 1360 - ITAT BANGALORE
Transfer pricing adjustment - selection of comparables - Held that:- Assessee being a software development company,thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Deduction u/s 10A computation - Held that:- Vis-à-vis the expenditure of foreign travel we are of the opinion that the definition of “export turnover” given in clause-iv of Explanation to Section 10A of the Act, does not give room to the interpretation sought by the assessee. Assessee has no case that such expenditure was not incurred in foreign exchange for providing technical services outside India. However, its claim that foreign travel expenditure as well as telecommunication expenses once excluded from the export turnover have also to be excluded from the total turnover, while computing the deduction u/s 10A of the IT Act, is acceptable in view of the decision of the Honble jurisdictional High Court in the case of CIT Vs M/s Tata Elxsi Ltd., (2011 (8) TMI 782 - KARNATAKA HIGH COURT). We therefore, direct the AO to exclude these amounts from the total turnover, while computing the eligible deduction u/s 10A of the Act.
Claim of expenditure relating to lease rental income - suh rental income was considered as part of income from other sources - Held that:- We find from the records that assessee had made such a claim before the DRP in its submissions. If the assessee had incurred expenditure for earning lease rental income which was considered under the head” Income from other sources” then the expenditure incurred by it for earning such income will have to be allowed under section 57(iii) of the Act. However, the claim of the assessee needs to be examined by the AO. We are of the opinion that the issue has to be considered by the AO and appropriate relief to be given to the assessee, if it is eligible according to law. Ground is allowed for statistical purposes.
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2015 (1) TMI 1359 - PUNJAB & HARYANA HIGH COURT
Denial of Duty Entitlement Pass Book (DEPB) credit - public notice issued on 21-9-1998 - The impugned order states that the notification would be applied only prospectively and cannot be availed for the petitioner who is claiming the benefit for its exports between May 1998 to July 1998 - Held that: - The petitioner was only asking for rates as prevalent for the earlier period and the amount claimed at ₹ 7,61,423/- was on the rates that were prevalent at the relevant time. The doubt created that such a benefit would be applicable only to non-finished products was quite unnecessary for the Entry 71 does not say any more than the description of the product. The denial of benefit was erroneous and the impugned order cannot be supported - petition allowed - decided in favor of petitioner.
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2015 (1) TMI 1358 - SC ORDER
Calculation under export obligation - Benefit of Policy circular No.8 (RE-98)/98-99 - impact of foreign exchange fluctuation - devaluation of rupee - Export obligation against EPCG licence - the decision in the case of Parasrampuria Synthetics Ltd. Versus UOI & Another [2013 (10) TMI 903 - DELHI HIGH COURT] contested - Held that: - The petitioner seeks to withdraw the Special Leave Petition reserving liberty to approach the High Court by way of review petition - SLP dismissed with the liberty sought for.
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2015 (1) TMI 1357 - SUPREME COURT
Offence registered under the Prevention of Corruption Act - Testimony of a hostile evidence - Held that:- In the instant case, PW-8, who was a member of the raiding party had sent the report to the police station and thereafter carried the formal investigation. In fact, nothing has been put to him to elicit that he was anyway personally interested to get the appellant convicted.
Even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence.
A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross-examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross-examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the public prosecutor this witness has accepted about the correctness of his statement in the court on 13.9.1999. He has also accepted that he had not made any complaint to the Presiding Officer of the Court in writing or verbally that the Inspector was threatening him to make a false statement in the Court. It has also been accepted by him that he had given the statement in the Court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13.9.99 after going through and admitting it to be correct. It has come in the re-examination that he had not stated in his statement dated 13.9.99 in the Court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused. He had also not stated in his said statement that the accused and witnesses were taken to the Tehsil and it was there that he had signed all the memos.
Reading the evidence in entirety, his evidence cannot be brushed aside. The delay in cross-examination has resulted in his pre-varication from the examination-in-chief. But, a significant one, his examination-in-chief and the re-examination impels us to accept the testimony that he had gone into the octroi post and had witnessed about the demand and acceptance of money by the accused. In his cross-examination he has stated that he had not gone with Baj Singh to the vigilance department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of entire evidence in examination-in-chief and the re-examination. The evidence of PW6 and PW7 have got corroboration from PW8. He in all material particulars has stated about the recovery and proven the necessary documents pertaining to the test carried with phenolphthalein powder. The fact remains that the appellant’s pocket contained phenolphthalein smeared currency notes when he was searched. It is apt to take note of the fact that the currency notes that have been recovered from the right side of the pant pocket were actually prepared by PW8 by smearing them with phenolphthalein powder. The appellant was caught red-handed with those currency notes.
