Referring to R.M. Chidambaram Pillai (supra); Kum. A.B. Shanti (supra); Lokhpat Film Exchange (Cinema) (supra), Tribunal held that there is no separate identity for the partnership firm and that the partner is entitled to use the funds of the firm and that the assessee acted bonafide and that there was a reasonable cause within the meaning of Section 273B of the Act. We do not find any error or legal infirmity in the order of the Tribunal warranting interference. The substantial question of law raised in this appeal is answered in favour of the assessee and the Tax Case (Appeal) stands dismissed. No costs.
Law is well settled that in case of an order passed by an authority, who has no jurisdiction to pass such order, this Court can intervene and set right the things exercising the power conferred under Article 226. But, the case of the petitioner is that the respondent has wrongly calculated service tax based on the amount shown in the trial balance sheet and included the property tax and income from other sources, which are excluded from the purview of service tax
It is seen that the assessee requested the other two companies to make the expenditure on their behalf by way of scientific research as it was not having sufficient funds at that time. This fact is not disputed by the Revenue or disproved by them. Therefore, the payment was made by the other two companies to the CMI. Even though they made the payment and obtained receipts in their name, the fact remains that they have not claimed any deduction nor shown those expenditure in their books of accounts .
We are conscious of the fact that what is in dispute is not the question as to whether bio-compost fertiliser is a final product or not, but on the other hand the question is as to whether such final product is liable to be brought under Rule 57CC of the Central Excise Rules or not. Press mud is an unavoidable and inevitable waste which arises when the cane juice obtained after crushing the sugar cane is further processed for manufacture of sugar. Press mud is nothing but impurities present in the cane juice.
It cannot be denied that the respondent is estopped from raising any plea against the averments made in the counter and the confirmation of balance, for which supporting documents have been produced. The respondent has not disputed the genuineness of the supporting documents. In addition to the admission made by the respondent, the petitioner has produced various invoices-cum-delivery chalan for the supply of goods and materials to the respondent on various dates as stated in the petition and also produced statement of outstanding bills.
As far as the present case is concerned, except for stating that they had to make payments to the suppliers and the labours, there is hardly any material available on record to show any justification for receipt of cash over and above Rs. 20,000/- during the course of the year. The assessee admits that they are in the line of business of construction where day in and day out cash payments are made to labourers and to suppliers.
It is an admitted case that the assessee did not file any objection to the said revision and on the other hand, the disallowance of the gratuity provision was accepted by the assessee. Therefore, the levy of additional tax is only a consequential event to the prima facie adjustment, which was carried out through the order passed under Section 154. The Assessing Authority had rightly levied the additional tax by his order under Section 154.
Though the Assessing Officer invoked penalty under Section 27(1)(c) of the Act and stated that the assessee failed to furnish complete details from bank statement, on going through the materials placed before this Court, it is seen that the Assessing Officer has subsequently found that the said deposit was made for the period commencing from 01.04.2004 to 29.03.2005.
In our considered view, in the light of the relationship between the assessee and her father-in-law, the Tribunal has rightly held that the genuineness of the transaction is not disputed, in which, the amount has been paid by the father-in-law for purchase of property and the source had also been disclosed during the assessment proceedings. If there was a genuine and bonafide transaction and the tax payer could not get a loan or deposit by account payee cheque or demand draft for some bona fide reason, the authority vested with the power to impose penalty has a discretion not to levy penalty.
Mere characterisation of an account as a NPA would not by itself be sufficient to say that there is uncertainty as regards realizability of income or interest income thereon. Accrual of interest is a matter of fact to be decided separately for each case on the basis of examination of the facts and circumstances. The same would require an assessment of the relevant facts and circumstances of each case. Only by assessment of facts and circumstances, the Authority could arrive at a decision whether there is uncertainity of the interest accrued on NPA. Only when there is uncertainity of realizability of income or interest income then it is not chargeable to tax.
