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Showing 41 to 60 of 1904 Records
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2016 (12) TMI 1867 - ITAT MUMBAI
Computation interest payable to it u/s 214, 244 & 244A - HELD THAT:- Since the relevant assessment under consideration is assessment year 1984-85, we do not find any infirmity in the order of CIT(A) for directing the AO to compute interest u/s.214 and 244 and not u/s.244A of the IT Act. Accordingly, we confirm the action of the CIT(A) in this regard.
Grievance of the assessee in the A.Y.1984-85 pertains to applicability of provisions of Section 214(1A) for allowing interest on refunds - AO declined interest u/s.214(1A) on the plea that amendment was brought w.e.f. A.Y 1985-86, therefore, no interest was to be allowed in the A.Y.1984-85. CIT(A) confirmed the order of AO and assessee is in further appeal before us - HELD THAT:- Issue is squarely covered by the decision of Hon’ble Bombay High Court in the case of Ultramarine & Pigments Ltd [2005 (12) TMI 69 - BOMBAY HIGH COURT] wherein the Hon’ble High Court held that even though sub-section 1A was introduced in Section 214 by Taxation Law (Amendment)Act, 1984 w.e.f.1.4.1985, the same would be applicable to all the pending cases. Taxation Laws (Amendment) Act, 1984 is procedural in nature and, therefore, it will apply to all the pending actions. This being so, sub-section (1A) which was introduced in section 214 will apply to the petitioner’s case, for the assessment year 1982-83.
Respectfully following the above decisions of Hon’ble Bombay High Court, we do not find any merit in the order of the lower authorities for declining the claim of interest u/s.214(1A) for the assessment year 1984-85 under consideration.
Rate of interest payable as per the provisions of Section 214/244 - We have considered rival contentions and found that the CIT(A) had held that even though the provisions of section 214/244 were applicable the rate of interest given in 244A has to be considered for grant of interest on refund. Since the provisions of section 214/244 has not been repealed, therefore, the rate of interest as given in the said sections i.e., Section 214/244 in the respective years should only be applied. In view of the above, we direct the AO to allow interest u/s.214/244, as per the rate prevailing in the respective assessment years.
In the assessment year 1984-85, 1985-86 and 1987-88, the assessee has not given full credit for the TDS/DITR while computing net tax payable/refundable and interest thereon. In the interest of justice, we restore this ground back to the file of the AO to verify the same and for deciding the issue afresh as per law. We direct accordingly
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2016 (12) TMI 1866 - ITAT MUMBAI
Disallowance of bad debts written off - Admission of additional supporting documentary evidences - HELD THAT:- As additional evidence as filed by the assessee has substantial bearings on the issue involved and raised by the assessee. We, therefore, in the interest of justice inclined to admit the same. We further find that these evidences are required to be examined and evaluated at the end of the AO. We, therefore, set aside the order of the ld.CIT(A) and restore the issue to the file of the AO for appreciation of evidences as may be filed by the assessee and adjudication of the issue denovo as per facts and law after allowing reasonable opportunity of hearing to the assessee.
Levy of interest u/s 234C - non considering the computation furnished by the assessee evidencing the fact that interest levied u/s 234C not be charged - HELD THAT:- As assessee has fully paid the advance tax on the basis of the returned income as per the income tax return as per the provisions of the Act. We, therefore, find merit in the submissions of the ld. Sr. Standing Counsel qua non charging of interest u/s 234C of the Act and accordingly restore the matter to the file of AO with a direction to the AO to examine the issue on the basis of facts of the case and decide the issue accordingly. This ground is allowed for statistical purposes.
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2016 (12) TMI 1865 - ITAT BANGALORE
Deduction u/s 54F - claim denied as genuineness of the transactions not proved - onus to prove - whether the assessee is eligible for exemption under section 54F in view of the fact that the husband of the assessee released the property in favour of the appellant, whether such release is acceptable under the law? - HELD THAT:- The onus lies on the assessee to prove beyond doubt the transaction entered by the assessee and her husband as genuine. The very fact that the transaction is between the wife and husband had raised the eye brows of the AO about the genuineness of the transactions. The transaction is perhaps intended to avoid the tax liability in the hands of the assessee.
