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2012 (10) TMI 1254 - ITAT INDORE
Unexplained Cash Credits u/s 68 - Genuineness of sales along with the identity of the buyers was argued to be in dispute. Onus to prove was casted upon the assessee to explain the credits in the books which was duly discharged by him by presenting all details along with regular books of accounts, sale invoices, vouchers, receipt books etc. Still addition was made by AO u/s 68 on the ground that books of purchasers didn't contain any entry regarding such transactions.
HELD THAT:- CIT(A) has rightly come to the conclusion that the addition made by the Assessing Officer u/s 68 of the Act by considering the sale proceeds as cash credits cannot be sustained. AO has not doubted the genuineness of the purchases and when the stocks tally has been accepted by the AO then there is no reason to doubt the sales. Also, if the purchasing dealers did not account for the transaction in their books, the assessee cannot be penalised.
The decision in the case of LAKHMICHAND BAIJNATH VERSUS COMMISSIONER OF INCOME-TAX, WEST BENGAL [1958 (11) TMI 3 - SUPREME COURT] was referred where it was held that amount credited in business books can normally be presumed as business receipts.
The expression “books” with respect to s.68 is concerned, the Hon’ble Punjab & Haryana High Court in the case of SMT. SHANTA DEVI VERSUS COMMISSIONER OF INCOME-TAX [1987 (10) TMI 26 - PUNJAB AND HARYANA HIGH COURT], held that such books denotes books of assessee himself and not of other parties. Addition made by the AO u/s 68 of the Act by considering the sale proceeds as cash credits cannot be sustained.
Decision in favour of Assessee.
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2012 (10) TMI 1253 - ANDHRA PRADESH HIGH COURT
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... ... ..... petitioner, in OS No. 60 of 2003. He is very much alive, and available to be examined and cross-examined. Therefore, the conditions incorporated in Section 33 of the Act, themselves bar the marking of the deposition of the petitioner recorded in another suit. Added to that the 1st respondent failed to establish any of the conditions stipulated in the provision, which are independent of each other. 5. The trial Court relied upon the judgment of the Calcutta Court in Dukhiram Dey v. Mrityunjoy Prasad Daw, AIR 1982 Cal. 294. That was a case in which the witness was confronted with a statement made by him in another suit. Confronting a witness with a statement is substantially different from marking the entire deposition, and making it part of the record in another case. 6. Hence, the civil revision petition is allowed and the impugned order is set aside. There shall be no order as to costs. The miscellaneous petition filed in this civil revision petition shall stand disposed of.
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2012 (10) TMI 1252 - SUPREME COURT
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... ... ..... not ask this issue in the cross-examination to Inspector Shamsher Singh (PW.21) as why the independent person was not made the panch witness. More so, it was the duty of the Appellant to furnish some explanation in his statement Under Section 313 Code of Criminal Procedure, as under what circumstances his car had been parked at the Delhi Airport and it remained there for 3 hours on the date of occurrence. More so, the call records of his telephone make it evident that he was present in the vicinity of the place of occurrence and under what circumstances recovery of incriminating material had been made on his voluntary disclosure statement. Merely making a bald statement that he was innocent and recoveries had been planted and the call records were false and fabricated documents, is not enough as none of the said allegations made by the Appellant could be established. In view of the above, we do not find any force in this appeal. The appeal is therefore, dismissed accordingly.
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2012 (10) TMI 1251 - MADRAS HIGH COURT
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... ... ..... ence the decision making process of the first respondent, with regard to the D3 proposals. 4. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents, this Court finds it appropriate to direct the first respondent to consider the objections filed by the petitioner, on 19.03.2008, relating to the assessment year 2002-03, and the objections, dated 29.112010, relating to the assessment year 2003-04 and to pass appropriate orders thereon, without being influenced by the adverse remarks alleged to have been made by the second respondent in his directions, dated 31.01.2012, if any. The first respondent shall also pass such order, as per the directions issued by this Court, by its order, dated 29.02.2008, made in W.P.No.5278 of 2008, after giving an opportunity of personal hearing to the petitioner. 5. The Writ Petitions are disposed of accordingly. Consequently, connected miscellaneous petitions are closed. No costs.