Hence, we are inclined to hold that the learned trial Judge and the High Court have appositely concluded that the charges leveled against the accused have duly been proven by the prosecution. It is not a case that there is no other evidence barring the evidence of the complainant. On the contrary there are adequate circumstances which establish the ingredients of the offences in respect of which he was charged.
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2015 (1) TMI 1356 - ITAT MUMBAI
Revision u/s 263 - Unexplained credit - bogus sales - Held that:- A perusal of the assessment order reveals that the AO had given a categorical finding that the total credit in the assessee’s various bank accounts was amounting to ₹ 2122,27,57,495/- out of this a sum of ₹ 856,64,49,533/- had been treated as bogus sales for which sales bills were found and were duly impounded. However, the remaining sum of ₹ 1388,09,01,411/- had remained unexplained in spite of various opportunities given to the assessee. The AO had treated the same as unexplained income of the assessee and decided to bring it into tax in various assessment years. He also worked out the additions for different assessment years. However, he made the said additions on protective basis observing that the assessee had not been able to establish the source of these credits. He, however, made the addition of 5% of the said amount as commission income of the assessee on substantive basis. A perusal of the above findings itself reveals that the order of the AO was erroneous.
In the absence of any evidence on the file as to source of the credits of the amount in question in the various bank accounts of the assessee, the AO had treated the said amount as unexplained income of the assessee. Once the AO had treated so, the AO was required to make the addition of this amount on substantive basis. Even without making the addition of the amount in question on substantive basis in any other persons’ account, the AO could not have made the addition of the amount on protective basis in the assessee’s account.CIT was justified in holding that the order of the AO was not only erroneous but also prejudicial to the interest of the Revenue. - Decided against the assessee.
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2015 (1) TMI 1355 - CESTAT BANGALORE
Refund claim - purchase of flats in the residential complex during the period prior to 01.07.2010 when the amendment was made to the law that purchase of flats by individual owner of residential complex also leviable to service tax - Learned counsel submits that since the Tribunal has already passed Final Order and remanded the matters to the original authority in line with the Final Orders passed by this Tribunal Nos. 21349 to 21469/2014, these two matters also can be remanded to the original adjudicating authority for fresh consideration - Held that: - matters are remanded to the original adjudicating authority to consider the refund claim afresh in accordance with law - appeal allowed by way of remand.
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2015 (1) TMI 1354 - GUJARAT HIGH COURT
Reduction of the Preference Share Capital - Held that:- Having perused the petition and more particularly the reasons given in support of the proposed reduction, this court is of the view that there is no reason not to confirm the proposed action of the petitioner to reduce its capital.
The form of the minute proposed vide Para 11 of the Petition to be registered under section 103(1)(b) of the Companies Act is hereby approved and confirmed.
The petitioner is directed to publish the Notice of Confirmation of Reduction of Capital and approval of the Minutes in the Ahmedabad editions of the English daily “Indian Express” and the Gujarati daily “the Jansatta” within 14 days of the registration of the order with the Registrar of Companies.
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2015 (1) TMI 1353 - PUNJAB AND HARYANA HIGH COURT
Scheme of amalgamation - dispensation of the convening of meetings of the Equity Shareholders, secured and unsecured creditors of the petitioner companies - Held that:- As 100% of equity shareholders and unsecured creditors of the the petitioner companies have given their consent to the Scheme of Amalgamation, hence, the prayer is for dispensation of their meetings.
The petitioner companies have confirmed that there are no investigations or proceedings pending against it under Sections 235 to 251 of the Act.
In this view of the aforesaid factual matrix, when all the equity share holders and unsecured creditors of the petitioner companies have consented to the Scheme of Amalgamation, convening of their meetings are ordered to be dispensed with. There is no secured creditor of the Petitioner companies, hence, no meeting is required.
