TMI Tax Updates - e-Newsletter
March 4, 2015
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
Income Tax
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Non deduction of TDS - providing co-branded credit cards - HDFC Bank gives discount/commission to the retail merchant for utilizing the facility of the Bank - A.O. has wrongly invoked the provisions of section 194H - AT
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Computation of capital gain - ascertaining the correct sale value - no contrary material on record or any inquiry by the AO, the sale consideration shown by the assessee is liable to be accepted - AT
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Penalty u/s 271(1)(c) - withdrawal of claim of section 54 by the assessee - AO imposed penalty on the basis of wrong premises and erroneous interpretation of the provisions of the Act - AT
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Penalty u/s 271(1)(c ) - the assessee's non-appealing of the issue does not tantamount to admission of addition - AT
Customs
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Bonafide exporter - Appellant failed to establish whether it has earned any foreign exchange out of the use of the imported goods exporting goods. In absence of earning of foreign exchange for the country, public interest is defeated - AT
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Validity of order passed - Transfer of officer - additional conditionalties have no force in law inasmuch as they in effect modify the order of earlier Additional Commissioner for doing which the latter Additional Commissioner had no authority - AT
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Rejection of request of substitution of name - importer had abandoned their claim of the goods - the amendment of the IGM sought by the shipping agent for substituting the name of the importer with M/s. BGH Exim Ltd. cannot be faulted at all. - AT
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If the respondent CHA had committed any contravention of CHALR, remedies lies in taking action under CHALR and not under the Customs Act. - AT
Central Excise
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Input service credit - Trading activity - the applicants have reversed the proportionate input service credit - stay granted - AT
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2015 (3) TMI 63
Revision u/s 263 - income from the nature of business activities as shown by the assessee, was not eligible for deduction under Section 80-O - Tribunal set aside the revision made by CIT u/s 263 as bad in law allowing the deduction under Section 80(O) in respect of tower testing activity, etc - Held that:- The learned Standing Counsel for the Revenue is not disputing the fact that the tax effect in the present case is less than ₹ 4 Lakhs and that the assessee's case does not fall within the exceptions specified in Instruction No.1979, dated 27.3.2000. Thus considering the circulars issued by the Central Board of Direct Taxes and the tax effect involved in the case on hand, this Court is not inclined to entertain this appeal. - Decided against revenue.
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2015 (3) TMI 62
Penalty u/s 271(1)(c) - Non inclusion of income from projects - Held that:- Act of the assessee in not including income from the two projects in its total income is absolutely bona fide backed by proper Agreement with the Ministry of Tourism, Government of India and does not warrant imposition of any penalty u/s 271(1)(c). It is an altogether a different matter that the MOT, after making commitment to a non-resident assessee, could not seek exemption under the relevant provisions of the Act and the assessee completed the litigation by paying the taxes due on such income. Now, if, at all, there is some penalty liability, that should have been discharged by the MOT in terms of its Agreement with the assessee. Since we are only concerned with the imposition of penalty on such income, there can be no case under the present facts for imposing concealment penalty u/s 271(1)(c) on the assessee as there was a bona fide reason for not including such income in the total income. We, therefore, set aside the impugned order and order for the cancellation of penalty for all the years under consideration. - Decided in favour of assessee
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2015 (3) TMI 61
Bogus loan transaction - difference between interest received and interest paid by the assessee to sister concerns - CIT(A) deleted the addition - Held that:- Loan transactions have been carried out through account payee cheques and the same has been duly recorded in the books of account. The receipt and the payment of interest has also been recorded in the books of account. It is not disputed that the assesee is engaged in the business in dispute from the last and subsequent years and for that proof the assessee has filed the assessment order passed by the AO under section 143(3) of the I.T. Act for the asstt. years 2005- 06, 2006-07 and 2008-09 in which no such disallowance has been made by the Revenue Authorities. Even otherwise, the Revenue has not produced any documentary evidence establishing that the business of the assessee is not genuine and the transactions is also sham. Thus CIT(A) has passed a well reasoned order on the basis of the assessment orders passed u/s. 143(3) of the Act for the previous as well as in the subsequent assessment years, wherein no such disallowance has been made by the Revenue Authorities. - Decided against revenue.
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2015 (3) TMI 60
Penalty u/s 271(1)(c) - AO levied penalty in respect of the addition made on account of fall in GP, disallowance of depreciation and deduction claimed u/s.80IB - Held that:- There is no dispute with regard to the deletion of addition in respect of the addition of ₹ 25,46,363/- made on account of fall in GP and the addition made on account of disallowance of deduction amounting to ₹ 2,38,533/-, the AO has disallowed the deduction on the basis that the assessee did not disallow the interst of ₹ 5,82,803/-. The ld.counsel for the assessee submitted that the assessee had, in fact, disallowed the interest and rectification order u/s.154 of the Act was passed by the AO and rest of the disallowance was deleted by the Tribunal vide order dated 12/08/2011 in ITA No.3496/Ahd/2008 (supra). These facts are not controverted by the Revenue by placing any contrary material, therefore we hereby direct the AO to delete the penalty levied on an amount of ₹ 2,38,533/-. In view of the fact that the assessee has claimed depreciation during the year under consideration. The Revenue has not controverted the same, therefore following the ratio laid down in the case of CIT vs. Reliance Petroproducts Pvt.Ltd.(2010 (3) TMI 80 - SUPREME COURT ), we are of the considered view that the ld.CIT(A) was not justified in confirming the penalty on this issue, therefore the AO is hereby directed to delete the penalty levied on addition of ₹ 2,32,001/- - Decided in favour of assessee.
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2015 (3) TMI 59
GP addition - CIT(A) deleted the addition - Held that:- CIT(A) has correctly concluded that AO was not justified to reject the books of accounts to estimate the profits of the assessee at the rate higher than that given in the books of account of the assessee. The GP rate as explained by the assessee was higher in the year under consideration compared to the immediately preceding year and hence any addition on this basis was uncalled for. As regards confirmations, the assessee was given inadequate time to file these. If the AO wanted to get the accounts of some of the parties confirmed, he could have given some more time to the assessee to file confirmed copies of accounts which could have changed his mind regarding his action to reject the books of account. Therefore, Ld. CIT(A) held that AO was erred in rejecting the books of account of the assessee and estimating profits of the assessee. Hence, he deleted the addition made by the AO. In view of the above, we find that Ld. CIT(A) has rightly deleted the addition ₹ 22,85,157/- which does not need any interference on our part, hence, the same is upheld. - Decided in favour of assessee.
