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Case Laws
Showing 161 to 180 of 781 Records
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2007 (3) TMI 673 - SUPREME COURT
Whether the order passed under Section 11(6) of the Act appointing the Arbitrators is good order in law?
Held that:- Once we have come to the conclusion that the learned Designate Judge was right in holding that there was a live issue the learned Designate Judge was right in appointing the Arbitrator under Section 11(6) of the Act, We, therefore, proceed to dismiss the Civil Appeal with no order as to costs.
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2007 (3) TMI 672 - SUPREME COURT
Sales tax arrears - High Court demanded 50% Tax - Held that:- Since there is an order of attachment during the pendency of the Civil Appeal in this Court, the interest of the respondent is fully safeguarded by the said Order - appellant preferred the above appeal in this Court and this Court on 28.11.2005 while ordering notice to the respondent ordered attachment of the property purchased by the appellant shall continue and no further steps will be taken until further orders by this Court. Since there is an order of attachment during the pendency of the Civil Appeal in this Court, the interest of the respondent is fully safeguarded by the said Order. We, therefore, set aside the order passed by the High Court ordering deposit of 50% of the total tax due and request the High Court to dispose of Writ Appeal filed by the appellant on merits - Decided in favour of assessee.
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2007 (3) TMI 671 - SUPREME COURT
Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.
Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.
The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141. Appeal dismissed.
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2007 (3) TMI 670 - SUPREME COURT
Prosecution and Penalty- Alleged that appellant was fail to credited TDS to the central government and accordingly prosecutes the appellant- Authority decided that ground of delay is not relevant fact for drop the proceedings.
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2007 (3) TMI 669 - SUPREME COURT
Whether the entire agreement is vitiated by fraud as a result whereof no valid arbitration agreement came into being?
Held that:- Applicant has not appointed its arbitrator. Respondent has also not been called upon to appoint its arbitrator by the said notice or otherwise. An application for appointment of an arbitrator, therefore, is not maintainable unless the procedure and mechanism agreed to by and between the parties is complied with. Appeal dismissed.
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2007 (3) TMI 668 - MADRAS HIGH COURT
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... ... ..... ny event, the said observation of the learned single Judge, in our considered opinion, does not fit into the impugned proceedings dated 1.3.1999, as the same is silent to that effect. 7.6. On the other hand, since there is no dispute as to the entitlement of the petitioner for the waiver of sales tax to the tune of Rs.1044.21 lakhs for a period of five years, as rescheduled in the proceedings dated 16.8.1995, from 1.11.1994 to 31.10.1999 subject to the ceiling of total investment made in the fixed assets, viz. Rs.1044.21 lakhs, in our considered opinion, suffice it to strike down the restriction that the sales tax benefit for a period from 1.9.1998 to 31.10.1999 would be restricted to actual sales tax remitted during the period from 1.9.1993 to 31.10.1994, which would in turn qualify G.O.Ms.No.500, Industries (MIG-II) Department, dated 14.5.1990 in spirit and substance. Consequently, the order of the learned single judge is set aside and the writ appeal is allowed. No costs.
