The learned Counsel for the assessee submitted that the assessee is a concern which is eligible for claiming exemption u/s 10A of the Act and therefore, all of its income is exempt from tax in India and hence there is no intention to shift its profit outside India and more so, when the tax rates in USA, where the AEs are located, is higher than in India.
ITAT held that that if interest income does not result at all, there cannot be any tax and that if an income has not materialized, then merely an entry made about a hypothetical income by following book keeping methods, the liability to tax cannot be attracted.
From the evidences as recorded and analysed in the impugned order, the role of the Director has not been specifically discussed and brought out the fact that non-payment of duty was at his instance. In these circumstances, the personal penalty on the Director is unwarranted and accordingly set aside.
The assessee has been held entitled to adjustment of cash seized against its advance tax dues. It has further been held that the Explanation 2 to Section 132B of the Act is not retrospective in nature.
Insofar as requirement of registration with department as a condition precedent for claiming Cenvat credit is concerned, there is no provision in Cenvat Credit Rules which impose such restriction.
Plain language of sub-section (2) of Section 150 clearly restricts the application of sub-section (1) of Section 150 to enable the authorities to reopen the assessments which have not already become final on the expiry of the period of limitation prescribed u/s 149(2) of the Act.
By section 254(4) of the IT Act, an order which has been passed by the Tribunal reaches finality the moment the same is passed: it cannot be touched thereafter. By section 254(2) of the act, the Tribunal, however, has been authorized to rectify mistakes in its orders, which are apparent on the face of the records.
Briefly stated the facts of the case are that the appellants are engaged in the manufacture of excisable goods, namely paper and paperboard falling Chapter Heading 48 of the Central Excise Tariff Act, 1985. They have availed CENVAT credit of Rs.39,50,149/- on capital goods, procured on lease basis from one M/s B.G. India Energy Services Pvt. Ltd
In the present case, the assessee has failed to carry out his obligations and hence, the burden cannot be shifted to the revenue to find out from the creditors about their identity and credit worthiness after receiving the names and addresses of the creditors.
In the light of the above factual position and the two Judgments of the Hon’ble Supreme Court of India, it is conceded equally by the Department that their stand, as contained in the impugned letter, is unsustainable in law. The matter is covered by the said two Judgments. In the circumstances, we allow this writ petition and quash and set aside the impugned letter dated 821999. We direct that the declaration of the petitioners shall now be proceeded with and decided in accordance with law.
