Whether the sale of 100% share-holding of the Respondent Company to the New Management constitutes a ‘transfer’ as envisaged by Section 2(47) of the Income Tax Act, 1961 and would amount to succession of business

Hon’ble Tribunal was right in law holding that Poultry Sheds used for the business of hatching constitute ‘Plant’ for the purpose of granting depreciation particularly in the light of decisions of the Hon’ble Supreme Court in the following cases wherein it has been specifically held that such buildings could not be treated as plant for the purposes of depreciation under Section 32 of the Income Tax Act, 1961
The law is clear that if it is found that the building has been designed specifically to further the cause of manufacture or production then the same is a plant

Service Tax-Larger Bench: Whether bottling of liquor amounts to manufacture of liquor or only packaging so as to attract the Service Tax?
bottling of liquor comes within the ambit and sweep of manufacture within the meaning of clause (f) of Section 2 of the Central Excise Act, 1944 in view of the definition contained in Section 65(76)(b) especially keeping in view the exclusionary facet and further more regard being had to the circular issued by Central Board of Excise and Customs

ITAT was legally justified in upholding deletion of the penalty of Rs.4,21,230/- by the CIT(A) imposed under section 273(2)(aa) of the Income Tax Act,1961 by the A.O. whereas the assessee has furnished wrong estimate of advance tax knowing fully well that the same was wrong and reason to believe to be untrue, since the sales tax liability is an income of the assessee as, the same is liable to be deductible in computing against the taxable income

the insertion of the explanation under Section 2 (d) providing for a fiction in law by a deeming clause in definition of “goods” to include any article, material or substance which is capable of being bought and sold for a consideration, and to treat such goods as marketable, would make the 'Aluminium Dross and Skimming' liable to excise duty. Where the goods are specified in the schedule, they can be subjected to duty, if they are produced, or manufactured by the person on whom duty is 'proposed'.

Whether the petitioner is entitled to the benefit of exemption notification issued under section 25 of the Customs Act, 1962 bearing notification no.208/88Cus dated 29th June 1988 and no.159/88Cus dated 13th May 1988 in respect of a consignment which arrived in the Port of Bombay after rescinding of the notifications

applications filed before settlement commission on or before 01/06/2007 and assailing orders of Settlement Commission, on the premise that if impugned order of Settlement commission U/s 245-D(4) of Income Tax Act, 1961 (“Act”) is held to be legally unsustainable, in such an eventuality, whether matters are to be remitted back to settlement commission to examine afresh in accordance with law or to the assessing authority in view of proceedings initiated under Chapter-XIX-A on being held to be abated in terms of S.245- HA of the Act

Petition under Article 226 of the Constitution of India praying for a writ of Mandamus directing the respondents herein to forbear from enforcing or relying upon the provisions of Section 40(a)(ia) of the Income Tax Act, 1961 to disallow the revenue expenditure of the petitioners incurred on the purchase of Printed Stationery and Packing Materials for non-deduction of tax at source under Section 194C of the Income Tax Act, 1961 while making the assessments of the petitioners either under Section 143 or under Section 147 of the Income Tax Act, 1961

Initiation of reassessment proceeding is permissible where it is found that the Assessing Officer had passed an order of assessment without any application of mind and such application of mind can be found out from the order of assessment itself inasmuch as, in the event the order of assessment does not contain any discussion on a particular issue, the same may be held to have been rendered without any application of mind

the amounts advanced for business transaction between the parties, namely, the assessee company and its sister concern M/s. Pee Empro Exports Pvt. Ltd. was not such to fall within the definition of deemed dividend under Section 2(22)(e) of Income Tax Act.

penalty under Section 11AC of the Act is punishment for an act of deliberate deception by the assessee with an intent to evade duty by adopting any of the means mentioned in the Section. Therefore Dharmendra Textile Processors case is not an authority for the proposition that in every case of non payment or short payment of duty the penalty clause would automatically get attracted and that the authority had no discretion in the matter

Assessee is not liable to deduct the taxes under section 194-I of the act in respect of the amount shared by the assessee and remitted to the Franchisee for infrastructure claims
there is no payment of rent by the assessee company to the licencees/franchisees

The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the sitution so warrants.  What is binding is, of course, the ratio of the decision and not every expression found therein.
The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction.  It does not extend beyond its territorial jurisdiction.

Whether non-filing of appeal against the assessed Bill of Entry in which there was no lis between the importer and the revenue at the time of payment of duty will deprive the importer of his right to file refund claim under section 27 of the Customs Act, 1962

the concept of redemption fine arises in the event the goods are available and are to be redeemed. If the goods are not available, there is no question of redemption of the goods. The question of confiscating the goods would not arise if there are no goods available for confiscation nor consequently redemption. Once goods cannot be redeemed no fine can be imposed.