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2012 (10) TMI 1249 - KARNATAKA HIGH COURT
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... ... ..... hat the landed property belongs to the joint family. In the context of the said facts and the documentary material, the contention of the revenue that the property was not a joint family property and it is individual property of Krishna Reddy is untenable. Therefore, the question of law framed at para 19 of the appeal memorandum is answered against the revenue and all other questions of law are not germane for consideration in these appeals. In that view, I.T.A. Nos.81/06, 97/06 and 98/06 are dismissed and as a consequence the computation of tax on the basis of HUF property should follow. Since it is held that the property is a joint family property, the question of levy of penalty on the individual assessee does not arise. Accordingly, the question of law is answered against the revenue. In the result, the appeals of the revenue I.T.A.Nos.81/06, 97/06, 98/06, 1022/08, 1023/08 and 1024/08 are dismissed. The appeals of the assessee I.T.A.Nos.54/06, 53/06 and 52/06 are allowed.
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2012 (10) TMI 1248 - BOMBAY HIGH COURT
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... ... ..... ussion made above, this Court has no hesitation to observe that the petitioner is doing everything to protract the hearing of the case filed against him. His steps are indirectly protracting the decision of the cases, which were filed in the year 2003. In the case reported as 2005 (2) All M.R. 581 (Bombay High Court) KSL & Industries Ltd. Vs. Mannalal Khandelwal & Anr. , this Court has discussed the provisions of N.I. Act and this Court has observed that it is the duty of the Magistrate to see that such cases are expeditiously disposed of. In view of the legislative intent behind the provisions and the time limit fixed, this Court has no hesitation to hold that even this Court is expected to show the respect to the said legislative intent. The defences taken in such a proceeding like the defence taken by the petitioner can be dealt with in the case itself and so it is not desirable to grant stay to the criminal proceedings. So all the thee proceedings stand dismissed.
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2012 (10) TMI 1247 - ANDHRA PRADESH HIGH COURT
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... ... ..... Rules is curable. 21. The insistence on use of stamp papers is basically a measure to provide evidence as to the date of execution and the authenticity of the transaction. Earning of revenue by the State is secondary to this. The slight defect as to the form of stamp cannot be permitted to render the entire document inadmissible. An inadvertent mistake to which, both the parties to the suit have contributed, must not defeat a claim, if it is otherwise proved and valid. 22. In the instant case, the necessity to undertake an exercise referable to Section 37 of the Act and Rule 18 of the Rules does not exist, in view of the answer to the first question. 23. For the foregoing reasons, the C.R.P. is allowed, and the order under revision is set aside. As a consequence, the objection raised by the respondent, as to the admissibility of the promissory note, is overruled. The miscellaneous petition filed in this C.R.P. shall also stand disposed of. There shall be no order as to costs.
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2012 (10) TMI 1246 - DELHI HIGH COURT
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... ... ..... and that the respondents do not give any warranty qua the goods nor provide any after sales service and that the warranty and after sales service is provided by the appellants personally. The appellants would prominently display in their showrooms Samsung/SAMSUNG Products sold are imported into India and SAMSUNG (KOREA) does not warranty the quality of the goods nor provides any after sales service for the goods. We warranty the quality of the goods and shall provide after sales service for the goods. 75. The last recital. The opinion expressed is prima-facie for the purposes of deciding the application filed by the respondents seeking interim injunction and would not be construed as a conclusive opinion with reference to the facts. The final decision would be keeping in view the evidence led. 76. We place on record our gratitude to learned counsel for the parties for having rendered able assistance while navigating the ship. Parties shall bear their own costs all throughout.