The release deed executed by her husband is not registered. The onus lies on the assessee to prove that the transaction was a genuine transaction by furnishing the details of actual date of payment of consideration to her husband towards relinquishing his share of right in the property - even after the relinquishment deed, the assessee along with her husband entered jointly into a lease agreement dated 09.01.2008 with Shell Technology India (P) Ltd. This goes to prove that the release deed is not actually intended to be acted upon - appellant is not entitled to any deduction under section 54F as she has failed to prove beyond doubt that the assessee acquired the new house by the sale proceeds of the original assets sold. Since we held that the assessee had not acquired any asset, the other aspects are considered to be irrelevant and does not require any adjudication. - Decided against assessee.
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2016 (12) TMI 1864 - SUPREME COURT
Maintainability of suit - benami property - ownership of the suit property in question - Possession of property - parties are related to each other - restraint on permanent injunction from interfering with the suit property.
Ownership of the suit property in question - HELD THAT:- There is no dispute that, in the revenue records property stood in the name of Vassudev Govekar and not Jagannath Govekar. The first appellate court rightly held that the plea with regard to the real owner of the property being Jagannath Govekar could not be gone into as it was barred by the provisions of Section 4(2) of the Benami Act, Though we do not find any merit in the arguments of the Appellants that the Benami Act is not applicable, in any case there is hardly any material produced by the Defendants to support that real owner was Jagannath Govekar. This claim is made only on the ground that it is Jagannath Govekar who had got the suit property acquired in the name of his son Vassudev Govekar. That by itself would not make Jagannath Govekar as the owner of the suit property.
Possession of goods - whether the suit was not maintainable in the absence of any relief qua possession? - HELD THAT:- The case made out by the Plaintiffs is that when Plaintiff Nos. 1, 3 and 5 visited the suit property on December 30, 2006 at about 5:00 p.m., they found that the 'suit house' had been demolished by the Defendants on which they were carrying a new construction. In the light of these pleadings, the Plaintiffs sought the relief of mandatory injunction seeking demolition of the construction carried out by the Defendants on the suit property bearing Survey No. 251/2 as it was illegally put up by the Defendants on Plaintiffs' land. The matter is to be examined in this hue and, therefore, the argument that relief for possession should also have been sought is clearly untenable - there are no merit in these appeals, which are accordingly dismissed with costs.
Appeal dismissed.
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2016 (12) TMI 1863 - GAUHATI HIGH COURT
Principles of natural justice - case of petitioner is that the petitioner’s prayer for grant of eligibility certificate under Industrial Policy of Assam, 2008 has still not been considered - HELD THAT:- Without expressing any opinion on the merit of the case of the petitioner, the writ petition is disposed of by directing the Principal Secretary to the Government of Assam, Industries & Commerce Department, Dispur to dispose of the representation of the petitioner dated 03.12.2013 (Annexure-IX of the writ petition) in accordance with law by a speaking order within a period of 2(two) months from the date of receipt of a certified copy of this order.
Petition disposed off.
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2016 (12) TMI 1862 - ITAT MUMBAI
Validity of proceedings initiated u/s 153A - whether the proceedings under section 153A, have been validly initiated on the basis of incriminating material unearthed as a result of search revealing undisclosed income ? - HELD THAT:- On a careful perusal of the impugned assessment order, we have not come across any observations by the AO relating to detection of undisclosed income as a result of incriminating material found during the search. In fact, to put it correctly, the AO in the entire assessment order has not referred to a single piece of incriminating material found and seized during the search and seizure operation which could have been remotely connected to the so called undisclosed income assessed by the AO save and except the statement recorded from a director of a newly set–up company. In fact, on a perusal of the said statement also, we do not find in any way it is having any reference to the assessee. In fact, to a specific query from the bench to the learned Departmental Representative, to point out the specific incriminating material on the basis of which the addition has been made, the learned Departmental Representative fairly submitted, in the assessment order there is no reference to any such incriminating material. Thus, prima–facie it is established that there is no incriminating material unearthed as a result of search which could reveal undisclosed income of the assessee.
In the present case, admitted factual position is, there is no incriminating material found at the time of search and seizure operation which could demonstrate that the money received towards share application and allotment of shares is not genuine. In the aforesaid circumstances, the initiation of proceedings under section 153A, in our view, is not permissible since these issues are subject matter of original assessment proceedings, completed before the date of search. - Decided in favour of assessee.