Income Tax Appellate Tribunal was right in  holding that the assessee was entitled to claim deduction for bad debts of Rs.38,20,417/- in respect of the money lending business which was closed down during the accounting year relevant to the assessment year in 1998-99, without following the ratio of the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Gemini Cashew Sales Corporation and contrary to the provisions of Section 36(2)(i) of the Income Tax Act

ITAT was correct in law in allowing depreciation to the assessee on the actual cost of the germplasm seeds and the actual cost incurred by the assessee much before becoming an assessee can still be treated as an actual cost to the assessee when depreciation has to be claimed.

Whether on the facts and in the circumstances of the case, the ITAT was right in law in holding that in view of circular issued by the CBDT, disallowance under Section 40(a)(i) of the Act was not warranted ?
Whether on the facts and in the circumstances of the case, the assessee was entitled to claim deduction of the demurrage charges of Rs.1,08,53,980/- paid to Foreign company, without deducting tax on it, under Section 40(a)(i) of the IT Act, in view of the circular No.723 dated 19.9.95, issued by the CBDT ?

Service Tax: The Tribunal has also extended the benefit of Section 80 of the Finance Act, which says that notwithstanding anything contained in the provisions of Section 76 or 78 of the Finance Act, no penalty is to be imposed on the dealer-respondent for any failure referred to in those provisions. The only condition is that an assessee shall show a reasonable cause for the said failure.
there are pure findings of fact recorded by the Tribunal with regard to the reasons having been shown by the dealer respondent and the bona fide of the dealer-respondent has been accepted in terms of Section 80 of the Finance Act as well. Therefore, we are not inclined to admit the appeal as no substantive question of law would arise for determination, which is sine qua non for admission of appeal under Section 83 of the Finance Act read with Section 35-G of the Excise Act.

Service Tax: refund of Rs.8,67,800/- being service tax paid under mistake of law on export of services along with appropriate interest.
if what was paid cannot be taken to be duty of excise, the bar of limitation under Section 11B (1) cannot be applied. This is on account of the fact that the bar of limitation prescribed under Section 11B (1) applies only to "any person claiming refund of any duty of excise and interest". Therefore, I am of the considered view that the claim of the petitioner for refund can be entertained by this Court, since there is no dispute about the fact that no service tax was payable by the petitioner and as a corollary, what was paid by them was not service tax.

the Tribunal has dismissed the appeal on the absence of the appellant only on one occasion. The fact that the appellant immediately thereafter applied for restoration of the appeal shows his intention that he was interested in prosecuting the appeal and may be he had a justifiable cause for his absence on one occasion. In the circumstances, the Tribunal ought to have restored the appeal to the file.

Larger Bench: For the purposes of deduction under Chapter VIA, the gross total income has to be computed inter alia by deducting the deductions allowable under section 30 to 43D of the Act, including depreciation allowable under section 32 of the Act, even though the assessee has computed the total income under Chapter IV by disclaiming the current depreciation.

Whether the Tribunal’s observations that the A.O. may consider the applicability of the provision of section 14A of the Act go beyond its jurisdiction ?
we quash and set aside the order of the Tribunal to the extent it directs consideration of applicability of section 14A of the Act.

Larger Bench: A show cause notice under Section 11A of the Act cannot be issued during the pendency of assessment proceedings.
the provisions of Section 11A get triggered only upon completion of the final assessment proceedings.

Import of Palm Oil-The benefit of concessional rate of duty is admissible on the imported goods which have not been used or short received for the purpose of which these were imported
The assessee cannot be denied the benefit of concessional rate of duty on this amount of oil. It is not the case of the revenue that this oil has been used for some other purpose. This was oil which never reached the assessee

Service Tax: The case of the petitioner is that commission received by the petitioner under the agreement is not liable to service tax on the ground that the same is export of service, which is exempt from payment of tax. On this stay application, the Tribunal has passed impugned order dated 31.7.2009 directing the petitioner to make pre-deposit of Rs.70 crores

Whether the ITAT was correct in law in deleting the addition of interest income from FDRs amounting to Rs.6,85,624/- under the head “Income from Other Sources” by treating it as business income?
Whether the ITAT was correct in law in allowing the deduction under Section 80HHC of the Income Tax Act, 1961 when there was no profit from export business?”

Whether on the facts and in the circumstances of the case the Tribunal erred in law in holding that the appellant is not an “industrial undertaking‟ and, therefore, not entitled to deduction under section 35D of the Act?
Whether on the facts and in the circumstances of the case the Tribunal erred in law in not appreciating the amendment to section 35D of the Act, vide Finance Act, 2008 is clarificatory in nature and, therefore, should be applicable retrospectively?”