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2007 (3) TMI 667 - CESTAT BANGALORE
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... ... ..... erred to, appears in the Notification. 2. Heard learned counsel and learned DR. 3. On a specific query from the bench as to whether the course has been recognized in terms of law, learned counsel drew strength from the Apex Court judgement rendered in the context of Income Tax Act to grant exemption to Oxford University Press as they were engaged in some educational activity in India. This is distinguished by learned DR on the ground that the Notification refers to the course recognized in terms of law. This is not the case and the judgement is distinguishable. Learned counsel argued at length. However, we are of the considered opinion that the appellants do not have a very strong case at this stage. They should pre-deposit a sum of Rs 30,000/- within a period of three months. On such deposit the balanced of duty and penalties stand waived and recovery stayed till the disposal of the appeal. Call on to report compliance on 10th July 07. (Pronounced and dictated in open court)
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2007 (3) TMI 666 - KARNATAKA HIGH COURT
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... ... ..... hereunder which envisages benefit should reach to the exporters in the circumstances enumerated therein and as the petitioner falls into one of the categories in law entitled to the said benefit which otherwise has been sought to be deprived by Annexure-G. Hence, the petitioner is entitled to the benefit of the said DEPB scheme and the general instructions issued and the goods exported by him on 3-11-1998 and 14-12-1998 are unaffected by the administrative instructions issued on 1-4-1999. Therefore, quietus is given to this issue accepting the case of the petitioner that it is entitled to the benefit of the said scheme. 18. emsp In the result, rule is made absolute. The writ petition stands allowed. The order passed by the respondent No. 2 bearing No. 07/79/051/009993/AM2000/1014, dated 29-2-2000/9-3-2000 vide Annexure-G and the order of the first respondent dated 23-9-2003 bearing No. 11/4/00-01/ECA-1 vide Annexure-J, are quashed. In the circumstances, no order as to costs.
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2007 (3) TMI 665 - KARNATAKA HIGH COURT
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... ... ..... the appellant had undertaken not only the printing activity but also the other activities by way of job work. This observation, as rightly pointed out by the learned counsel for the appellant, would come in the way of consideration of the appellant rsquo s case before the adjudicating authority in terms of the order of the Tribunal. The tribunal while remanding the matter ought not have given any such finding on merits of the matter. We find substance in the argument of the learned counsel for the appellant that the tribunal has committed a factual error in passing the impugned order. In these circumstances, we deem it proper to accept this appeal. The order of the tribunal is modified thereby ordering the adjudicating authority to reconsider the matter on merits without in any way being influenced by the tribunal or by this court. All contentions with regard to manufacturing activity is left open to be decided by the adjudicating authority. 6. Ordered accordingly. No costs.
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2007 (3) TMI 664 - SC ORDER
Non speaking order - Held that:- Since the order of the High Court [2005 (8) TMI 619 - Delhi High Court] is non-speaking the matter be remitted to the High court for fresh consideration of the entire matter on the merits and in accordance with law.
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2007 (3) TMI 663 - SUPREME COURT
Insurance claim - whether prudent insurer will take the risk and, if so, at what premium and on what conditions?
Whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise)?
Whether the plaintiff is entitled to have that sum paid over to him or whether it constitutes assets available for the general body of the company’s creditors?
Held that:- Appeal allowed. Where originally the license was a fake one, renewal cannot cure the inherent fatality.
In case of third party risks the insurer has to indemnify the amount and if so advised to recover the same from the insured.The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.
The High Courts/Commissions shall now consider the matter afresh in the light of the position in law as delineated above.
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2007 (3) TMI 662 - ITAT MUMBAI
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... ... ..... 1998, in the case of the assessee and only panchnama prepared on that date could be linked to the assessee and the time limit for completion of block assessment has, therefore, expired on September 30, 2000 and accordingly we quash the block assessment order. Since we have already held that the assessment order itself is invalid on the legal point of beyond the time limit, we are of the view that in the light of the Special Bench decision of the Tribunal in the case of Colonisers v. Asst. CIT 1992 41 ITD 57 (Hyd), it is not necessary for us to decide the issues on merit. In this case the Tribunal held that if the addition had been deleted on the ground that the assessment order has been set aside as void ab initio, there is no need to restore the case of the Income-tax Officer with direction for redoing it. It is also not necessary to deal with the issues on merit either. In the result, the appeal of the assessee stands allowed. Pronounced in the open court on March 29, 2007.