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2015 (1) TMI 1352 - ITAT, GUWAHATI
Service of notice - case of assessee is that notice u/s 143(2) of the Act was not served on him before passing the order u/s 153A of the Act - Held that: - the FAA held that the assessee had participated in assessment proceedings, that as per the provisions of section 292BB the assessment made by the AO had to be held valid assessment even if there was non-service of notice as per the provisions of the Act - there is no proof of service of notice allegedly issued by the AO u/s. 143(2) of the Act. In these circumstances, the order passed by the AO for the year under consideration was invalid order and not sustainable in the eyes of law.
Application of Section 292BB of the Act - Held that: - the section do not cure the virus of non-issuance of the notice u/s 143(2) of the notice especially when the assessee had raised objection before completion of assessment proceedings.
In absence of service of notice issued u/s. 143(2) of the Act the order passed by the AO were not maintainable - assessment held as invalid - appeal dismissed.
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2015 (1) TMI 1351 - MADHYA PRADESH HIGH COURT
Oppression and mismanagement - maintainability of the Company Petition - Held that:- The appellants are questioning the maintainability of proceedings under Section 397-398 of the Companies Act on the ground that the dispute between the parties has been settled on the basis of the arbitration award dated 31.7.2014 whereas the appellants themselves have questioned the said award by filing an application under Section 34 of the Arbitration and Conciliation Act. Respondents has drawn the attention of this Court to the grounds on which the appellants have challenged the award and has pointed out that the award has been challenged on numerous grounds and some of the grounds support the reasoning assigned by the CLB rejecting in the impugned order. Undisputedly the award has not attained finality and the grounds raised by the appellants in the application under Section 34 of the Arbitration and Conciliation Act reflect that the entire award is under challenge on numerous grounds.
Under Section 397-398 of the Companies Act, the tribunal/CLB has power to grant relief in case of oppression and mismanagement of the affairs of the Company. The distribution of the assets in terms of the award has not taken place, therefore, in the facts of the present case the jurisdiction of the Company Law Board will not cease on the passing of the award.
So far as the reasons which have been assigned by the Company Law Board in the impugned order are concerned, the question formulated by this Court is about the sustainability of those reasons and not the perversity of any finding recorded by the CLB while assigning those reasons. If there is no commonality of parties and if respondent No.1 Company is not a party to the agreement, then the arbitration agreement would not have any effect on the pending proceedings under Section 397-398 in respect of the affairs of respondent No.1 Company. If the said conclusion on fact about commonality of parties is incorrect, then it would be open to the appellants to address the CLB on this aspect of the matter at the time of final hearing of the application, since the CLB in the impugned order itself has stated that the effect of the arbitration agreement would be seen at the time of final disposal of the petition. Even if the reason assigned by the CLB about entering into the alleged arbitration agreement during the trial of the case may not be sustainable, that would not effect the final conclusion arrived at by the CLB on account of the other reasons and specially the fact that the arbitration award has not attained finality and also considering the different scope of two proceedings. Appeal dismissed.
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2015 (1) TMI 1350 - MADHYA PRADESH HIGH COURT
Appeal under Section 10-F of the Companies Act, 1956 - Held that:- Observer-cum-facilitator is entitled to ensure that the sale proceeds received from the sale of the Company assets are appropriated towards discharge of the genuine liability of the respondent No.1 Company. Since the Observer-cum-facilitator is a retired Hon'ble Judge of this Court, therefore, the said observation made by the Company Law Board cannot be doubted. In respect of the prayer for forensic audit, the Company Law Board has rejected the prayer noting that such a prayer does not arise at this stage, meaning thereby it is open to the appellants to file an appropriate repeat application in this regard at the appropriate stage.
Since the appellant has the liberty to pray for the forensic audit at the appropriate stage, therefore, such a prayer can be made by the appellant again along with the prayer for forensic audit because the said prayer has not been examined by the Company Law Board and Company Law Board has observed that interim relief cannot be sought by the appellant in piecemeal. The issues which the appellant is raising before this Court are factual issues and the appeal does not involve any substantial question of law requiring consideration under Section 10-F of the Companies Act.
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2015 (1) TMI 1349 - CESTAT, CHENNAI
Smuggling - export of sandalwood chips - Certificate of origin of the goods produced by the appellants was fake and fabricated - Held that: - Perusal of the grounds of appeal and pleadings of the appellants in the appeal memorandum, no where discloses that the certificate produced by it was genuine - There is nothing on the record to show that the appellant has not defraud customs. Modus operandi of the appellants exhibits that it had a predetermined mind to defraud Revenue - appeal dismissed - decided against appellant.