(i) Whether the Hon'ble Tribunal was justified in denying a part of Modvat Credit taken after expiry of six months when the major part of the Modvat Credit due was taken within the period of six months as contemplated under the Rules?
(ii)Whether the Hon'ble Tribunal was justified to deny a part of the Modvat Credit inadvertently not taken by the applicant in terms of Rule 57G(5) of the Central Excise Rules 1944 when the major part of Modvat Credit due was taken within six months of the date of issue of the duty paying documents?

the Hon’ble Tribunal was right in allowing the assessee for reversal of credit taken, instead of insisting upon the assessee to pay an amount equal to 8% or 10% of total price of the exempted goods as per the Rules 6(3)(b) of Cenvat Credit Rules 2002

The deduction under Section 80-IA was allowed at Rs.2427.79 lacs as against admissible deduction of Rs.1962.55 lacs, i.e. to the extent of gross total income calculated under the normal provisions of the Act, meaning thereby, excess deduction to the extent of Rs.465.24 lacs. The mistake resulted into over assessment of loss to the extent of Rs.465.24 lacs.
The provision for doubtful debts at Rs.818.03 lacs debited in the Profit and Loss account was not added back for calculating the book profit under Section 115JB. The mistake resulted into underassessment of income to the extent of Rs.818.03 lacs.

the warrant of authorization must be issued individually by the Director/Commissioner at the time of issuing the same. If the same is not issued individually, then assessment cannot be made in an individual capacity as done by the Assessing Officer in the instant case. The warrant was issued jointly, as stated hereinabove, so the assessment will have to be made collectively in the name of both the persons in the status of AOP/BOI. Thus, the Tribunal has rightly held that assessment could not be framed in an individual capacity but it should be framed either as association of persons or as body of individual.

Whether interest and penalty is imposable even if C.E duty has been deposited by the assessee before Show Cause Notice in case where the said duties deposited not voluntarily but on detection by the department.

from which date the period of limitation provided under Section 154 of the Act is to be reckoned.
once we opine that the assessment order had merged with the order of CIT(A) passed on 28.6.2004, the limitation for the purpose of sub-section (7) of Section 154 is to be counted from this date
No doubt, the rectification order passed under Section 154 would mean the assessment order as rectified and the assessment order is not obliterated thereby. However, what would be the position when assessment order is not challenged and amended by the appellate authority. Once rectification order under Section 154 of the Act is passed it would mean that the appeal effect order is rectified.

whether the receipt on account of exchange rate fluctuation of foreign exchange receipt is a capital receipt or revenue receipt irrespective of the source of the said income. An alternate plea was also taken by the Revenue to the effect that 22% of the funds were utilized for working capital, which is in a nature of circulating capital and therefore, 22% of the gain on account of exchange rate fluctuation is to be held as revenue receipt

Whether the Tribunal was correct in holding that an appeal was maintainable u/s.248 of the Act, even though there was no adjudication by the Authorities under the Act in accordance with Section 195(3), (4) & (5) read with Section 200 of the Act?
Whether the Tribunal was correct in holding that the payments made by the Assessee Company for purchase of software from Aaymetrix Asia Pacific, Singapore; Peritus Software Service Inc., USA and Astral Computers Pvt. Ltd., Singapore for the amounts of Rs.3,43,095/-, Rs.47,89,419/- and Rs.8,89,611/- was not liable to income tax in India and consequently no TDS as held by the Assessing Officer and confirmed by the Appellate Commissioner needs to have been deducted?

Service Tax: The connected appeals are filed by the Commissioner of Central Excise against the orders of the Tribunal holding that respondent is not liable to pay service tax on "user's fee" collected at the rate of Rs.500/-from every outgoing international passenger.

Whether the penalty amount mentioned in Section 11AC of the Central Excise Act, 1944, is the discretion of the Quasi Judicial Authority viz., the Tribunal?
once the Tribunal arrived at a conclusion that the allegation of suppression of the fact with an intend to evade duty of goods was sustainable and levy of penalty under Section 11AC cannot be resisted by the Assessee, it is axiomatic that such levy of penalty as provided under Section 11AC should be equal to the amount of duty levied under Section 11A(2) of the Act

Whether on the facts and in the circumstances of the case and in law, the Hon’ble ITAT erred in not appreciating that the assessee had failed to pay advance tax and hence section 234B and 234C were rightly invoked ?
 the deductee has already discharged tax liability with interest payable under Section 201(1)(a) of the Act. As such no further interest can be claimed by the revenue from the respondents either under Section 234A or 234B or 234C of the Act. The view taken by the Tribunal for the reasons stated cannot be faulted

Service Tax: the petitioner who is providing service by way of security guards to B.S.N.L., Gorakhpur, have sought a direction to the respondents to pay entire service tax along with 18% interest and penalty to the petitioners, which is payable to Central Excise, Division Gorakhpur as demanded by Central Excise Department
The B.S.N.L. is not disputing its liability to pay the service tax. This being so, they are required to pay the service tax amount to the petitioner so that the petitioner may deposit the same with the Excise Department

SVB Questionaire-Extra Duty Deposit on import under Provisional Assessment-As per the law declared by the Supreme Court, the Board circulars are binding on the officer including the proper officer of customs. The discretion of such officer is now limited by the said board circular. It is not open to claim more than one per cent. This demand of one per cent is further subject to paragraph no.9 of the circular which sets out that if the final assessment is not completed within four months then the respondents are to discontinue the extra duty deposit. The Board circular therefore in so far as the proper officer is concerned, is clear.