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2015 (3) TMI 58
Disallowance u/s 14A r.w.r. 8D - Held that:- As relying on assessee's own case [2015 (2) TMI 481 - ITAT DELHI] in the preceding assessment year 2008-09 the incurring of short term loss from mutual funds and earning from long term capital gains on shares proves that assessee was continuously engaged in investment activities both short term and long term which cannot be done without proper human resources and proper infrastructure. Therefore, we are of the considered opinion that the Assessing Officer had rightly disallowed 0.5% of expenditure as disallowance u/s 14A of the Act - Thus direct the AO to disallow 0.5% of the expenditure as disallowance u/s 14A of the Act.- Decided partly in favour of assessee
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2015 (3) TMI 57
Disallowance u/s 14A - Held that:- The investment made by the assessee would be out of interest free funds available with the assessee and, consequently, no disallowance could be made u/s 14A of the Act. In view of the fact that the assessee’s share capital with reserves and surpluses is far in excess of the amount invested in securities fetching exempt income, there can be no question of disallowance of interest amounting to ₹ 8,22,725/-. The disallowance to this extent is deleted. As regards the remaining part of disallowance at ₹ 1,23,503/-, we find that the same is in accordance with law as per Rule 8D(2)(iii), being an amount equal to ½% of the average of the value of investment. Since the assessment year under consideration is 2009-10, the mandate contained in Rule 8D applies as per the judgment Maxopp Investments Ltd. Vs. CIT (2011 (11) TMI 267 - Delhi High Court), therefore, sustain the disallowance u/s 14A at ₹ 1,23,503/-. - Decided partly in favour of assessee. Disallowance of prior period expenses - Held that:- Commissioner of Industries, Government of NCT of Delhi, vide notice of demand dated 19.6.08, raised a demand of ₹ 42,000/- towards apportioned cost of common Effluent treatment plant. From a copy of this notice, which has been placed on record, it can be seen that the assessee was directed to pay ₹ 42,000/- towards demand pertaining to financial year 2006-07 and 2007-08. The otherwise deductibility of such expenses has not been disputed by the AO. Since this amount became payable by virtue of notice of demand issued by the Government on 19.6.08, the same, in our considered opinion, is rightly allowable as deduction. Overturning the impugned order on this score, we order for the deletion of addition. - Decided in favour of assessee. Disallowance of legal expenses - Held that:- Advocate’s fees of ₹ 7,500/- for seeking bail in respect of the offence committed by the assessee’s driver is not allowable in terms of Explanation to section 37(1) which prohibits deduction of any expenditure incurred for any purpose which is an offence or which is prohibited by law. In so far as other component of the disallowance, namely, ₹ 3,000/- is concerned, we find that this is in respect of certification charges of the net worth of directors, which certificates were used for obtaining loans by the company from banks. This expenditure, in our considered opinion, is deductible as per law. - Decided partly in favour of assessee.
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2015 (3) TMI 56
Reopening of assessment - Computation of capital gains - information from Sub-Registrar's Office would show that the value of land as on 14.1981 is ₹ 2.46 per sq. yard instead of ₹ 8 per sq. yard taken by the assessee - Held that:- As at the time of assessment all the details have been furnished and the Assessing Officer after taking into account all the details arrived at the capital gains. Further, the computation of capital gain was subject matter of appeal before the CIT(A). The CIT(A) has passed the order and the Department has accepted the same. The original assessment was made accepting the value of land as on 1.4.1981 at ₹ 8 per sq. yard whereas the AO held that another SRO has given the value as on 1.4.1981 at ₹ 2.48 per sq. yard. However, the computation of capital gain on the sale of land had reached finality with the order of the CIT(A) dated 9.2.2008. The assessment order insofar as computation of capital gains is concerned has merged with the order of the CIT(A). Therefore, the Assessing Officer has exceeded his jurisdiction in reopening the issue which has merged with the order of the CIT(A). Thus re-assessment order dated 7.12.2009 reopened for re-working the capital gains is without jurisdiction and requires to be set aside. Once the basis for reopening does not survive other additions made in the assessment order also cannot survive. - Decided in favour of assessee.
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2015 (3) TMI 55
Revision u/s 263 - unaccounted corpus funds/building fund - Non eligiblilty for claiming exemption u/s 11 and u/s 10(23C(vi)) - Held that:- Going through the record it is find that the assessee has given all the details of additions to corpus funds/building fund and the utilization of the amount of the grant is evident from the accounts statement filed with the return of income and given the assessment proceedings. Also the ITAT in assessee’s own case [2015 (2) TMI 571 - ITAT HYDERABAD] has held that the assessee is eligible to exemption of income as the charitable organization enjoying the benefit of section 11 of the Act. Further the grant is a capital receipt and not a revenue receipt and hence a non taxable receipt. The Hon'ble Andhra Pradesh High Court in the case of CIT vs. Chitrakalpa, [1988 (8) TMI 34 - ANDHRA PRADESH High Court] held that the subsidy given by the govt. to the assessee was not a revenue receipt. We also see from the notes and accounts that the capital grant received are adjusted from the cost of fixed assets. Hence we are of the opinion that the grant received is of capital in nature and does not have the income character and the assessee has treated it rightly as a corpus donation. Non eligiblilty for claiming exemption u/s 11 and u/s 10(23C(vi)) by assessee is incorrect. Further the CIT has also held that the AO ought to have verified the receipts/grants from the World Bank, so as to bring the same to the tax net which is also incorrect in as much as the grant received is a capital receipt and towards corpus of the Institution/Trust. Hence the order passed by the AO is neither erroneous nor prejudicial to the interests of the Revenue for assumption u/s 263. - Decided in favour of assessee
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2015 (3) TMI 54
Revision u/s 143(3) r.w.s. 263 - CIT(A) granting deduction u/s 10A to the payments brought into India in foreign exchange after 6 months from the date of export though RBI - Held that:- Since the appeal passed u/s 263 has been decided already by the Tribunal in assessee's own case [2015 (2) TMI 570 - ITAT HYDERABAD] wherein it has been held that the CIT does not have jurisdiction to initiate proceedings u/s 263 of the I.T. Act as proceeds have been brought into India within extended time stipulated by RBI. Further, as seen from the record, the assessee has received the amount within the permitted period by the competent authority. Accordingly, the order of the AO is not prejudicial to the interests of the Revenue nor is erroneous. As the present appeal passed by the AO u/s 143(3) r.w.s. 263 become infructuous and hence appeal of the Revenue is dismissed.