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2007 (3) TMI 661 - ITAT AMRITSAR
Sale of shares - Long-term capital gains - Whether the date of transfer of shares in this case should be reckoned as March 17, 1998, i.e., the date of execution of the agreement for sale of shares on April 23, 1998, i.e., when delivery of share certificates along with transfer deeds were handed over to the purchaser - HELD THAT:- We find that the entire agreement executed on March 17, 1998, among the parties was acted upon. It was conceded before us by learned counsel that the approval of the Government authorities had been received in the accounting period relevant to the assessment year under consideration. The entire shares were delivered along with transfer deeds on April 23, 1998. Thus, the present case stands on stronger footings in favour of the Revenue and against the assessee because in the case before the hon’ble Kerala High Court, the entire shares, subject-matter of transfer in the agreement, could not be transferred because of non-receipt of Government approval in respect of 40,000 shares. This is not the case here. Therefore, we are of the considered opinion that this was not a conditional sale as was also understood by the parties at the time when resultant capital gains on sale of shares was included in the original return filed by the assessee. Therefore, the case of the assessee is fully covered by the aforesaid circular of the Board as the date of transfer for the purpose of section 45 would be March 17, 1998 and not April 23, 1998.
Thus, we are of the considered opinion that the authorities below were justified in taking the date of transfer of shares as March 17, 1998, falling in the accounting period relating to the assessment year under consideration. Accordingly, we confirm the order of the CIT (A) and reject the various grounds of appeal of the assessee.
In the result, the appeal of the assessee is dismissed.
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2007 (3) TMI 660 - ITAT BANGALORE
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... ... ..... ce was Rs. 19,38,000. The Assessing Officer himself has given credit of advance tax. The Assessing Officer has calculated interest under section 201(1A) on the sum of Rs. 19,38,000 mdash Rs. 4,25,126 (advance tax) Rs. 15,12,874. On this sum, the Assessing Officer has charged interest under section 201(1A). The deductee has not been given credit of the tax so deductible. The tax payable by the deductee is only Rs. 8,49,503. When the Revenue is not paying any interest to the deductee on the amount so deductible by charging interest from the deductor then it is not justifiable to charge interest from the deductor of such amount. Interest is chargeable on the amount of tax actually paid. The wording in section 201(1A) is that interest is to be charged on such tax which was not paid. Accordingly, it is held that the interest under section 201(1A) will be chargeable on the sum of Rs. 8,49,503 from the date on which the tax was deductible. In the result the appeal is partly allowed.
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2007 (3) TMI 659 - ITAT ALLAHABAD
Additions made u/s 68 - Gifts received from three different persons - creditworthiness and genuineness of gifts - income from dealing in zarda and cigarettes - HELD THAT:- In all the three cases, money is deposited in cash in their bank account. It is deposited only on the same day when cheques/drafts are issued. All the gifts are taken on the same day as if there was some programme or function on the date of the gift at the premises of the assessee. All the three persons are of humble means. If the donors had any real savings they could have utilised it for the welfare of their own family or to augment their income. It is not expected from the persons having practically no capital left to part away their precious money to a person who is already very rich as compared to the donors. Thus, we cull out the following relevant factors in the case of the three gifts :
“(1) There is no relationship between the donors and donee. The donors are strangers to the assessee. No evidence is filed as to how they are known to each other. Only in one case, the assessee is stated to be maternal aunt of the donor and a distant relation.
(2) There is no occasion for making gifts.
(3) There is no evidence that there was any love and affection or friendship between the donors and donee so that it could motivate the person to gift practically his entire capital, like precious money received as retirement benefit of the husband.
(4) There is no evidence that there was any business transaction between the donors and the assessee as it is not believable that a stranger would part away his lifetime savings by giving gifts to unknown person sacrificing his chances of improving his living conditions with that money.
(5) Most of the donors had given gifts of their entire capital.
(6) All the persons had meagre withdrawals to support their large family. They had very nominal income. None of them are assessed to tax whereas donee has turnover of Rs. 2 crores and more. Thus gifts are flowing from persons of humble means to the rich assessee.
(7) There is no evidence that the assessee or his family has given gifts to the members of the donor’s family at any time. The entire transaction of gifts is apparently unusual as behaviour of the donors is queer.