Addition u/s 68 - unexplained cash credit at the hands of the assessee represents share application money received from Preksha Exports Pvt. Ltd. - HELD THAT:- As treated as unexplained cash credit at the hands of the assessee represents share application money received from Preksha Exports Pvt. Ltd. We have noted, Preksha Exports Pvt. Ltd. is an income tax assessee and not only it has reflected the investment in share application money, in its books of account but also in the financial statements submitted along with return of income. The concerned party has also confirmed the investment in the share application money. In fact, the same Assessing Officer has completed assessment in case of Preksha Exports Pvt. Ltd. without making any corresponding addition in case of the said party. That being the case, in our considered opinion, the addition made at the hands of the assessee cannot be sustained. Accordingly, we delete the same. Ground no.1 is allowed.
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2016 (12) TMI 1861 - SC ORDER
Rate of Tax - Manufacture and sale of Lizol (floor cleaner), Harpic (toilet cleaner) and Mortein mosquito repellents – Classification - Entry 88 or Entry 20 to Schedule IV – Interpretation of Statute - Andhra Pradesh Value Added Tax Act, 2005 - HELD THAT:- The impugned judgment and order of the High Court need not not be interfered.
Petition dismissed - The question of law that has been raised in these special leave petitions, in case arises in future from a different judgment, it shall be addressed to on merits.
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2016 (12) TMI 1860 - DELHI HIGH COURT
Exemption u/s 11 - Charitable activity u/s 2(15) - HELD THAT:- The assessee claims to be engaged in the maintaining of national/international youth centres at suitable centres in India for the benefit of foreign students and youth delegates as well as individuals visiting India and the assessee claims to be engaged, on non-profit basis, in establishing and running schools and regional centres for students and holds seminars and conferences. For the relevant years, the assessee reported receipt of some amounts towards fees for conducting various activities.
Assessing Officer (AO) felt that since the assessees were engaged in providing commercial activity, the proviso to Section 2(15) was attracted. The ITAT ruled - on the basis of this Court’s judgments in India Trade Promotion Organization v. DGIT [2015 (1) TMI 928 - DELHI HIGH COURT] and Institution of Chartered Accounts [2013 (7) TMI 205 - DELHI HIGH COURT] that the mere circumstance of collection of such amounts did not result in the assessees losing their essential character of being established for charitable purposes. No substantial question of law
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2016 (12) TMI 1859 - ITAT CHANDIGARH
Addition made to taxable income of the assessee by treating the interest accrued on FDR's as income from other sources - Whether the' assessee's business was in a pre-operational stage and the interest had been rightly reduced from the capital work in progress.”? - HELD THAT:- Issue decided in favour of revenue as relying on assessee's own case [2015 (6) TMI 1221 - ITAT CHANDIGARH] - Decided against assessee.
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2016 (12) TMI 1858 - ITAT MUMBAI
Reopening of assessment u/s 147 - reason to believe - HELD THAT:- Nothing has been recorded by the AO in the ‘Reasons’ about any failure on the part of the assessee to disclose fully and truly all material facts necessary for the impugned assessment. It has nowhere been mentioned by him that which fact or material was not disclosed by the assessee. Thus, vital link between ‘Reasons’ and his findings has not been established by him. This vital link is the safeguard against arbitrary reopening of the concluded assessment.
The ‘Reasons’ recorded cannot be supplemented by way of further observations in the assessment order or in any other manner. The validity of the reopening can be examined on the basis of ‘Reasons’ alone and not in supplementary material. Thus, taking into account all the facts and circumstances of the case, we find that the reopening has been done without complying with the mandatory jurisdictional condition precedent as stipulated in first proviso to section 147. Thus, reopening is invalid on this ground.
Reopening as based upon change of opinion of the AO - deduction u/s 80IA available to the Mithapur power plant - HELD THAT:- Perusal of reasons recorded by the AO reveals that as per belief of the AO, deduction u/s 80IA available to the Mithapur power plant of the assessee was wrongly determined in the original assessment proceedings completed u/s 143(3) on 10-01-2005 for impugned assessment year i.e. AY 2002-03.
As noted by us on the basis of information provided by both the parties to us that the year before us, i.e. A.Y 2002-03 is the second year of claiming the benefit of deduction u/s 80-IA on the income of new power plant located at Mithapur. The deduction was claimed for the first time in the year AY 2001-02. The assessment order was framed u/s 143(3) for AY 2001-02 vide order dated 29-03-2004 wherein the claim of the assessee was examined in detail and thereafter only the benefit of deduction was allowed after re-computing the same as was allowable to the assessee.