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2015 (3) TMI 53
Penalty u/s 271(1)(c) - non deduction of TDS u/s.194C - disallowance u/s 40(a)(ia) - CIT(A) deleted penalty levy - Held that:- Mere disallowance by Assessing Officer is not sufficient to reach the conclusion of furnishing inaccurate particulars of income. The disallowance made and upheld on account of deeming provisions of Section 40(a)(ia) of the Act are because of non deposit of TDS so deducted by assessee within due date as prescribed u/s. 200(1) of the Act. But, such deducted TDS was duly paid before filing of return of income for the impugned previous year. As per the amendment in Section 40(a)(ia) of the Act which was held as clarificatory; such deposit now does not require the operation of provision of Section 40(a)(ia) of the Act i.e. issue was debatable at relevant point of time. Further, Assessing Officer on his own through rectification u/s. 154 of the Act allowed the claim of expenditure in subsequent year. Assessee bonafidely made the claim, which cannot be said to be furnishing inaccurate particulars of income. Accordingly, CIT(A) was justified in deleting penalty. - Decided in favour of assessee.
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2015 (3) TMI 52
Short-Term capital gain u/s 50 - sale of factory building and structure constructed on the lease hold land - payment of additional stamp duty - non application of section 50C as the depreciating asset was transferred contented by assessee - Held that:- However, ld.CIT(A) has concluded that section 48 & 49 of the Act would have application on the facts of the present case. We find that as per section 50, the provisions of section 48 & 49 shall be subjected to certain modification. This aspect has not been considered by the ld.CIT(A) while deciding the issue. Therefore, this issue is restored to the file of ld.CIT(A) for decision afresh in accordance with provisions of law. - Decided in favour of assessee for statistical purposes. Claim of Indexation on long term capital gain on sale of land - additional ground raised - Held that:- Since this is a legal issue and the same is raised first time before this Tribunal, therefore the ground is admitted and restored back to the file of ld.CIT(A) for decision afresh in accordance with law. Thus, this additional ground raised by the assessee is allowed for statistical purposes.
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2015 (3) TMI 51
Non deduction of TDS - A.O. invoked the provisions of section 194H against the assessee and CIT(A) confirming the amount under section 194C - Assessee has entered into an agreement with HDFC for providing co-branded credit cards - AO held that assessee is having a principal-agent relationship with HDFC and the amount withheld by the bank is in the nature of commission - demand u/s 201(1) and interest u/s 201(1A) raised - Held that:- In the transaction between credit card holder and the Bank, e-seva service has no role to play. As far as credit card holder is concerned, the amount payable to eseva is charged to his account and retail merchant acts as a mediator for remitting amount to e-seva by utilizing the HDFC Bank. As far as HDFC Bank is concerned, it gives discount/commission to the retail merchant for utilizing the facility of the Bank. Thus, if any principal-agent relationship is existing that is between the Bank and the retail merchant but not between Bank and e-seva. Thus the A.O. has wrongly invoked the provisions of section 194H against the assessee who is nowhere connected with the commission paid by HDFC to the retail merchant. Moreover, the Ld. CIT(A) has further erred in confirming the amount under section 194C. There is no contract more so, any work contract between HDFC and assessee. As seen from the terms of agreement, no services are rendered by e-seva to HDFC or vice-versa. Both of them have entered into an alliance for promoting the ‘e-seva HDFC Credit Card’ for the use of customers not only for remitting e-seva amounts but also for utilizing it as a general credit card for certain value added benefits. This does not involve any contract between these parties, so as to invoke provisions of section 194C. Since, Ld. CIT(A) already held that provisions of section 194H are not applicable to the facts of the case and since provisions of section 194C are also not applicable, demand raised by A.O. cannot be sustained at all. Not only that, we are also not sure on what basis the A.O. has arrived at the amount, if at all any amount is withheld by HDFC Bank, it is not out of amount paid to e-seva but out of the amounts payable to merchant Banker for using the credit facility. How that amount can be attributable to e-seva is not explained by A.O. As seen from the details placed on record, except the cards settlement details, no other details are available. Moreover, assessee was not given any opportunity on what basis amounts were crystallized. Not only on the facts but also on legal principles, the A.O. action cannot be sustained at all in raising demands unnecessarily. - Decided in favour of assessee.
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2015 (3) TMI 50
Addition to income u/s 69A - documents recovered from the premises of M/s Gian Chand Ramji Das during the course of search conducted - FAA uphold the addition of ₹ 318602/- out of the total addition of ₹ 368602/- and his given the relief of ₹ 50,000/-. - Held that:- In the search 56 papers were seized from the premises of M/s Gian Chand Ramji Das and 33 papers are linked to the general copy house sent to the AO of the assessee. On explanation by the assessee on the seized document the assessee stated that they were not aware of the companies M/s AAA Exports & M/s ABC Exports etc. The assessee has also filed a letter from Mr. Chandra Prakash partner of M/s Gian Chand Ramji Das in which he has stated that he has made these entries for his learning and also told that these entries are for his convenience sake and has no concerned with assessee’s books of accounts. The assessee has also stated before the Revenue Authority that Sh. Chandra Prakash is handling their export of their paper and board business and is also their attorney with Union Bank of India, Sadar Branch. The assessee has categorically denied that they have not received even a single piece from him. As assessee has explained about all 33 papers allegedly related to the assessee and established that assessee has not received any payment mentioned in the seized papers but the ld. First Appellate Authority has not appreciated the explanation given by the assessee which is supported by evidences also and has made the addition of ₹ 3,18,602/- without any basis and contrary to the explanation given by the assessee as well as contrary to the evidence produced by the assessee before the Revenue Authorities. - Decided in favour of assessee.
