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appellate tribunal

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Custom, Excise & Gold (Control) = In order to avail of MODVAT/CENVAT credit, an assessee has to satisfy the assessing authorities that the capital goods in the form of components, spares and accessories had been utilized during the process of manufacture of the finished product. Admittedly, in this case the appellant was not able to identify the machinery for which the goods in question had been used. In the absence of such identification, it was not possible for the assessing authorities to come to a decision as to whether MODVAT credit would be given in respect of the goods in question.”- It is also not in dispute that the appellant had purchased some machinery from others and such machinery had not even been unpacked by it and in the exact condition it had been transported along with the machinery manufactured by it to Vietnam. Thus, the appellant did not use the purchased machinery in its premises or in its factory and therefore, necessary condition incorporated in the Rules for availing credit of the MODVAT had not been complied with. To avail the MODVAT credit, the input on which excise duty is paid must be used in the manufacture of the final product in the factory of the assessee. The machinery purchased by the appellant had not even been tested or was not even unwrapped in the factory of the appellant. In case of such an admitted fact, it cannot be said that the machinery so purchased from others was used by the appellant in the manufacture of the sugar plant. 25. In the instant case, the appellant had only acted as a trader or as an exporter in relation to the machinery purchased by it, which had been exported and used for setting up a sugar plant in a foreign country. In any case, it cannot be said to have manufactured that plant in its factory. Moreover, it is also clear that the appellant-assessee did not pay any excise duty on the sugar plant set up by it in Vietnam and therefore, there cannot be any question of availing any MODVAT credit. 27. For the aforestated reasons as well as for the reasons stated by the Tribunal in the impugned order, we are of the view that the Tribunal had come to a correct conclusion and the conclusion so arrived at by the Tribunal does not require any interference. 28. The appeals are, therefore, dismissed with no order as to costs.

 published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40718      NON-REPORTABLE     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 1 CIVIL APPEAL NOS.5509-5510 OF 2003   M/S. KCP Ltd. …..APPELLANT   VERSUS Commissioner of Central Excise, Chennai ….RESPONDENT   1 J U D G M E N T   1 ANIL R. DAVE, J.   1. … Continue reading

SERVICE MATTER = where the respondent allegedly worked in the College as part- time Lecturer without any appointment letter and without any selection process. Since the Society never issued any letter of appointment a letter of termination was also not served upon the respondent. 25. As stated above, in the absence of any appointment letter, issued in favour of the respondent as he was temporary/part-time lecturer in the College, there cannot be any legitimate expectation for his continuing in the service.. This was the reason that when in the years 1995 and 1996, two persons were appointed one after the other on the post of Lecturer in History, the respondent did not challenge the said appointments. Even assuming that the respondent was permitted to work in the College as part-time lecturer for some period, the action of the management of the college asking him to stop doing work cannot be held to be punitive. The termination simplicitor is not per se illegal and is not violative of principles of natural justice. 26. After giving our anxious consideration in the matter and analyzing the entire facts of the case, we are of the view that the impugned order passed by the Education Appellate Tribunal and the High Court cannot be sustained in law and are liable to be set aside. 27. For the reasons aforesaid, these appeals are allowed and the impugned orders are set aside.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2948 OF 2013 (Arising out of the Special Leave Petition (C) No.27031 of 2011) B.T. Krishnamurthy …. Appellant (s) Versus Sri Basaveswara Education Society & Ors. ….Respondent (s) WITH CIVIL APPEAL NO. 2949 OF 2013 (Arising out of Special Leave Petition( … Continue reading