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2012 (10) TMI 1245 - KARNATAKA HIGH COURT
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... ... ..... d upon to prove the negative. In view of the amendment to Section36(i)(iv) w.e.f. 01.04.1989 takes away the condition of proving debtto be bad. The written off of amount as a bad debt is sufficient compliance. In view of amendment to Section 36(i)(iv) the Assessing Officer was not correct in insisting the assessee to prove the debt as bad. The assessee apart from doing money-lending business, he was also running the Chit Business. He has suffered huge loss in that business also and could not recover the amount. Hence, the assessee in individual capacity cannot be taxed. Since the HUF is disrupted prior to the survey, the disrupted HUF cannot be taxed. 9. We find that there is no infirmity or irregularity in the orderpassed by the Appellate Authority. The Revenue has not made out a case to interfere with the order passed by the Income Tax Appellate Tribunal. Both the substantial questions framed in this appeal are held against the revenue. Accordingly, the appeal is dismissed.
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2012 (10) TMI 1244 - ITAT CHENNAI
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... ... ..... imate expenses are required, (vi) that the books of account of the assessee have not been either rejected or found defective, (vii) no evidence was found relatable with the assessee’s case directly from the assessee or on the basis of which any estimation under s. 153C can be done, no such addition can be made. The entire addition deserves to be deleted. Therefore, we delete the entire addition made in the hands of the assessee-company in this account. Accordingly, we decide this issue in favour of the assessee and against the Revenue. The connected grounds raised in the Revenue’s appeals, for all the years, also stand dismissed.” Respectfully following the above decision, we are of the opinion that the CIT(Appeals) was justified in deleting the addition made for all these years. No interference is warranted. 6. In the result, appeals filed by the Revenue are dismissed. The order was pronounced in the Court on Thursday, the 11th of October, 2012, at Chennai.
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2012 (10) TMI 1243 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... to a person declared proclaimed offender. 39. It is further clarified that order of declaring a persons a proclaimed offender cannot be challenged solely on the ground that the offence alleged to have been committed by him is not included in the sections mentioned in Section 82(4) Cr.P.C. This judgment, however, will not effect the rights of a proclaimed offender to challenge the proceedings of declaring him a proclaimed offender if statutory violation of any of the provisions of issuance of warrant or proclamation is established in individual cases. It is also clarified that the moment a pro-claimed offender is arrested or he appears at the place and time required by the Court or surrenders before the Court or authority issuing warrants or proclamation, as the case may be, the order of declaration of proclaimed offender would cease to be operative. The petitioner has not been able to establish any statutory violation of provisions of Section 82 Cr.P.C. Petition is dismissed.
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2012 (10) TMI 1242 - SUPREME COURT
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... ... ..... deceased, we do not find the said submission causing any dent in the case of the prosecution. For the very same reason the submission that no blood was found on the Kassi also does not merit acceptance. 16. The last submission made was that the body of the deceased was only recovered from an adjacent place not from the house of the Appellant herself, we do not find any substance in the said submission in order to interfere with the judgment impugned. The very fact that the recovery of the dead body came to be made at the instance of the Appellant and that too from an adjacent place to the residence of the Appellant was sufficient enough to rope in the Appellant in the murder of the deceased. 17. Having regard to our above conclusions, we do not find any merit in this appeal, the appeal fails and the same is dismissed. 18. The Appellant is on bail. The bail bond stands cancelled and she shall be taken into custody forthwith to serve out the remaining part of sentence, if any.
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2012 (10) TMI 1241 - ITAT HYDERABAD
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... ... ..... 46A of the Act. In these circumstances, we remit the matter to the file of the CIT(A) with a direction to call for the remand report from the AO and decide the issue after examining the remand report of the AO and in accordance with law after providing reasonable opportunity of hearing to the assessee. 11. In the result, appeal of the revenue is treated as allowed for statistical purposes. C.O. No. 120/Hyd/12 - by the assessee 12. Since we have set aside the order of the CIT(A) and remitted the issues back to him to decide the same afresh in revenue’s appeal (supra), the Cross objections raised by the assessee against the very same order of the CIT(A) become infructuous, therefore, the C.O. filed by the assessee is dismissed as infructuous. 13. In the result, the CO filed by the assessee is dismissed. 14. To sum up, the appeal of the revenue is allowed for statistical purposes and the C.O. of the assessee is dismissed. Pronounced in the open court on 31st October, 2012.