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2015 (3) TMI 49
Revision u/s 263 - AO has neither called for any particulars, nor examined any alleged debtors - ingenuine sale of agricultural land - Held that:- In the case of scrutiny assessment, notices have been issued u/s 143(2) and 142(1). The information furnished has been examined and on verification of the same, the assessment has been completed. The assessee has given the names and the people who have repaid the amounts to him and all the information was available with the AO. In case of schedule land, the registration of sale deed of agricultural land does not take place and the assessee has furnished the notarized copies of the sale agreement before the AO and the CIT. Mere notarization of the sale agreement seems to be the practice in that area being schedule land. Hence the CIT, on a mere change of opinion initiated the proceedings u/s 263. The order of AO cannot be revised if it has been passed after application of mind. Merely because the opinion of the CIT is different from AO this section cannot be resorted to. In the present case the AO has gathered details with respect to repayment of hand loans by relatives and friends and also sale of agricultural land i.e. the AO has considered the explanation given by the assessee and passed an order after applying his mind. Hence, following the ratio of the decision in CIT vs. Gabriel India, [1993 (4) TMI 55 - BOMBAY High Court], we allow the assessee’s appeal. - Decided in favour of assessee.
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2015 (3) TMI 48
Unexplained investments in a residential flat - gap of eight years for transfer of title - CIT(A) deleted the addition - Held that:- It is surprising that one would wait for nearly eight years for transfer of title. The parties generally, to ensure performance, retain a part of the consideration pending the completion of any part of the contract, which may include an aspect or part of construction work, or even execution of agreement and its registration, only upon which there is transfer of title. However, that would not by itself imply that purchase had not occurred earlier, and that it had occurred only along with, i.e., the said transfer, about 8 years later. Further, there is nothing to show that the purchase cost exceeded the stated consideration of ₹ 4 lakhs, or that any part thereof, whatever be its value, was paid during the relevant year, or that it (the said year) witnessed anything apart from the execution of the agreement and its registration. Deferring the date of possession to the year 2003, i.e., after the date of occupancy certificate, would not also advance the Revenue’s case, which, as made out, is without any credible evidence or legal basis. The Revenue referred to a statement by the builder dated 26.12.2011, charging the first appellate authority to have proceeded by ignoring the facts brought out thereby. The same, which may well be relevant, is neither on record nor do we find any reference thereto in the assessment order itself. In fact, we find the assessee to have per the ‘statement of facts’ before the said authority specifically contended that no adverse view could be drawn on the basis of statement u/s. 131 by the promoter, Bombay Stone Quarries, copy of which had also not been supplied to him, i.e., without affording an opportunity for cross examination. There is no reference to this statement in the impugned order, even as the A.O.’s reliance thereon is admitted. It is unfortunate that the parties did not bring the same to our notice during the hearing. The tribunal in deciding an issue before it, is to answer all the grounds raised, taking into account all the relevant facts. In fact, we observe this to be an aspect of the issue arising for adjudication, though assumed in the form of a ground. The matter would therefore warrant being restored back to the file of the ld. CIT(A) for reconsideration - Also estore the matter qua the deletion of ₹ 1,80,230/-, towards payment of stamp duty and registration charges during the relevant year, back to the file of the first appellate authority for adjudication in accordance with law per a speaking order - Decided in favour for assessee for statistical purposes.
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2015 (3) TMI 47
Income from sale of investment - business income v/s capital gain - Held that:- So far as sale of shares/investment and the income arising from such sales have been treated as business income by the department which has been upheld by the Tribunal right from the A.Ys. 2001-02 to 2006-07. Thus consistent with the view taken in the earlier years, we hold that Ld.CIT(A) justified in treating the income from purchase and sale of shares/mutual funds as income from business. - Decided against assessee. Disallowance u/s 14A r.w.r 8D - Held that:- Admittedly in the impugned assessment year, Rule 8D is not applicable. The assessee has already allocated expenditure of ₹ 13,90,651/- on a pro-rata basis, which can be said to be reasonable allocation of expenses for the purpose of earning of the exempt income. The assessing officer without finding any defect in such an attribution of expenses has blindly applied Rule 8D. Such an application of Rule 8D in the present assessment year is not applicable and therefore, disallowance made by the AO and confirmed by the Ld.CIT(A) over and above the amount disallowed by the assessee is deleted. - Decided against revenue. Computation of capital gain - assessee challenged the addition in respect of sale of office premises, amounting to ₹ 36,29,494/-, by taking a different value other than sale consideration shown by the assessee - AO rejected the assessee’s contention and held that the rate of ₹ 11,099.37 per sq.ft should be applied and accordingly he treated the balance amount as deemed capital gains - Held that:- From the order of the Ld.CIT(A) and the submissions made by the assessee, it is seen that the area of 327 sq.ft relate to set back area which was not part of the sale agreement registered for the office premises admeasuring 946 sq.ft which was sold @ 11099.37. If the assessee had shown the sale of 327 sq.ft, area which was a set back area @ ₹ 6,500/- then the assessing officer should have made some kind of inquiry for ascertaining the correct sale value. Simply because the covered office premises in the main office area has been sold at a higher rate, then the same rate cannot be imputed for the set back area also. The assessing officer cannot enhance the sale value, unless there is some kind of inquiry or material on record to show that even the set back area will fetch the same market price. It is only u/s 50C, that the statute has given power to the assessing officer to enhance the sale value to be in consonance with the sale rate determined by the stamp valuation authority. Thus under the facts and circumstances, when there is no contrary material on record or any inquiry by the AO, the sale consideration shown by the assessee is liable to be accepted. Accordingly the sale value shown by the assessee with regard to the area of 327 sq.ft is accepted. - Decided in favour of assessee.
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2015 (3) TMI 46
Penalty u/s 271(1)(c) - withdrawal of claim of section 54 by the assessee - Held that:- In the instant case, the assessee tried hard to purchase a flat from Mr. Vrijesh Kumar Gupta to enjoy effect of section 54 of the Act but the deal failed due to dispute in the family of the seller and finally during the year under consideration, the assessee offered the amount of long term capital gain for taxation and also paid the tax within prescribed limit, therefore, the authorities below were wrong in holding that the assessee did not furnish any explanation in this regard and the AO grossly erred in holding that the case of the assessee is found covered by clause (a) of Explanation 2 to section 271(1)(c) of the Act because the assessee furnished a plausible explanation during the quantum proceedings which was also filed before the AO during penalty proceedings. Hence, we reach to a logical conclusion that the AO imposed penalty on the basis of wrong premises and erroneous interpretation of the provisions of the Act and the same was wrongly upheld by the CIT(A). Accordingly, we are inclined to hold that penalty is not leviable on the assessee in the present case. - Decided in favour of assessee.