It is clear that requisite material was obtained by the AO which was duly considered and only thereafter, the benefit of deduction was allowed to the assessee as was available in the assessment order passed u/s 143(3). Under these circumstances, it is not legally permissible to reopen the case merely reappraising same material and reviewing the decision already taken by the AO. It is well settled law that reopening based upon change of opinion of the AO is not permissible in the eyes of law. Thus, on this ground as well, the reopening has been rightly held as invalid by Ld. CIT(A).
We would like to make reference to a recent judgment of Hon’ble Delhi High Court in the case of Principal CIT vs Samcor Glass Ltd [2015 (12) TMI 773 - DELHI HIGH COURT] wherein it was held by the Hon’ble High Court that where the reopening is done beyond 4 years and original assessment was done u/s 143(3) and yet, the ‘Reasons’ for reopening did not categorically state that there was failure by the assessee to disclose any material particulars on the basis of which there were reasons to believe that income had escaped assessment, then, the reopening would be without authority of law.
We believe that concerned Chief Commissioners have already taken requisite steps under guidance from the CBDT to formulate and issue the requisite set of instructions to the AO so as to enable the AOs to reopen the cases only in desired and deserving cases so as to build up the faith of the taxpayers on the working of Income-tax department which will, in turn, increase voluntary compliance by the taxpayers. Decided against revenue.
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2016 (12) TMI 1857 - PUNJAB AND HARYANA HIGH COURT
Registration of FIR - EDC+IDC rates - violation of Rules and specifically Clause 7 that they have given advertisement before the sanctioning of the plan - Sections 420 and 406 IPC - HELD THAT:- The dispute between the parties is squarely covered under the Haryana Development and Regulation of Urabn Areas Act, 1975. As there is specific Act dealing with the offences committed under the Act, therefore, offences under Sections 420 or 406 IPC are not made out in this case. Furthermore, there is nothing on the record to show that the intention of the accused was to cheat the complainant. Even, it is not the case of the complainant that money was taken but no work was done. As argued, flats were not constructed within time and possession was not handed over within time, for which, as per the above-said Act, the complainant is entitled to other remedies but in no way, offence under Section 420 or 406 IPC is made out.
The copy of the agreement has been placed on the record. In the agreement, it is written that IDC shall mean Infrastructure Development Charges as recoverable under the Provisions of the Act and shall include interest thereon/carrying cost of the Company, at the rate charged by the DTCP or 18% per annum, whichever is higher.
The registration of the FIR in the present case is nothing but abuse of process of law and amounts to miscarriage of justice - petition allowed.
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2016 (12) TMI 1856 - ITAT BANGALORE
Interest on FDs - as per DR definitely it is an income earned by the assessee but it has not disclosed it in its return - HELD THAT:- It is clear from the above that as per TDS certificates , the assessee has earned an interest income of ₹ 1,01,72,545/-but it has admitted ₹ 87.78 lakh only as interest income in its Return. Thus, this issue requires verification & reconciliation and hence we set aside this issue to the AO . The AO after giving adequate opportunity to the assessee would decide this matter in accordance with law.
Negative cash balance - CIT(A) after considering normal trading pattern of the assessee prior and subsequent to March, the remand report and the purchase statement obtained from PEC Ltd etc held that if purchases and sales were entered as and when they took place, the negative cash balance would not have arisen - HELD THAT:- It is clear from the above that the CIT (A) has examined this issue and drawn due conclusion. The Revenue has not brought any material to assail such conclusion and hence we confirm the decision of the CIT (A).
Undisclosed turnover - CIT (A) has examined the issue and found that the turnover made by M/s Spectra Investments on behalf of the assessee exceeded the cash turn over of the assessee at ₹ 7.06 crore as against ₹ 8.03 crore adopted by AO. He found the % of GP in this line of business .He has held that what to be taxed in such situation is only the profit element and not the entire turnover as the deduction for the cost of goods has necessarily to be allowed - HELD THAT:- CIT(A) has not properly appreciated the facts stated by the AO in his remand report dt 28.9.2010. Since this issue this issue requires verification & reconciliation we set aside this issue to the AO . The AO after giving adequate opportunity to the assessee would decide this matter in accordance with law.
Addition on account of exchange fluctuation earned by the assessee - CIT (A) held that the assessee had incurred a net loss on account of exchange difference and deleted the entire addition - HELD THAT:- CIT (A) has not properly appreciated the facts stated by the AO in his remand report dt 01.03.2011. Since this issue this issue requires verification & reconciliation we set aside this issue to the AO . The AO after giving adequate opportunity to the assessee would decide this matter in accordance with law.