Whether the Ld.CIT(A) is lawfully justified in law in holding that income from sale of Bonsai plants is agricultural income when no basic agricultural operations are carried out but only subsequent non-basic operations are carried out at the location of the plants where it was grown wild or spontaneously and little operation takes place inside the Farm for a very brief period before the product is saleable without any conjunction with basic operations ( as no basic operation need to be undertaken in this case) clearly violating the settled law of the and as enunciated by the Hon’ble Apex Court in CIT Vs. Raja Binoy Kuniar Sahas Roy [1957] 32 ITR 466.”The bonsai tree is nothing but a product on which primary and basic operation of agriculture is carried insofar as in order to make the biological change in it, it had to make eligible continue to live within a limited area. This clearly indicates that the trees/plant uprooted from soil and taken to farm in pot or polythene bags filled with soil for sale or transportation will not affect or change the nature of agricultural operations. Bonsai plants have been prepared on the land by the assessee and there are several agricultural operations, as explained in brief and observed in the order of the authorities below, that transplanting in a suitable container including pots and kept at the proper place i.e., green house or in the shed and after performing several operations, such as weeding, watering, manuring etc., they are made ready for sale as bonsai plant. It was not necessary to plough the land which is a must for implanting a seed. The very nature of the plant ultimately nurtured, is such that it has to be taken care of independently. Once the plants are able to live or out grow the basic agricultural operation carried out and they are ready for sale insofar as the bonsai is to live the life of the original tree which fetches a value

Reena Panda, Balasore vs Department Of Income Tax on 25 June, 2012 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK Before : Shri K.K.Gupta, AM, and Shri K.S.S.Prasad Rao, JM ITA No.084/CTK/2012 and C.O.No.18/CTK/2012 (Assessment Year 2008-09) (C.O. filed by the assessee) Income-tax Officer, Ward 1, Versus Smt. Reena Panda, Ichhapur, Balasore. Bhanaga, Balasore … Continue reading

Act: Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002: s.18 – Requirement of pre-deposit of amount in terms of s.18 – Whether mandatory – Held: Right to file appeal u/s.18 is conferred subject to condition laid down in the second proviso thereto – The second proviso postulates that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the Debts Recovery Tribunal, whichever is less – However, under the third proviso to the sub-section, the Appellate Tribunal has the power to reduce the amount, for the reasons to be recorded in writing, to not less than 25% of the debt, referred to in the second proviso – Thus, there is an absolute bar to entertainment of an appeal u/s.18 of the Act unless the condition precedent, as stipulated, is fulfilled – In the instant case, the order of the Appellate Tribunal, entertaining borrower’s appeal without insisting on pre-deposit was clearly unsustainable – In the notice issued to the borrower u/s.13(2) of the Act, the debts due was Rs. 52,42,474/- – Since the Debts Recovery Tribunal had not determined the debt due, the borrower is directed to deposit with the Appellate Tribunal an amount of Rs. 15 lakhs within a period of four weeks – Thereafter, appeal to be entertained and decided on merits. s.18, second proviso – Right to file appeal subject to conditions – Held: When a statute confers a right of appeal, while granting the right, the legislature can impose conditions for the exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions, rendering the right almost illusory – Bearing in mind the object of the Act, the conditions hedged in the second proviso cannot be said to be onerous – Interpretation of statutes. The appellant-borrower filed an appeal under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The Debt Recovery Tribunal did not entertain the appeal on a technical ground. The Debt Recovery Appellate Tribunal while allowing the application filed by the appellant under Section 18 of the Act exempted him from making any deposit in terms of second proviso to Section 18 of the Act. The question which arose for consideration in the instant appeal was whether the Appellate Tribunal has the jurisdiction to exempt the person, preferring an appeal under Section 18 of the Act from making any pre- deposit in terms of the said provision.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2681 OF 2011 [Arising out of S.L.P. (C) No. 5488 of 2011] Narayan Chandra Ghosh — Appellant (s) VERSUS UCO Bank & Ors. — Respondent (s) O R D E R 1. Leave granted. 2. This appeal by the borrower is directed … Continue reading

TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL for the recovery of the outstanding subscription charges from the respondents. 2 it was submitted that the petitioner no. 2 entered into a franchisee agreement with the respondent on 13.02.1999 on behalf of petitioner no. 1. 8 From February 1999 onwards, the respondent had been availing cable signals provided by the petitioners till January 2009. The respondent migrated to other competing MSO without clearing the outstanding dues to the petitioners. 18. According to the petitioners, the statement of accounts of the petitioner reflects the outstanding dues of Rs. 5,32,028/- as on date against the respondent. It sent a communication dated 4.12.2010 to the respondent through it’s legal counsel wherein it was informed to the respondent that the respondent was liable to pay an amount of Rs. 5,32,028/-. A reminder was also sent on 8.6.2011. 19. The petitioner has filed a copy of the agreement which was executed on 13.02.1999 between the petitioner no. 2 and the respondent. The terms of this agreement was valid till such time clause 9 of the agreement is valid. That means the agreement would continue till it is terminated by one of the parties. As no party disconnected the signals till January 2009, the agreement was subsisting till then.9 20. This petition has been filed on 05.12.2011. Any outstanding for the period prior to December 2008 will be covered by the Law of Limitation. 21. According to the statement of account of the petitioner, the total amount will be reduced by the amount of outstanding at the end of November 2008 i.e. 4,92,140/- . Therefore, the petitioner is entitled for principal amount of Rs. 39,888/- (Rs. 5,32,028/- -Rs. 4,92,140/-). 22. Accordingly, I allow the amount of Rs. 39,888/- may be recovered from the respondent alongwith pendentilite interest and future interest @ 9% per annum from the respondent. ………………..

   TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL    NEW DELHIDated 11th May, 2012Petition No.471(C) of 2011M/s Wire and Wireless India Ltd. & Anr. …PetitionersVs.M/s Anil Cable Network …RespondentPetition No.470(C) of 2011M/s Wire and Wireless India Ltd. & Anr. …PetitionersVs.M/s Rannson Cable Network …RespondentBEFORE:HON’BLE MR. P.K.RASTOGI, MEMBERFor Petitioner :Mr.Tejveer Singh Bhatia, AdvocateFor Respondent :NoneJUDGEMENT These petitions … Continue reading

TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL Release of Performance Bank Guarantees as the roll out obligation was performed=It is seen that the petitioner has fulfilled its roll out for the 2 nd phase within three years of issue of start up spectrum. In all these cases, the test certificate has been issued by TERM Cell based on registration with Term Cell, it is seen that the roll out obligation have been completed in all the cases starting from November 2010 to Jan 2011. If the roll out of 2 nd phase has been done within 3 years of date of start up spectrum, there is no need to go into the issue of various contentious issues related to definition of start up spectrum, delay in SACFA clearance etc. These become immaterial. Therefore, we do not agree with the submissions of the respondent that they are unable to decide the same due to our order dated 13.01.2012. 20. Therefore, we are of the opinion that the petitioner is entitled for the release of PBG in respect of (a) Maharashtra; (b) Andhra Pradesh ; (c) Gujarat; (d) Rajasthan; (e) Mumbai ; (f) Karnataka; (g) Delhi; (h) 28 Punjab; (i) Uttar Pradesh(East); (j) Kerala; (k ) Madhya Pradesh; (l) Haryana; (m) Uttar Pradesh(West); (n) Kolkatta. However, if the LD amount imposed on the petitioner is to be released, the petitioner will provide the PBG to the equal extent. 21. The chart shows that there was abnormal delay in meeting out the roll out obligation for the Ist phase in respect of following circles : Orissa, North-East, West Bengal, Bihar, Assam, J & K There is a delay in meeting Ist phase roll out obligation in case of Himachal Pradesh also. According to the respondent, the calculation of LD for both Ist and 2 nd phase roll out obligation has to be done and the same is pending for calculation by them. The respondent cannot hold the PBGs indefinitely without taking any action on its part. In view of the abnormal delay in fulfilling its Ist phase roll out obligation by the petitioner, we do not propose to order any release of PBG at present in respect of these seven circles. However, the respondent is directed to take expeditious action for calculation of the LD amount, if any, and as early as possible but not later than 3 months. The petitioner will be at 29 liberty to approach this Tribunal, if any occasion arises thereafter on the same cause of action. 22. Regarding Tamil Nadu and Chennai Circles, i.e. Petition Nos. 512 of 2011 and 513 of 2011, the petitioner got CMTS licenses and not UASL licenses. The relevant conditions related to PBG and roll out obligations are different. Therefore, we do not propose to pass any order at present in respect of these circles. The Petition No. 512 and 513 of 2011 will be heard separately. 23. In view of the aforementioned reasons, these petitions are partly allowed in terms of aforementioned directions

TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL NEW DELHI Dated 11 th April, 2012 Petition No.491 of 2011 Aircel Limited (Maharashtra) …Petitioner Vs. Union of India,New Delhi …Respondent Petition No.492 of 2011 Aircel Limited (A.P.) …Petitioner Vs. Union of India,New Delhi …Respondent Petition No.493 of 2011 Aircel Limited (Gujarat) …Petitioner Vs. Union of India,New Delhi …Respondent … Continue reading

IN THE INCOME TAX APPELLATE TRIBUNAL -.“Whether in the facts and circumstances of the case, the Assessing Officer was right in adding the amount of liabilities being reflected in the negative net worth ascertained by the auditors of the assessee to the sale consideration for determining the capital gains on account of slump sale?” – From the above discussion it clearly emerges that if a subsequent Bench of the Tribunal is disinclined to follow the view taken by an earlier Bench on a particular issue, the only course open before it is to make a reference to the Hon’ble President for the constitution of Special bench so that the issue may be finally decided by a Larger Bench. Notwithstanding the fact that the substantial question of law raised in the order of the earlier Bench has been admitted by the Hon’ble High Court, there are no fetters on the Tribunal in hearing the case in Special Bench and rendering the ITA No.4977 /Mum/2009 (SB) M/s.Summit Securities Limited. 19 decision which would prevail upon and become a binding precedent for the other Benches of the Tribunal. The learned Counsel for the assessee could not point out even a single judgment in which the Hon’ble High Court abstained the Tribunal from deciding the issue through Special bench during the pendency of appeal before it. With utmost humility there cannot be such a decision for the manifest reason that the justice delivery system has to take its own course and cannot wait in eternity for a higher judicial body to decide the issue first. Here it is important to mention that we are dealing with a situation in which only a substantial question of law has been admitted by the Hon’ble High Court. It is not as if the said question of law has been finally decided. Situation may be different where the said substantial question of law receives consideration by the Hon’ble High Court and a final verdict is given. In such a case the parties before the Tribunal may apply for the withdrawal of the reference before the Special Bench provided the facts and circumstances of such case are similar to the one decided by the Hon’ble jurisdictional High Court. Such withdrawal may sound justified as proceeding with the matter would be an exercise in futility in the face of the judgment of the Hon’ble jurisdictional High Court. But where only a substantial question of law has been admitted by the Hon’ble High Court and the case is yet to come up for hearing, which may take several years, there is no reason whatsoever for any party to approach the Tribunal for the withdrawal of the reference to the Special Bench on the point. We, therefore, hold that the reference to the Special Bench cannot be withdrawn merely for the reason that the Hon’ble High Court has admitted the identical question of law in another case. 30. Before parting, we want to make it absolutely clear that the above discussion has been made in view of the Hon’ble President placing for our consideration and decision the preliminary objection raised on behalf of the assessee for the withdrawal of reference to the Special Bench. We have not touched upon, nor we have jurisdiction to call in question the powers of President to constitute or deconstitute any Special Bench. He has abundant powers in the matter of constituting or withdrawing reference to the Special Bench in the facts and circumstances of each case. Our observations in ITA No.4977 /Mum/2009 (SB) M/s.Summit Securities Limited. 20 this order should not be construed in any manner as eclipsing his powers in this regard. 31. In the result the preliminary objection raised on behalf of the assessee is jettisoned. Ex consequenti the Registry is directed to fix the case for hearing by Special Bench on merits.