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2015 (3) TMI 45
Penalty u/s 271(1)(c ) - addition in respect of downward impact of retention of price subsidy and 80IA in respect of Captive Power Plant - Held that:- As the quantum additions have been deleted by this Bench of ITAT for the assessment year 2003-04. Since quantum additions were deleted, we see no reason to interfere in the order of the ld. CIT(A). - Decided against revenue. Addition on account of wrong deduction u/s 80IA - Held that:- In view of the vexed legal history, the AO rejected assessee's explanation and made addition which was not challenged by the assessee in appeal for any reason. In these facts and circumstances of the case, the assessee's non-appealing of the issue does not tantamount to admission of addition in terms of Mak Data (P) Ltd. vs. CIT (2013 (11) TMI 14 - SUPREME COURT) judgment. Since all the material particulars were filed by the assessee along with return of income and they were part of the return. The ratio of Reliance Petro Products (P) Ltd. (2010 (3) TMI 80 - SUPREME COURT ) is squarely applicable to assessee's case relied for deletion of penalties in respect of IMACID and Captive Power Plant. Ground of the Revenue in respect of miscellaneous income u/s 80IA claim is dismissed. - Decided in favour of assessee
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2015 (3) TMI 44
Exclusion of DEPB from the computation of profit eligible for deduction under section 80 HHC - Held that:- As per the judgment of Topman Exports (2012 (2) TMI 100 - SUPREME COURT OF INDIA), only profit on sale of DEPB has to be considered for reduction from business profit and not the entire sale proceeds of DEPB. It was also held that for the purpose of computing profit on sale of DEPB, face value of DEPB should be considered as cost of DEPB. Since this issue was not decided by authorities below in this manner, we set aside the order of CIT(A) on this issue and restore this matter to the file of the AO for fresh decision on this aspect. - Decided in favour of assessee for statistical purposes. Exclusion of Export Incentives & Duty Draw Back from the computation of profit eligible for relief under section 80 IB - Held that:- This issue is covered against the assessee by the judgment of Liberty India vs. CIT (2009 (8) TMI 63 - SUPREME COURT) wherein it was held that deduction u/s 80IB is not allowable in respect of export incentive in the form of DDB and DEPB. - Decided against assessee. Computaion of deduction U/s 80HHC - whether is liable to be computed independently without reducing the amount of deduction U/s 80IA - Held that:- As decided in assessee's own case in assessment year 2002-03 deduction u/s 80HHC and 80-IB have to be independently computed and they have to be circumscribed by the overall limit as prescribed u/s 80A(2) of the Act only. - Decided against revenue.
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Customs
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2015 (3) TMI 72
Bonafide exporter - export of leather labels - Benefit of Notification No. 20/99-Cus. dated 28.2.1999 - Revenue’s grievance is that appellant was not bonafide exporter in view of no exports done by appellant making use of labels imported, in the exportable goods in absence of any export - Held that:- Bonafide character of the exporter is essential to avail the duty exemption under Sl. No. 83 of the Notification above. No doubt the appellant was registered with Apparel Export Promotion Council. But the object of the notification to grant duty exemption to the bonafide exporter is to earn foreign exchange for the country. Appellant failed to establish whether it has earned any foreign exchange out of the use of the imported goods exporting goods. In absence of earning of foreign exchange for the country, public interest is defeated. That questions bonafide of appellant. No doubt the notification does not contain any end use condition. Plea of appellant as to absence of end use condition in the notification does not bring a difference to law when object of the notification is to serve public interest. Exemption is granted in public interest to encourage exports so that foreign exchange is earned for this country. Therefore, any act defeating such purpose disentitles to the benefit sought to be granted by the notification. Accordingly, for all the reasons stated above, it is not possible to hold that the imports were made by bonafide exporter. Benefit of the notification is rightly deniable to the appellant who has defeated public interest. - Decided against assessee.
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2015 (3) TMI 71
Classification of imported fabrics - Covered textile fabrics or otherwise - A material can not be said to covering itself to be called covered material - Held that:- Following decision of YS. Enterprises Versus CC, Delhi-III [2015 (2) TMI 784 - CESTAT NEW DELHI] - Decided against the assessee.
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2015 (3) TMI 70
Validity of order passed - Transfer of officer - Confiscation of goods - Enhancement in value of goods - Held that:- The appellants are not agitating against the order passed by the earlier Additional Commissioner; (and they also possibly cannot because the said order was passed after the appellants waived the show cause notice, thereby, in effect, agreeing to not insist on following the principles of Natural Justice); they are only agitating against the aforesaid two additional conditionalities ordered by subsequent Additional Commissioner. - We have already held that the subsequent Additional Commissioner had no authority to sit in judgment over the decision of the earlier Additional Commissioner as he was neither the revisionary authority nor the appellate authority for the latter. Thus the additional conditionalties have no force in law inasmuch as they in effect modify the order of earlier Additional Commissioner for doing which the latter Additional Commissioner had no authority. We make it clear that we are not expressing any opinion regarding the legal requirement for import license or clearance from Ministry of Environment and Forest - Decided partly in favour of assessee.
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2015 (3) TMI 69
Rejection of request of substitution of name - abandoned goods - appellant failed to clear the goods within the time period stipulated - Held that:- Section 149 of the Customs Act provides for amendment of IGM as per the discretion of the proper officer after the IGM has been presented. In the present case, the original importer's name was indicated in the IGM as M/s Jai Durga Trading Co. However, the said importer did not clear the goods nor did he pay duty within thirty days from the date of unloading of the goods as stipulated under Section 48 of the Customs Act, 1962. This clearly shows that the appellant, M/s. Jai Durge Trading Co., was not interested in clearance of the goods and had abandoned their claim of the goods. Therefore, the amendment of the IGM sought by the shipping agent for substituting the name of the importer with M/s. BGH Exim Ltd. cannot be faulted at all. An identical matter came up for consideration before the Hon'ble Delhi High Court in the case of Agrim Sampada Ltd. & Another vs. UOI in [2004 (1) TMI 86 - HIGH COURT OF DELHI]. The Hon'ble High Court held that "when an importer fails to pay for the goods and abandons/refuses them, the supplier continues to remain the owner of the goods and that he can transfer the document of title to another person and thereafter person will be entitled to clear the goods." The ratio of the said decision would apply squarely to the facts of the present case. - No merit in the appeal - Decided against assessee.
