There is no legal provision which provides for condoning the delay in filing the appeal on a condition of depositing 50% of the tax amount. The delay in filing the appeal is condoned or refused depending upon the sufficiency of cause for delay. If the party is found to be prevented by a sufficient cause to the satisfaction of the Appellate Authority/Tribunal, the delay is condoned and if not found to be prevented by a sufficient cause, the delay is not condoned.
The appellant/assessee availed the benefit under the Works Contracts Composition Scheme in respect of contracts entered into prior to 1-6-2007. The respondent/department issued show cause notice proposing service tax, interest and penalty on the ground that the petitioner was not eligible to avail the benefit under the Composition Scheme. Being aggrieved, the petitioner went in appeal under Section 35B of the Central Excise Act, 1944 (the Act).
There is no conflict between the statutory relief of winding up and of the contractual right to have disputes settled by arbitration. Once a bona fide defence is shown to exist, arbitration will be the efficacious and proper remedy. Where, however, the defence is mala fide and a moonshine, arbitrable disputes would not exist and the company judge would have the power to pass appropriate orders Madhya Pradesh Iron & Steel Co. (supra). Existence of an arbitration clause does not oust the jurisdiction of this court to either entertain or to admit a petition for winding up.
The admitted position is that the amount of Rs.30,63,310/- was shown by her in the return. That being the position, it cannot be said that there was any concealment. There is no dispute about the fact that the amount was correctly mentioned and therefore, there is also nothing inaccurate in the particulars furnished by her.
In the present case, there is no indication of the assessee’s hire purchase agreements reflecting bifurcation of the EMIs into principal and interest components. In the absence thereof, the common and accepted usage of the indexing system of accounting in the hire-purchase trade must be held to be valid as otherwise the rate of interest under the mercantile system in so far as the later EMIs are concerned would be far higher and contrary to the rate prescribed in the assessee’s agreements. Further, as the assessee had itself employed this system of accounting in its books of account, applying the law laid down in Sanjeev Woollen Mills (supra), the Department was bound to accept the same for the assessment proceedings.
Tribunal while allowing the appeal held that the electricity charges partake of the nature of statutory liability and accordingly will have to be allowed as deduction irrespective of whether or not the same has been paid and notwithstanding that the assessee has disputed any liability to pay any part of such charges. Section 43B of the Act does not speak about the electricity charges.
In T. Ashok Pai v. CIT [2007] 292 ITR 11 the Supreme Court observed that if the explanation given by an assessee is taken to be bona fide, the question of imposition of penalty under section 271(1)(c) of the Act would not arise. Although the findings arrived at in assessment proceedings would constitute good material for penalty proceedings, yet in penalty proceedings, the matter has to be looked at differently since the consequences for the assessee would be different, and penal. Therefore, the rule of strict construction would apply.
The Commissioner’s Order-in-Appeal dated 27.05.2008 reflects that he accepted that the efficiency of the employees of an organization would be dependent on various factors, one such being the provision of a housing colony. He further conceded that these facilities would contribute to the enhancement of the productivity of the organization. Having stated so, the appellate authority surprisingly took the view that maintenance of the residential colony by the respondent Company was only an obligatory activity owing to situational exigencies and was not connected either directly or indirectly to the manufacture of its final products.
It is not possible to accept the contention of the counsel for the assessee that interest earned even from third parties would be exempt from the charge of income-tax, in all types of transactions. The ratio therein is that, if an incorporated entity is engaged in trade, the profit from it, even if they are transactions with members, would be taxable and the principle of mutuality would have no application.
In our considered view, the Commissioner (Appeals) and the CESTAT in the order impugned have considered the material on record and if there is some evidence on the basis of which the primary and appellate authorities have based their conclusions, then the fact that better evidence ought to have been marshalled by the assessee and absence of the substantive evidence of invoices, was not considered, would not constitute a substantial question of law warranting consideration by this Court under Section 35G of the Act, in an appeal.