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2012 (10) TMI 1240 - ITAT AGRA
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... ... ..... ven details of profit and loss on delivery transactions at page 3 of the paper book. All the transactions are carried out through recognized Stock Exchange. The AO did not dispute the material before him and no adverse inference has been drawn. Even in the ground of appeal, the Revenue admitted that loss has occurred due to trading in shares. Therefore, the case of the assessee would fall in sub-clause (d) of the proviso to section 43(5) of the IT Act and cannot be treated as speculative transaction. The decisions cited by the assessee before the ld. CIT(A) fully support the case of the assessee. In the absence of any adverse material, available on recordagainst the assessee, we do not find any justification to interfere with the order of ld. CIT(A) in allowing the appeal of the assessee. As a result, there is no merit in the departmental appeal and the same is, accordingly, dismissed. 5. In the result, the departmental appeal is dismissed. Order pronounced in the open court.
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2012 (10) TMI 1239 - MADHYA PRADESH HIGH COURT
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... ... ..... he Code for his discharge while ignoring the well settled position of law as laid down in Adalat Prasad v. Rooplal Jindal, III (2004) CCR 176 (SC) V (2004) SLT 353 113 (2004) DLT 356 (SC) (2004) 7 SCC 338, that the offence, under Section 138 of the Act, is triable by summon procedure that does not contemplate any stage of discharge after taking the cognizance thereof. Accordingly, learned Magistrate instead of considering the objections on merits ought to have rejected the application as not maintainable. Considering the petitioner's strategy to cause unnecessary delay, it is also necessary to impose exemplary costs in the light of guidelines laid down in Mary Angel v. State of T.N., V (1999) SLT 273 III (1999) CCR 79 (SC) AIR 1999 SC 2245. Consequently, each one of the petitions is dismissed with costs quantified at ₹ 2,000/-. As an obvious consequence, all the interim stay orders stand vacated. Copy of this order be retained in each one of the connected petitions.
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2012 (10) TMI 1238 - BOMBAY HIGH COURT
Dishonor of Cheque u/s 138 of the Negotiable Instruments Act, 1881 (Act) - legally enforceable debt or not - issuance of a cheque for repayment of a time barred debt would amount to a written promise to pay the said debt within the meaning of Section 25(3) of the Indian Contract Act, 1872 or not - Rebuttable presumption u/s 118 and 139 - HELD THAT:- On plain reading of Section 13 of the said Act of 1881, a negotiable instrument does contain a promise to pay the amount mentioned therein. The promise is given by the drawer. Under Section 6 of the said Act of 1881, a cheque is a bill of exchange drawn on a specified banker. The drawer of a cheque promises to the person in whose name the cheque is drawn or to whom the cheque is endorsed, that the cheque on its presentation, would yield the amount specified therein. Hence, it will have to be held that a cheque is a promise within the meaning of Sub-section (3) of Section 25 of the Contract Act. What follows is that when a cheque is drawn to pay wholly or in part, a debt which is not enforceable only by reason of bar of limitation, the cheque amounts to a promise governed by the Sub-section (3) of Section 25 of the Contract Act. Such promise which is an agreement becomes exception to the general rule that an agreement without consideration is void.
Though on the date of making such promise by issuing a cheque, the debt which is promised to be paid may be already time barred, in view of Sub-section (3) of Section 25 of the Contract Act, the promise/agreement is valid and, therefore, the same is enforceable. The promise to pay time barred debt becomes a valid contract as held by the Apex Court in the case of A.V. Moorthy [2002 (2) TMI 1214 - SUPREME COURT]. Therefore, the first question will have to be answered in the affirmative.
Under Section 118, there is a rebuttable presumption that every negotiable instrument was made or drawn for consideration. Section 139 creates a rebuttable presumption in favour of a holder of a cheque. The presumption is that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part of any debt or liability. Thus, under the aforesaid two Sections, there are rebuttable presumptions which extend to the existence of consideration and to the fact that the cheque was for the discharge of any debt or liability.