Addition on short accounted interest income - CIT(A) called for a remand report and after examining it held that the ledger extract of the account copy of the assessee in the books of PEC Ltd is to be considered to arrive out the correct amount of income earned by the assesseee on the FDs from PEC Ltd and on such basis found that the assessee earned interest income but admitted in its books at ₹ 5,45,45,971/- only and hence confirmed the addition at ₹ 29,45,468/-only. - HELD THAT:- Since the Revenue has not brought any material to assail the conclusion of the CIT (A), we confirm the decision of the CIT(A).
Unaccounted investment in purchase and sale of 85 Kgs of gold u/s 69 - Whether CIT(A) is not justified in deleting the addition and it is therefore prayed that AO's action may be upheld? - HELD THAT:- CIT (A) examined the materials furnished during remand proceedings and arrived the above conclusion. This being so, the Revenue has not brought any material to assail the above findings and hence we confirm the decision of the CIT (A).
Addition u/s 69A - Cash found in search - HELD THAT:- Before the CIT (A), the assesseee pleaded that it had cash on hand as per its books as on 28.01.2005 at ₹ 2,62,65,903.77/-and therefore it cannot be said that the appellant is in possession of unexplained cash. The CIT (A) called for a remand report and the AO was silent on this issue. He held that the fact remains that the very cash book with which the AO relied upon to conclude the assessments show a cash balance of ₹ 2,62,65,903.77/- as on the date of search and this fact has not been denied or controverted by the AO and hence the CIT (A) deleted the addition. Thus, the Revenue has not brought any material to assail the conclusion of the CIT (A), we confirm the decision of the CIT (A).
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2016 (12) TMI 1855 - SUPREME COURT
Maintainability of petition - application dismissed on the ground that the Appellants had applied before the stage of issuance of process so to be issued by the Metropolitan Magistrate Under Section 156(3) of the Code of Criminal Procedure - HELD THAT:- In the present case a fact finding investigation was directed by the impugned order. Consequently, FIR was registered against Appellants No. 2 to 4 and against RM (Vinod Koper). The accused under Indian Criminal Legal System, unless proved guilty shall always be given a reasonable space and liberty to defend himself in accordance with the law. Further, it is always expected from a person accused of an offence pleading not guilty that he shall co-operate and participate in criminal proceedings or proceedings of that nature before a court of law, or other Tribunal before whom he may be accused of an 'offence' as defined in Section 3(38) of the General Clauses Act, i.e., an act punishable under the Penal Code or any special or local law. At the same time, courts, taking cognizance of the offence or conducting a trial while issuing any order, are expected to apply their mind and the order must be a well reasoned one.
The Appellants approached the High Court even before the stage of issuance of process. In particular, the Appellants challenged the order dated 04.01.2011 passed by the learned Magistrate Under Section 156(3) of Code of Criminal Procedure. The learned Counsel appearing on behalf of the Appellants after summarizing their arguments in the matter have emphasized also in the context of the fundamental rights of the Appellants under the Constitution, that the order impugned has caused grave inequities to the Appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appears to us that this order Under Section 156(3) of Code of Criminal Procedure requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation.
There are no flaws in the impugned order or any illegality has been committed by the High Court in dismissing the petitions filed by the Appellants before the High Court - appeal dismissed.
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2016 (12) TMI 1854 - SUPREME COURT
Characterization of income - subvention received by the Assessee - Company from its parent Company in Germany in a situation where the Assessee - Company was making losses - revenue or capital receipt - whether subvention was capital or revenue receipt, was sought to be answered by the High Court by making a reference to two decisions of this Court in Sahney Steel & Press Works Ltd. [1997 (9) TMI 3 - SUPREME COURT] and Commissioner of Income Tax, Madras v. Ponni Sugars and Chemicals Limited [2008 (9) TMI 14 - SUPREME COURT] - HELD THAT:- The view expressed by this Court that unless the grant-in-aid received by an Assessee is utilized for acquisition of an asset, the same must be understood to be in the nature of a revenue receipt was held by the High Court to be a principle of law applicable to all situations. The aforesaid view tends to overlook the fact that in both Ponni Sugars (supra) and Sahney Steel (supra) the subsidies received were in the nature of grant-in-aid from public funds and not by way of voluntary contribution by the parent Company as in the present cases.