(8) In one case, friendship is claimed. In another case, a relationship is claimed. According to us, it is only an alibi to show a motive for giving gift. It could happen only in the income-tax world where capital and source of income of persons of humble means are transferred to rich persons with multiple source of income. The flight of capital from rags to riches in the form of such gifts can happen only to save income-tax. There is nothing in these transactions to inspire confidence about their genuineness. The gifts are undoubtedly bogus.
The hon’ble Supreme Court in Workmen of Associated Rubber Industry Ltd. v. Associated Rubber Industry Ltd.[1985 (8) TMI 272 - SUPREME COURT]. A credit could not be held to be satisfactorily explained if depositor did not have resources to make deposits. Our view is supported by the decision of the hon’ble Kerala High Court in ITO v. Diza Holdings (P.) Ltd.[2001 (11) TMI 52 - KERALA HIGH COURT]. The mere fact that the transactions were through bank is not conclusive. Further, where the Assessing Officer is satisfied that the creditor is not telling the truth, the onus is shifted back to the assessee. It is not for the Assessing Officer to find out the exact source of the money belonging to any other person. It is for that person to prove such source.
Though the individual factors, like relationship, occasion, non-giving gifts by the donors to the kiths and kins or by the donors to the kiths and kins, donee not giving any help to the donors at any time or the donors are men of petty means may not carry enough weight individually but when they are put together and viewed as a whole then one discovers the reality. Picture that emerges is that it is only a make-belief affair. All these factors put together leave no doubt in our mind that it is a fit case where form has to be ignored and one has to go into the substance of the whole transaction.
The substance is that the gifts are not genuine but it is the unaccounted money of the assessee, which has flown in the form of the gifts. As the assessee is the beneficiary of this money, it is safely inferred that it was her unaccounted money which has come back to her in the form of gifts to inflate the capital without paying taxes.
As a result, we uphold the order of the ld CIT (A) and hold that the gifts are not genuine and that creditworthiness of the donors is not proved and therefore, additions have to be made u/s 68 of the Act. The appeal filed by the assessee is, therefore, dismissed.
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2007 (3) TMI 658 - ITAT BANGALORE
Validity Of Assessment Order passed by CIT(A) - Determination status of assessee is resident or non-resident? - income from property at Primrose Road as deemed let out and the rent being taken on notional basis - Income accrued in India - Determination of jurisdiction of AO - determination of quantum of interest u/s 244A - In the instant case, as the facts stand the assessee claimed the status of a non-resident for the reasons brought out in the earlier paragraph and had filed it with the Assessing Officer (International Taxation). In view of specific delegation of exercising the power as an Assessing Officer only on persons who could be called non-residents, the Assessing Officer (International Taxation), on finding that the assessee does not satisfy the conditions of a non-resident. The proper course of action that was expected of him is to transfer the file to the Assessing Officer who had territorial jurisdiction over the assessee as a resident or to such officer who would have jurisdiction over the assessee.
In the instant case, the Assessing Officer having noted from the facts on record and on applying the principles of law that he would not have jurisdiction over the assessee, he may express his reasons therefor in the order sheet, which may form the basis for the Commissioner of Income-tax for transferring the file to the Officer who would have a jurisdiction over him.
Since the very crux of jurisdiction is shaken in the instant case, that is the Assessing Officer (International Taxation) having found the assessee to be a resident, he exercised jurisdiction over him. Since he had exercised jurisdiction without authority and without any authorization therefor, the order passed by him suffers from lack of jurisdiction. Such an order would, therefore, become an illegal order and non est in the eye of law. We hold accordingly and quash the order.
Though it may not be necessary to go into the merits of the issue before us, namely, inclusion of rent on notional basis and the calculation error in interest under section 244A of the Act, we would, as an abundant precaution cover these two issues also.
Working of interest u/s 244A - HELD THAT:- CIT (A) may not be said to be justified in not accepting the claim. The assessee has claimed that interest is payable for a longer period, goes to the very root of chargeability of interest in favour of the assessee and, therefore, it is only proper he should have considered the same and it is not an isolated ground from the other grounds. Since it is raised along with the other grounds, the same should have been considered. However, since it is a matter of examination and calculation also, the Assessing Officer is directed to examine the same and rework the same in accordance with the provisions of law.