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2015 (3) TMI 68
Confiscation of goods u/s 111(d) - importer did not have the IEC code - Penalty u/s 112 - Held that:- The reasoning given and the conclusion drawn by the lower appellate authority is beyond any challenge. If the respondent CHA had committed any contravention of CHALR, remedies lies in taking action under CHALR and not under the Customs Act. Therefore, I find no reason to interfere with the impugned order. - Decided against Revenue.
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Corporate Laws
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2015 (3) TMI 67
Sanction of the Scheme of Arrangement - De-merger - Concern of Regional Director regarding Creation / Satisfaction of charge , Date of valuation report and details of assets & liabilities proposed to be transferred duly addressed - Held that:- In view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies; representation/report filed by the Regional Director, Northern Region to the proposed Scheme of Arrangement, there appears to be no impediment to the grant of sanction to the Scheme of Arrangement. Consequently, sanction is here by granted to the revised Scheme of Arrangement under sections 391 and 394; 100 to 104 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law. It is, however, clarified that this order will not be construed as an order granting exemption from payment of stamp duty or any other charges, if payable, in accordance with any law; or permission/compliance with any other requirement which may be specifically required under any law. - Scheme of Amalgamation approved.
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2015 (3) TMI 66
Sanction of the Scheme of Amalgamation - Concerns of the Regional Director regarding appointment date, non-compliance of sec.295 & non disclosure of related party transactions duly addressed - Held that:- In view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies; representation/reports filed by the Regional Director, Northern Region and the Official Liquidator, attached with this Court to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under sections 391 and 394 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law. It is, however, clarified that this order will not be construed as an order granting exemption from payment of stamp duty or taxes or any other charges, if payable in accordance with any law; or permission/ compliance with any other department which may be specifically required under any law. - Scheme of Amalgamation approved.
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Service Tax
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2015 (3) TMI 89
Denial of CENVAT Credit - Input service - Business Auxiliary Service - Held that:- Following decision of CCE Vs Cadila Healthcare Ltd. [2013 (1) TMI 304 - GUJARAT HIGH COURT] - respondents are eligible for the input credit of ₹ 7,01,979/-. Therefore, I do not find any infirmity in the order of Commissioner (Appeals) to the extent of allowing credit on input services. As regards availment of credit on common input services - Held that:- respondents holding centralised registration and not maintained separate accounts of input services for the trading activity as well as for the taxable service. I find from the records and findings of the OIO, there is no dispute on the fact that respondents are carrying out both trading activity and taxable service under BAS as commission agents. The Division Bench of the Tribunal in the case of Mercedes Benz India Pvt. Ltd. Vs CCE Pune-I (2014 (4) TMI 12 - CESTAT MUMBAI) has clearly held that entire credit on trading activity is not eligible and only proportionate credit with reference to turnover is eligible. - respondents are not eligible for the entire credit availed on the common input services. Since the department rightly demanded the excess credit of ₹ 6,78,459/- which is in excess of 20% of the total service tax payable, the respondents paid the excess amount and they are not eligible to take re-credit in cenvat account nor they are eligible for refund. The adjudication order rejecting the refund of ₹ 6,78,459/- and the interest amount is upheld and the L.A.A. order allowing credit is liable to be set aside.- Decided partly in favour of Revenue.
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2015 (3) TMI 88
Waiver of pre-deposit of service tax - charges for registration of car collected - Business Support Services - Held that:- In respect of the same issue in the case of My Car Pune Pvt. Ltd. vs. Commissioner of Central Excise Pune–I reported in - [2013 (6) TMI 361 - CESTAT MUMBAI], the Tribunal waived the pre-deposit of dues which were confirmed on the same ground. In view of the above stay order the pre-deposit of dues are waived and recovery of the same is stayed during the pendency of the appeal - Stay granted.
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2015 (3) TMI 87
CENVAT Credit - Whether CENVAT credit of service tax paid on input services can be taken when the service provider has paid the service tax with interest and has approched the Settlement Commission for settling the case - Held that:- when the service provider had approached the Settlement Commission, the appropriate course of action by the Commissioner is to wait for the decision of the Settlement Commission or the decision of the adjudication proceedings if the Settlement Commission has rejected the application. Therefore, we consider that the adjudication order is premature - In the result, the impugned order is set aside and the matter is remanded to the adjudicating authority - Following decision of Indian Oil Corporation Ltd. Vs. CCE, Mumbai-II [2011 (6) TMI 520 - CESTAT, MUMBAI] - Decided in favour of assessee.
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2015 (3) TMI 86
Rent-a-cab service - non-compliance with Section 35F - Held that:- Appellant has made available their buses to the APSRTC under agreement wherein the APSRTC would ply the buses on predetermined routes covered by stage carriage permits held by the owner, with a time schedule fixed by the APSRTC, and the bus owner would provide the services of drivers to the Corporation and would be paid by the corporation, hire charges per km. On these and allied facts, a prima facie view taken in the cited Stay Order to the effect that the activity of the bus owners could not be classified as rent-a-cab service. Based on this view, waiver and stay were granted in those cases, The same view has to be taken in this case also. ln other words, the present appellant has made out a prima facie case against the demand of service tax under the head 'rent-a-cab service.’ On this basis, the lower appellate authority should dispense with predeposit and dispose of the assessee’s appeal (filed against orders-in-original) on merits without insisting on any predeposit. - Matter remanded back - Decided in favour of assessee.
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Central Excise
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2015 (3) TMI 82
Restoration of appeal - Non compliance of pre deposit condition - assessee had, instead of depositing the amount in cash or through account PLA (under the Rules), sought to claim adjustment of amounts lying to its credit in its CENVAT credit account. - Held that:- It is a matter of record that the duty liability was discharged in the present instance along with interest, though beyond the stipulated period of 30 days. In these circumstances, the limited issue was whether the denial of credit facility altogether was warranted. The CESTAT had no occasion given the diversion of opinion of two of its members and the final opinion of the third member, which varied with both the members to the extent that he directed deposit of ₹ 6 lakhs, to consider the order on merits. In one sense, the order of the third member by default becomes the order of the Tribunal on the question of pre-deposit. Further, the appellant’s contentions were never considered on the merits after it complied with one member’s order of depositing ₹ 5000/-. assessee’s appeal would be considered on its merits provided it has complied and deposited ₹ 5,000/-. - Matter remanded back - Decided conditionally in favour of assessee.