The above apart, the voluntary payments made by the parent Company to its loss making Indian company can also be understood to be payments made in order to protect the capital investment of the Assessee Company. If that is so, we will have no hesitation to hold that the payments made to the Assessee Company by the parent Company for Assessment Years in question cannot be held to be revenue receipts. We also find such a view in a recent pronouncement in Commissioner of Income Tax v. Handicrafts and Handlooms Export Corporation of India Ltd. [2014 49 Taxmann.com 488 Delhi (Delhi High Court) with which we are in respectful agreement.
We allow the present appeals; set aside the order of the High Court and answer the liability of the Assessee for the Assessment Years in question in the above manner.
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2016 (12) TMI 1853 - KARNATAKA HIGH COURT
Validity of acquisition proceedings - declaration also sought that the acquisition has lapsed by virtue of the provisions contained in Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as compensation amount was not deposited nor physical possession of the land was taken - HELD THAT:- The land in question is a small piece of 7 guntas of land situated at Bommanahalli village in Bengaluru South Taluk. Therefore, question of BDA now proceeding with the acquisition by passing an award taking over possession and making any layout to distribute the sites at this stage, does not arise. After a lapse of 30 years, BDA cannot proceed with the acquisition by passing an award as it would result in arbitrary exercise of power by the BDA, in as much as, the market value to be determined and compensation payable would be reckoned as it existed on the date of publication of the preliminary notification during the year 1984. Payment of compensation on that basis to the land owners would be illusory.
The acquisition having not been completed, no award having been passed nor possession of the land having been taken for the last three decades, the entire acquisition proceedings stand lapsed as having been abandoned by the BDA and the State Government - the principle that transferee of land after the publication of preliminary notification cannot maintain a writ petition challenging the acquisition, cannot be made applicable to a case where the acquisition itself has been abandoned and has stood lapsed due to efflux of time on account of the omission and inaction on the part of the acquiring authority, particularly because, it is because of the lapse of time and the abandonment of acquisition, right accrues to the original owner to deal with his property including by way of sale and the purchaser will acquire right to protect his interest.
It is hereby declared that the acquisition proceedings in respect of land bearing Sy. No. 44/7 measuring 7 guntas of Bommanahalli village, Bengaluru North Taluk, have stood lapsed and have been abandoned - Petition allowed.
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2016 (12) TMI 1852 - DELHI HIGH COURT
Deemed dividend addition u/s 2(22)(e) - HELD THAT:- ITAT analysed the facts and based upon the material on record deduced firstly, that similar transactions were not treated as advances but were in respect of third parties and the explanation that they were trade credits were accepted.
The ITAT, therefore, was of the view that there was no loan to the assessee in the circumstances of the case. We are of the opinion that the plain text of Section 2(22)(e) does not authorise the treatment of the amounts as a loan to a shareholder since concededly the amounts were not received by the assessee, an individual. See ANKITECH PVT LTD. & OTHERS [2011 (5) TMI 325 - DELHI HIGH COURT] - No substantial question of law arises.
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2016 (12) TMI 1851 - CESTAT NEW DELHI
Levy of Education cess in addition to duty under the compounded levy scheme - HELD THAT:- The issue decided in the case of Commissioner Central Excise, Jaipur-II Vs. Shri Ram Steel Industries [2010 (7) TMI 416 - CESTAT, NEW DELHI] where it was held that education cess and higher education cess cannot be said to be part of the compounded levy determined under the compounded levy scheme in terms of Notification No. 34/2001-C.E., dated 28-6-2001 read with Rule 15 of the said Rules, and Education Cess to be levied on compounded levy.
Demand upheld - appeal allowed - decided in favor of Revenue.
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2016 (12) TMI 1850 - CESTAT NEW DELHI
Clandestine removal - PVC insulated wires armoured/unarmoured cables - retraction of statements - appellant produced different charts pointed out various mistakes in calculating the duty demand and the same has not been considered - principles of natural justice - HELD THAT:- It is the contention of the appellant that during the course of adjudication they produced various charts for calculation of demand duty and the same has not been considered by the adjudicating authority. In fact, those calculations given by the appellant are required to be considered by the adjudicating authority. Moreover, the defences raised by the appellant are to be considered by the adjudicating authority in true spirits and after considering the explanations and chart given by the appellant. As, the adjudicating authority was required to give due consideration of the records produced by the appellant but the same has not been given, in that circumstances, the impugned order deserves de-merits, therefore, the same is to be set aside.