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2015 (1) TMI 1348 - GUJARAT HIGH COURT
Disallowance of the expenses for scientific research u/s.35(2AB) - Held that:- Appellate tribunal has not erred in law in holding that the expenses incurred outside the approved R & D facility are also eligible for weighted deduction u/s 35(2AB). See CIT vs. Cadila Healthcare Limited [2013 (3) TMI 539 - GUJARAT HIGH COURT]
Disallowance of interest u/s 36(1)(iii) - interest free advances given - ITAT deleted the addition - Held that:- Tribunal has relied upon the decision of this Court in the case of CIT vs. Raghuvir Synthetics Limited (2013 (7) TMI 806 - GUJARAT HIGH COURT) and has allowed the appeal to that extent in favour of the Assessee. When the question is already covered by the above referred decision of this Court, we do not find that any substantial question would arise for consideration, as canvassed.
Disallowance of depreciation on building and plant and machinery - the Assessee has not produced any cogent evidence regarding use of the said plant purchased - ITAT allowed claim - Held that:- The question is already covered by the decision of this Court in the case of ACIT vs. Ashima Syntex Limited [2000 (8) TMI 22 - GUJARAT High Court] we do not find that such question can be considered as substantial question of law, which may arise in the present appeal, as canvassed.
Appeal admitted on (D), (E), (F) &(G) being substantial questions of law.
(D) Whether the Appellate tribunal has substantially erred in law in deleting the addition of ₹ 52,59,803/- in calculation of adjusted book profit for the purpose of MAT considered as towards provision for doubtful debt and diminution in the value of investment relying on the decision of coordinate Bench in the case of ACIT vs. Vodafone Essar Gujarat Limited ?
(E) Whether the Appellate tribunal has substantially erred in law in deleting the addition of the provision for diminution in value of asset despite amended provisions of Clause (i) inserted in Explanation-I by Finance Act, 2009 w.e.f. 1.4.2001 under which the provisions for diminution in the value of any assets needs to be added back ?
(F) Whether the Appellate tribunal has substantially erred in law in directing to reduce the prior period expenses of ₹ 23,27,520/- for the computation of book profits u/s 115JB of the Act ?
(G) Whether the Appellate Tribunal has substantially erred in law in deleting the addition of ₹ 64,13,532/- quantified as disallowance expenditure u/s 14A, despite the specific provisions of Clause (f) of Explanation- I to Section 115JB and when the issue of disallowance u/s 14A under regular computation was restored to the CIT(A) ?
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2015 (1) TMI 1347 - ITAT GUWAHATI
Assessment order passed under section 143(3)/147 validity - barred by limitation of time u/s 153 - period of limitation - Held that:- Admittedly, in this case, notice u/s. 148 has been issued on 31.5.2002. Keeping in view the provisions of section 153(2) the assessment order should have been passed on or before 31.3.2004. However, assessment proceedings were stayed by the Hon'ble Jurisdictional High Court on 16.3.2004, which was vacated on 16.3.2011 when the writ petition filed by the assessee was dismissed. Admittedly, after 26.5.2011, there was no stay of proceedings before the AO.
Thus, the period from 16.3.2004 to 26.5.2011 has to be excluded as per clause (ii) of Explanation (1) to Section 153 of the Act for the purpose of computing the period of limitation. If the above stay period is excluded, the period available for making the assessment order on 26.5.2011 with the AO was less than 60 days, the time limit for making the assessment shall be extended to 60 days i.e. upto 25.7.2011 as per proviso to Explanation (1) of Section 153 of the Act. Admittedly, in this case, the AO has passed the assessment order on 10.10.2011 i.e. beyond 60 days and the order passed by the ld CIT(A) is perfectly correct and, therefore, deserves to be confirmed. Accordingly, we confirm the order of ld CIT(A) in holding that the assessment order passed by the AO is barred by limitation as provided in explanation (1) (ii) to Section 153 of the Act and he was fully justified in annulling the assessment order dated 10.10.2011 passed by the AO.
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2015 (1) TMI 1346 - CESTAT, NEW DELHI
Demand of duty - excesses and shortages of stock - Held that: - It is well settled principle that duty is to be demanded by the manufacturer/producer of the goods - Admittedly in this case appellant is not the manufacturer of the goods and is only a registered dealer and it is not the allegation that appellant has procured the goods clandestinely without payment of duty - appeal allowed - decided in favor of appellant.
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