The assessment not being in accordance with law is quashed, subject to our observations as above - In the result, the appeal is allowed.
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2007 (3) TMI 657 - ITAT BANGALORE
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... ... ..... e is wrong because the income is assessable in the hands of association of persons. Coming to the appeal by the assessee, the inclusion of 5 percent of the net profit amounting to Rs. 3,23,680 for services rendered in the association of persons project, in our opinion, is not includible because when computing the income of association of persons, any amount paid to the member for services rendered is not deductible as an expenditure. It may be relevant for the purpose of arriving at the share of profit to be distributed but it has got no relevance beyond that. To that extent, the claim of the assessee is upheld. In so far as the additional ground concerning non-leviability of surcharge is concerned, in the light of the decision of the Special Bench ( 2007 288 ITR (AT) 226 (Hyd)) and considering the fact that the search was carried out on December 29, 2000, the surcharge is not leviable. We uphold the claim of the assessee. In the result, the appeal of the assessee is allowed.
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2007 (3) TMI 656 - CENTRAL INFORMATION COMMISSION
Right to Information - Vigilance proceedings ... ... ... ... ..... rovided in Section 8(2) of the Act is meant to cover precisely such situations/contingencies. In fact, in matters such as this when an employee has been vindicated as having been victim of unjustified action, even mala fides, the public authority should boldly and voluntarily disclose to the employee the identities of those whose findings caused the public authority to take action which not only failed judicial scrutiny, it also invited strictures. 11. emsp In my view, therefore, this is a fit case which brings up the exception of Section 8(2) into play and, regardless of the matter attracting Section 8(1)(g), the information requested by the appellant should be disclosed to him in its entirety. 12. emsp The CPIO is directed to allow the appellant, within two weeks from the date of the receipt of this order, to inspect the files/note files/documents/records related to his case and allow him to take such extracts/certified copies as he may wish. 13. emsp The appeal is allowed.
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2007 (3) TMI 655 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ind that the duty demand is nearly Rs. 2.46 crores, and equal amount of penalty is imposed on them and the total liability comes to about Rs. 5 crores. Learned advocate also pleads financial hardship and relied upon the balance sheet for the year ending 31st March, 2006, showing that there was losses. However, on scrutiny of the balance sheet we find that the company has sufficient current assets including cash and bank balances, loans and advances to satisfy the dues. Taking all these into account, we direct the appellant to deposit a sum of Rs. 1,50,00,000/- (Rupees One crore and fifty lakhs only) within a period of 8 weeks from today failing which appeal will stand dismissed. Subject to pre-deposit as ordered above, pre-deposit of balance duty and penalty will be waived and recovery thereof stayed till the disposal of the appeal. 5. emsp The application is disposed of accordingly. Post the matter on 23rd May, 2007 for compliance. (Dictated and pronounced in the open court)
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2007 (3) TMI 654 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit - SSI exemption ... ... ... ... ..... le exemption scheme. This applies not only to lock but to all other goods specified in Notification No. 1/93-C.E. rdquo (Emphasis supplied) On a plain reading of above reproduced paragraph it can be seen that CBEC had clarified that no goods specified in Notification 1/93-C.E. can be deprived of the benefit of the small scale exemption scheme, if brand name is not owned by any particular person. The evidence on record suggests that the Revenue authorities had not checked with the purchasers of the goods whether brand belong to them or not. Further, we also note that the appellants had deposited Rs. 1,50,000/- during investigation stage. We find that the applicants have made out prima facie case for complete waiver of balance amount of duty and penalty in these two cases. Accordingly, applications for waiver of pre-deposit of balance amount of duty and penalty are allowed and recovery there of stayed till the disposal of the appeals. (Dictated and pronounced in the Open Court)
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