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2015 (3) TMI 81
Non payment of appropriate excise duty on the scrap generated at the job worker premises from the goods sent and processed under rule 57F (4) of Central Excise Rules, 1944 - Removal of capital goods to their job workers premises without reversal of credit - Imposition of interest and penalty - Held that:- Department initiated detailed investigations on 3.3.1999 and recorded statements and detected non-payment of excise duty on scrap cleared from the job worker premises and also detected clearance of capital goods without reversal of credit during the period 1994-95 to 1998-99. The suppression of facts with deliberate intention to evade payment of duty has been clearly brought out in the findings of the adjudication order. It is evident from the records that the appellants have paid the duty only on 9.3.99 i.e. after the department detected the duty evasion. Since the suppression of facts is established beyond doubt the adjudicating authority has rightly invoked Section 11AC and Section 11AB for imposition of penalty and the interest and rightly restricted the penalty under Section 11AC and interest under Section 11AB only on the demand amount covered for the period from 28.9.1996. As held by the apex court in the case of UOI Vs Dharmendra Textile Processors once mens rea with intention to evade payment of duty is established, appellants are liable for mandatory penalty and interest under Section 11AB. - Following decision of Arun Vyapar Udyog Pvt. Ltd. [2013 (12) TMI 817 - MADRAS HIGH COURT] - demands confirmed by the Lower Authority is liable to be upheld and the appellants are liable for penalty under Section 11AC and liable for interest under Section 11AB and under Rule 57 U (6) and Rule 57U (8) of CER prospectively for the demand amount covered from 28.9.96. Whether the amended provisions of Section 11AC of the Act for availing 25% penalty is applicable to the present case. - Held that:- There is no evidence to show that payment of Section 11AB interest as well as interest demanded under Rule 57U(8) of CER and reduced penalty paid before 30 days of receipt of adjudication order. Therefore, the adjudicating authority in the impugned order confirming the demand and imposing penalty under Section 11AC and demanding interest under Section 11AB and also under rule 57U of CER equivalent to the duty payable after 28.9.96 is sustainable. Appellants are not eligible for the reduced penalty of 25% of the duty amount. - Following decision of CCE Raigad Vs Castrol India Ltd. [2012 (6) TMI 697 - BOMBAY HIGH COURT]. Impugned order imposing penalty under Section 11AC and demanding interest under Section 11AB equivalent to duty payable after 28.9.1996 and imposition of penalty under Rule 57U (6) and interest under Rule 57U (8) of CER is upheld. - However, penalty of ₹ 1,00,000/- imposed under Rule 173Q is set aside. - Decided partly in favour of assessee.
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2015 (3) TMI 80
Clarification of Tribunal's order - Tribunal in respect of issue No.3, held that the unabsorbed overheads referable to abnormal idle capacity for lack of order shall not form part of the cost of production and the demand of duty is not sustainable - Assessee submits that the demand of duty on 3rd issue is on unabsorbed overheads and cost of closing stock. It appears from para 7.4 of the order that the words closing stock were escaped from the notice of the Tribunal. He submits that in order to implement this order, it may kindly be clarified that the words cost of closing stock should be incorporated therein - Held that:- It is apparent on the face of record, the unabsorbed overheads referable to abnormal idle capacity for lack of order would include the closing stock, which shall not form part of the cost of production - inadvertently the words the cost of closing stock were omitted in the said paragraph. Hence, it is required to clarify that the words cost of closing stock would be included in para 7.4 of the final order of the Tribunal. - application filed by the applicant is not for review of the order. It is an error apparent on the face of the records that words cost of closing stock should be incorporated in the paragraph 7.4 of the Final Order. The Ld. Special Counsel emphasizes that the applicant should be approached the department for implementation of Final Order in respect of the 3rd issue. We do not find any force in the submission of the Ld. Special Counsel. Since the Tribunal noticed the omission of the words the cost of closing stock in paragraph 7.4 of the Final Order, it should pass necessary order for rectification/ clarification of the said Interim Order, in the interest of justice. - It is clarified that in paragraph 7.4 of the Final Order it would be read as the unabsorbed overheads referable to abnormal idle capacity for lack of order and the cost of closing stock shall not form part of the cost of production and the demand of duty is not sustainable - Decided in favour of appellant.
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2015 (3) TMI 79
Waiver of pre deposit - Input service credit - product liability insurance service - Held that:- Adjudicating authority has dropped the proceedings and allowed the input service credit on the product liability insurance. I find from the decision of the Tribunal in the case of Rotork Control (India) Pvt. Ltd. (2010 (6) TMI 336 - CESTAT, CHENNAI), dealt the identical issue of product liability insurance. - applicants have made out a prima facie case for full waiver of pre-deposit of duty along with interest and penalty. In view of the above, I waive pre-deposit of the entire amount of duty along with interest and penalty and stayed its recovery till the disposal of the appeal. - Stay granted.
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2015 (3) TMI 78
Waiver of pre deposit - Input service credit - Trading activity - Held that:- Applicant in their reply to the show cause notice categorically disputed the quantification of the demand in so far as that the demand was determined on the total value of the trading turnover of the entire company, which is ex-facie bad in law. We find that the adjudicating authority had not given any findings on this issue. It is noticed that the Tribunal in the case of Mercedes Benz India Pvt. Ltd (2014 (4) TMI 12 - CESTAT MUMBAI), held that exempted goods in Rule 2(e) CCR includes trading in prospective nature from 01.04.2011. Prima facie, we find in the present case, the applicants have reversed the proportionate input service credit and therefore, it is a fit case for waiver of predeposit of the entire amount along with interest and penalty. In view of the above, we waive pre-deposit of the entire amount along with interest and penalty and stayed its recovery till the disposal of the appeal - Stay granted.