Once it is held that a cheque drawn for discharge of a time barred debt creates a promise which becomes enforceable contract, it cannot be said that the cheque is drawn in discharge of debt or liability which is not legally enforceable. The promise in the form of a cheque drawn in discharge of a time barred debt or liability becomes enforceable by virtue of Subsection (3) of Section 25 of the Contract Act. Thus, such cheque becomes a cheque drawn in discharge of a legally enforceable debt as contemplated by the explanation to Section 138 of the said Act of 1881. Therefore, even the second question will have to be answered in the affirmative. Therefore, we answer both the questions in the affirmative. We direct that these Applications/Petitions shall be placed before the appropriate Court for disposal in accordance with law.
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2012 (10) TMI 1237 - ITATA MUMBAI
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... ... ..... phold order of CIT(A) and dismiss the grounds raised by Revenue. It is to be noted that the decision relied upon by Revenue in ground was not approved by Special Bench in the case of Bhaumik Colour (P.) Ltd (supra). Therefore, there is no need to consider and analyse the Coordinate Bench Decision stated in Ground No. 2. The grounds are rejected”. In the absence of any distinguishing feature brought on record by the Revenue, we respectfully following the decision of the Tribunal (supra) and keeping in view that the decision of the Special Bench of the Tribunal in the case of Bhaumik Colour (P.) Ltd. (supra) has been approved by the Hon’ble Bombay High Court in Universal Medicare (P.) Ltd. (supra) which is binding on us, we are of the view that the ld. CIT(A) was fully justified in deleting the addition made by the A.O. The grounds taken by the Revenue are, therefore, rejected. 7. In the result, Revenue’s appeal stands dismissed. Order pronounced on 5-10-2012.
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2012 (10) TMI 1236 - ITAT CHENNAI
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... ... ..... nd in the similar circumstances, both received compensation from the very same company, namely, M/s Citadel Aurobindo Biotech Ltd. under similar agreement. In the case of Shri P. Harihara Rao, this Tribunal has already held that the amount so received from M/s Citadel Aurobindo Biotech Ltd. is capital receipt not liable to tax. The CIT/DR could not point out any distinguishing features in the instant case from the case of Shri P. Harihara Rao. Further, no material was brought before us to show that the decision of the Tribunal in the case of Shri P. Harihara Rao was varied or stayed by any higher authority. In the circumstances, we, respectfully following the decision of the Tribunal in the case of Shri P. Harihara Rao (supra), do not find any error in the order of the CIT(A) which is confirmed and the grounds of appeal of the Revenue are dismissed. 11. In the result, the appeal of the Revenue is dismissed. Order pronounced on Wednesday, the 31st of October, 2012, at Chennai.
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2012 (10) TMI 1235 - MADRAS HIGH COURT
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... ... ..... tax of ₹ 2,38,426/- demanded by the authority, while passing the detention order. ii) On payment of such tax amount, the goods detained shall be released and the same shall be subject to the final adjudication order, which may be passed by the authority concerned. iii) It is made clear that, while making recovery of the tax amount due, the amount of tax already paid shall be deducted. iv) The respondent shall complete the adjudication process, as expeditiously as possible. 4. The Writ Petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petition No.1 of 2012 is closed.
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2012 (10) TMI 1234 - DELHI HIGH COURT
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... ... ..... nd circumstances of these appeals are pari materia with the facts of aforementioned case of M/s Ambience Developers and Infrastructure Pvt. Ltd. and the learned DR could not controvert this fact, therefore, respectfully following the aforementioned decision of coordinate Bench, we found no merit in these departmental appeals and thus are dismissed." 5. In the opinion of this Court, the facts being virtually the same and the variation in the cost of construction being in fact lower than that in the main case i.e. CIT v. M/s. Ambience Developers and Infrastructure Pvt. Ltd., no fault can be found with the Tribunal's reasoning in the orders impugned in the present appeals pertaining to the three assessees, i.e., M/s Ambience Developers Pvt Ltd, M/s Ambience Projects & Infra Pvt. Ltd. and Ambience Hotels & Resorts Ltd. 6. Consequently, following this Court's previous judgment dated 27.07.2012 in ITA Nos.195-199 and 203/2012, the present appeals are dismissed.
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