IN THE INCOME TAX APPELLATE TRIBUNAL   MUMBAI SPECIAL BENCH “I”, MUMBAI Before Shri D Manmohan (V.P.), Shri R.S.Syal (A.M.), and Shri N.V.Vasudevan (J.M.) ITA No.4977/Mum/2009 : Asst.Year 2006-2007 The Deputy Commissioner of Income-tax Circle 8(2) Mumbai.M/s.Summit Securities Limited (Formerly known as KEC Infrastructure Limited), Transasia House, 3rd Floor Chandivali Studio Road, Andheri (East) Mumbai … Continue reading

“(i) Whether Section 129(6) of the Customs Act, 1962, which stipulates that on demitting office as Member of the Customs Excise and Service Tax Appellate Tribunal (hereinafter referred to as the “CESTAT”) a person shall not be entitled to appear before the CESTAT, is ultra vires the Constitution of India? (ii) Whether the said provision applies to the petitioner, as it was introduced after the petitioner had not only joined as Member of the CESTAT but also demitted office as such Member?”

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2850 OF 2012 (Arising out of SLP (C) No.8479 of 2010) N.K. Bajpai …Appellant Versus Union of India & Anr. …Respondents WITH CIVIL APPEAL NOS. 2851 OF 2012 (Arising out of SLP (C) Nos.8482 of 2010) AND CIVIL APPEAL NOS. 2852 … Continue reading

the Tamilnadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the ‘Act’) =In the result, the Civil Revision petition is allowed and the impugned orders are set aside and RCOP.No.37 of 1986, is allowed and eviction is ordered on the ground of subletting. The respondents shall vacate and hand over vacant possession of the petition premises to the petitioners/landlords within a period of two months from the date of receipt of a copy of this order. No costs. =(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED:07.02.2012 CORAM THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM CRP (NPD) No.1317 of 1995 1.M.S.Hohammed Jahabar Kadiri (Deceased) 2.Ummal Bajira 3.M.J.K.Haja Shaik Alloudeen 4.Mumtaz Begam … Petitioners P2 to P4 as legal heirs of the deceased 1st petitioner vide order of this Court, dated 24.12.2003 made in CMP.14127/2003 … Continue reading

income tax =manufacturing and exporting leather garments. For the assessment years 2001-2002 and 2004-2005, the appellant filed returns of income claiming deductions in respect of profits retained for export business under Section 80HHC of the Income Tax Act, 1961 (for short `the Act’). The Assessing Officer held in the assessment orders that the entire sale value of Duty Entitlement Pass Book (for short `DEPB’) represents profit on transfer of DEPB under Section 28(iiid) of the Act= We have today delivered judgment in Civil Appeal arising out SLP (C) No.26558 of 2010 (M/s Topman Exports v. Commissioner of Income Tax, Mumbai) and other connected appeals setting aside the judgment of the Bombay High Court in Commissioner of the Income Tax v. Kalpataru Colours and Chemicals. We have also delivered a separate judgment in Civil Appeal arising out of S.L.P. (C) No.32450 of 2010 (M/s ACG Associated Capsules Private Limited v. Commissioner of Income Tax, Central-IV, Mumbai) and other connected appeal affirming the judgment of the Delhi High Court in Commissioner of Income Tax v. Shri Ram Honda Power Equip (supra). These two appeals are disposed of in terms of our

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 1915 OF 2012 (Arising out of SLP (C) NO. 16403 of 2011) Vikas Kalra … Appellant Versus The Commissioner of Income Tax-VIII, New Delhi … Respondent WITH CIVIL APPEAL No. 1916 OF 2012 (Arising out of SLP (C) NO. 20270 of 2011) … Continue reading

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