The matter is remanded back to the adjudicating authority for consideration the grievance raised by the appellant - Appeal allowed by way of remand.
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2016 (12) TMI 1849 - ITAT CHENNAI
Nature of expenditure - power and fuel charges - assessee bear cost of additional power infrastructure to be established by electricity supplier - AR submitted that when the outgo did not create any asset for the assessee it was a revenue expenditure allowable u/s.37(1) - HELD THAT:- There is no dispute that there was a agreement between assessee and M/s. Ford India Pvt. Ltd by which latter leased out a property to the assessee. M/s. Ford India Pvt. Ltd was to supply electricity to the assessee for the factory in the leased property based on a shared services agreement.
M/s. Ford India Pvt. Ltd had given notice to the assessee for terminating the shared supply agreement w.e.f. 1st January, 2009 is also not doubted. Electricity was an essential input for carrying on the manufacturing activity of the assessee and there can be no two opinions on this. To ensure supply of uninterrupted electricity, assessee had to agree with M/s. Ford India Pvt. Ltd to part finance the total cost of additional power infrastructure to be established by M/s. Ford India Pvt. Ltd. M/s. Ford India Pvt. Ltd would not have supplied electricity after 1st January, 2009 but for assessee agreeing to part finance the cost of the project for establishing additional power infrastructure - additional power infrastructure created was the sole property of M/s. Ford India Pvt. Ltd and assessee had no ownership over any part of the said asset.
The only benefit assessee derived was supply of uninterrupted electricity, without which it could have not functioned. In this situation, the said expenditure in our opinion can only be treated as revenue expenditure which ensured continued electricity supply. The payment did not result in any enduring benefit but only enabled the assessee to carry on its day to day activities. Just because additional power infrastructure was an asset in the hand of the M/s. Ford India Pvt. Ltd, we cannot say that amount given by the assessee to M/s. Ford India Pvt. Ltd was a capital outgo. The expenditure was incurred wholly and exclusively for the business of the assessee and it did not create any asset for the assessee. It only ensured continued supply of electricity without interruption. In such circumstances, in our opinion, the expenditure was rightly claimed by the assessee as revenue outgo. Lower authorities in our opinion fell in error in disallowing the claim. - Decided in favour of assessee.
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2016 (12) TMI 1848 - SUPREME COURT
Murder - Respondent No. 1 fired upon his brother-in-law Vishnu from his revolver and thereafter Sombir also fired upon Vishnu - Sections 148, 302 and 307 of the Indian Penal Code read with Section 149 Indian Penal Code and Section 25 of the Arms Act - HELD THAT:- The Medical Professionals namely Dr. Munish Prabhakar and Dr. K.S. Sachdev extended medical asylum to the Respondent without there being any reason or medical condition justifying prolonged admission of the Respondent as an indoor patient as a cover to defeat the Orders passed by this Court and the Trial Court, as stated above and thereby aided and assisted the Respondent in violating the Order of this Court. By such conduct these Medical Professionals have obstructed administration of justice.
The Respondent guilty of having violated the Order dated 24.10.2013 passed by this Court and for having obstructed administration of justice. We also hold Dr. Munish Prabhakar and Dr. K.S. Sachdev guilty for having helped the Respondent in his attempts and thereby obstructing administration of justice. Having held so, we could straightaway have imposed appropriate punishment under the Act. However, we deem it appropriate to grant one more opportunity to these contemnors. The Respondent has not filed any affidavit nor tendered an apology. At the same time for Dr. K.S. Sachdev, Managing Director of the company that owns the hospital is said to be 76 years of age. Considering the fact that these are medical professionals with sufficient standing, the ends of justice would be met if one more opportunity is granted to them to present their view on the issue of punishment. In the circumstances, we direct presence of these three contemnors on January 2, 2017.
Role of the police officials - HELD THAT:- The conduct exhibited by the concerned police officials in not ensuring compliance of the Orders passed by the Trial Court calls for strict administrative action. The actions in that behalf have already been initiated and for the present we rest content by observing that the disciplinary proceedings shall be taken to logical end and the guilty shall be brought to book. We request the Director General of Police of Haryana and the Home Secretary to look into the matter and ensure that the departmental proceedings are taken to logical end at the earliest. The status report/action taken report in that behalf shall be filed in this Court within three months from the date of this judgment.
Application disposed off.
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