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2015 (3) TMI 77
Extension of stay beyond the period of 365 days - Power of Tribunal - Held that:- issue relating to competency of this Tribunal to extend the stay beyond 365 days was examined by the larger bench of this Tribunal in the case of M/s Haldiram India Pvt. Ltd. & Others [2014 (10) TMI 724 - CESTAT NEW DELHI (LB)]. The larger bench held that if the delay in disposal of the appeal is not on account of any commission or omission on the part of the appellant and where the Tribunal is satisfied that the appellant was ready and willing for disposal of the appeal and/or had not indulged in any protractive strategies, extension of stay could be granted (beyond the period of 365 days) by passing a speaking order. In the present case, we are satisfied that the delay was not on account of any omission or commission on the part of the appellants but due to the huge pendency of appeals before this Tribunal. Accordingly, we extend the stay beyond 365 days and till the disposal of the appeals. - Stay extended.
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2015 (3) TMI 76
Stay application - Held that:- Appellants state that they have deposited the mandatory amount as required under section 35F of the Central Excise Act, 1944. In this view of the matter, no separate order of stay is required under the mandatory statute. - Appeal withdrawn.
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2015 (3) TMI 75
Waiver of pre deposit - Held that:- issue involved in the present case is similar to the one relating to the previous pre-deposit order of the Tribunal involving the period August, 2003 to March, 2008. The present demand is for the period April, 2009 to March, 2010. In view of the said order dated 08.02.2012, we are of the opinion that the applicant could able to make out a prima facie case for total waiver of pre-deposit of dues adjudged. Accordingly, the pre-deposit of dues adjudged is waived and its recovery stayed during the pendency of the appeal - Stay granted.
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2015 (3) TMI 74
Waiver of predeposit - Availment of ineligible credit - Held that:- Applicant is a manufacturer of computers and they are paying central excise duty and are availing CENVAT credit on inputs and input services. I find that the Tribunal in the case of KPMG (supra) has held that ‘input service’ is wide and the scope is enlarged. Applicant has made out a prima facie case for waiver of predeposit of entire dues. Accordingly, predeposit of duty along with interest and penalty are waived and recovery thereof stayed during the pendency of the appeal - Stay granted.
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2015 (3) TMI 73
Waiver of predeposit - centralized registration for payment of service tax in respect of all the seven units - discharge of service tax under reverse charge mechanism - Held that:- prima facie case has been made out by the appellant. Accordingly, predeposit of tax along with interest and penalty is waived and its recovery is stayed till disposal of the appeal - Stay granted.
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CST, VAT & Sales Tax
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2015 (3) TMI 85
Levy of tax - Password for e-filing of return not provided by Department - Held that:- Provisions under Section 23 of the TNVAT Act is not applicable to the facts of this case. There is no dispute with regard to the fact that there is no assessment order in the previous year and the contention that similar issue is pending before the Hon'ble Supreme Court cannot be accepted as admittedly, the case of the petitioner does not fall under Section 23 of the TNVAT Act against this impugned order passed under Section 84 of the TNVAT Act against which remedy lies under Section 54(1) of the TNVAT Act. If the petitioner has any grievance against the order that may be passed, if he is so aggrieved, it is open to the petitioner to approach the competent authority under Section 55 of the TNVAT Act. Since there is dispute about the applicability of the provisions of the Act, this Court is not inclined to interfere with the impugned order. - Decided against assessee.
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2015 (3) TMI 84
Reversal of input tax credit - petitioner filed petitions under Section 84 of the Tamil Nadu Value Added Tax, 2006 for rectification - Request of rectification denied by Revenue - petitioner contended that the petitioner's vendors were all registered dealers on the file of the department and the same was available with the department and the department ought to have taken action against the vendors for not remitting the tax collected by them. Without doing so, the department could not deny the request made by the petitioner. - Held that:- Additional Government Pleader (Taxes) appearing for the respondent is unable to refute the factual legal submissions. Hence, I have no other option except to set aside the impugned orders and remit the matters back to the authority concerned to consider the case of the petitioner afresh on merits. - Matter remanded back - Decided in favour of assessee.
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2015 (3) TMI 83
Waiver of security bond or bank guarantee - Conditions imposed by the appellate authority in respect of stay granted in favour of the petitioner firm - Held that:- Petitioner firm has already paid 25% of the amount in question at the time of preferring the appeal and in some of the cases the petitioner firm has paid the amount between 50% and 90% of the impugned demand notices issued by the respondents. petitioner firm has paid the amount towards his liability, this court, considering the amount sofar paid in each of the Writ Petitions, modifies the conditions imposed by the appellate authority only insofar as to the grant of Bank Guarantee or Security Bond. The petitioner firm will pay amount as stated in order and shall execute a personal bond for the balance tax amount and for the entire penalty amount. - It is made clear that if the petitioner firm fails to adhere any one of the conditions imposed by this Court through this order, this modification granted by this Court shall stand cancelled without any reference to this Court and the order of the appellate authority will get automatically restored. - Decided conditionally in favour of assessee.
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Indian Laws
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2015 (3) TMI 65
Section 138 of the Negotiable Instruments Act - Presentation of cheque by the complainant at place of his choice are not sufficient to confer jurisdiction upon the courts where cheque presented - Held that:- The view taken by the Magistrate based as it is on the decision of this Court in Harman Electronics (P.) Ltd. [2008 (12) TMI 677 - SUPREME COURT OF INDIA] does not, in our opinion, call for any interference by this Court, in the light of the pronouncement of this Court in Dashrath Rupsingh Rathod [2014 (8) TMI 417 - SUPREME COURT], where this Court has examined the issue at some length and held that presentation of a cheque by the complainant at a place of his choice or issue of notice by him to the accused demanding payment of the cheque amount are not sufficient by themselves to confer jurisdiction upon the courts where such cheque was presented or notice issued. - Decided against the appellant.
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2015 (3) TMI 64
Delay in filing appeal - Misplacement of the papers - Section 5 of the Limitation Act - Held that:- Unfortunately, the learned Single Judge of the High Court altogether ignored the gapping holes in the story concocted by the Corporation about misplacement of the papers and total absence of any explanation as to why nobody even bothered to file applications for issue of certified copies of judgment for more than 7 years. In our considered view, the cause shown by the Corporation for delayed filing of the appeals was, to say the least, wholly unsatisfactory and the reasons assigned by the learned Single Judge for condoning more than 7 years delay cannot but be treated as poor apology for the exercise of discretion by the Court under Section 5 of the Limitation Act. The impugned order is set aside and the appeals filed by the respondent against the judgments of the trial Court are dismissed.
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