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Showing 81 to 100 of 931 Records
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2008 (9) TMI 959
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... ... ..... the transaction of gift as well as the capacity of the donor stands established or not?" 3. We have perused the judgment of the Tribunal dated 30th January, 2008. It is explicitly clear that the aforesaid question is only raised on the finding of fact. There is absolutely no question of law involved in the above appeal. Appeal is devoid of any merit. The appeal is, therefore, dismissed.
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2008 (9) TMI 958
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... ... ..... g Officer after giving reasonable opportunity of hearing to the assessee will verify the figures given by assessee regarding calculation of percentage of mobilisation of revenue attributable work done in India and then to consider the same for the purpose of Section 44BB. 2. Hence, the appeal is accordingly dismissed.
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2008 (9) TMI 957
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... ... ..... aside and the order of eviction recorded by the appellant authority and the Additional District Judge III on 25th May, 2001 is restored. 52. The learned counsel for the tenants, at this stage, prayed for grant of time to vacate the suit shop stating that the tenant is doing business in the suit shop and if he is evicted immediately, enormous hardship would be caused to him. Prima facie, in our opinion, the learned counsel for the landlords is right in submitting that the tenant is not using the property. But on overall considerations, we are of the view that ends of justice would be met if we grant time upto March 31, 2009 on usual undertaking being filed by the respondents herein. Such undertaking shall be filed on affidavit within a period of four weeks from today, a copy of which should be given to the learned counsel for the appellants. 53. The appeal is allowed accordingly. On the facts and in the circumstances of the case, however, there shall be no order as to costs.
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2008 (9) TMI 956
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... ... ..... in issue to the respective persons from whom the respondent no.5 has obtained such actual physical possession. We make it abundantly clear that we are not dealing by this judgement and order with the controversy inter-se between the private parties as to the entitlement and/or rights regarding the properties in issue. Consequently, it will be open for the contesting parties to adopt appropriate procedure to ventilate their grievances, if any in that regard, as may be permissible in law. 36. In view of the aforesaid findings and observations made by us, we allow this writ petition and make Rule absolute in terms of prayer clause (b) thereof with no order as to costs. We also further direct the 5th respondent, within eight weeks from today, to restore the actual physical possession of all the properties in issue (details of which are set out in paragraph 2 of this judgement) to the respective persons from whom the 5th respondent had obtained actual physical possession thereof.
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2008 (9) TMI 955
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... ... ..... trade creditors shown by the assessee in the absence of furnishing complete addresses of trade creditors/consignors and the payment vouchers was genuine or not." 4. Learned counsel for the assessee submits that genuineness of the transaction could not be doubted from the fact that the assessee was not able to give the addresses of the trade creditors who are large in number and it was not possible to get their details. 5. The Tribunal did not find merit in this contention and held that the assessee was not entitled to deduction on that account. 6. It is also submitted that the impugned entry in the account books of the assessee as trade liability could not be treated as income without any basis. Once entry of liability was not accepted, treating the amount as income of the assessee was consequential. 7. In our view, the issue raised is in the realm of appreciation of evidence. 8. We are unable to hold that any substantial question of law arises in the appeal. Dismissed.
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2008 (9) TMI 954
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... ... ..... parting high class legal education and has become an institution of excellence in the legal education in India and a fore-runner for similar law schools that were subsequently set up on its lines. The Hon'ble Chief Justice of India is its Visitor. Its director is chosen from men of excellence in the field of legal education and proven distinction. The assessee maintains accounts that are subject to audit and the accounts for the assessment years 2005-06 to 2007-08 have been filed before us at our instance. They show the meticulous manner in which the accounts are maintained and audited. In these circumstances, there is no question of the delay in making the application for registration not being bona fide. We condone the delay and direct the DIT(Exemptions) to grant registration to the assessee u/s. 12A of the Act from 1.4.1999. 11. The appeal of the assessee is allowed with no order as to costs. 12. Order pronounced in the open court on this 26th day of September, 2008.
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2008 (9) TMI 953
Attempt to Commit Murder - Order of acquittal passed u/s 307 IPC - High Court rejected the application observing that the judgment of the trial Court could not be said to be `perverse' and no interference was called for - Powers of revisional Court - whether High Court has committed an error of law in not granting leave to the State to file an appeal against the order of acquittal recorded by the Sessions Court?
HELD THAT:- So far as the preliminary objection raised by the learned counsel for the accused is concerned, we find no substance therein. The case in hand was instituted on the basis of FIR. It was thus a Police case. De facto complainant, therefore, has no right to file an appeal. He, therefore, preferred a revision. Now it is well settled that revisional jurisdiction can be exercised sparingly and only in exceptional cases. A revisional Court cannot convert itself into a regular Court of Appeal.
Powers of revisional Court are thus limited. Rejection of a revision application, therefore, cannot affect the power of the State in invoking statutory remedy available u/s 378 of the Code. The preliminary objection has, therefore, no force and is hereby rejected.
So far as an application for leave to appeal by the State is concerned, the High Court rejected it without considering the evidence of the prosecution. In the impugned order, the High Court noted that it had heard the learned Assistant Public Prosecutor. It went on to state that none of the injuries sustained by the victim was `fatal'. According to the High Court, the cause behind the assault was that the complainant-advocate was teasing the wife of the accused, who was also working in the Court.
In Sita Ram & Ors. v. State of Uttar Pradesh [1979 (1) TMI 236 - SUPREME COURT], this Court held that a single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the concept that men are fallible, judges are men and making assurance doubly sure, before irrevocable deprivation of life or liberty comes to pass, a full-scale re- examination of the facts and the law is made an integral part of fundamental fairness or procedure.
We have gone through the judgment and order of acquittal recorded by the trial Court. It records that 15 witnesses were examined by the prosecution including injured victim PW1-Rajan and PW2-Charushila, real sister of the victim. The trial Court observed that the testimony of PW1-Rajan revealed that the incident occurred on June 7, 2003 at about 6.15 p.m. The injuries sustained by PW1 Rajan were proved from the evidence of Dr. D'Souza, PW12. The Court also noted that the circumstantial evidence supported the contention of the complainant that he sustained bleeding injuries. Bloodstains were found on the shirt and pant of accused which was of Group `A' i.e. blood group of the complainant.
The accused in his statement u/s 313 of the Code admitted that he was present at Vangoan Railway Station on June 07, 2003; that he complained to PW9 Naresh Kumar that one person was flirting with his wife; that he was arrested by PW 13 Dattatraya and was sent for medical examination, that PW11 Dr. Padmaja examined him and issued Medical Certificate (Ex. 32). He stated that his wife and passengers at the Railway Station had severely beaten the complainant. It has also come on record that complaints were made to the Dahanu Bar Association. Certain documents were also produced relating to objectionable behaviour by the complainant, lodging of complaints by the accused and resolution passed by the Dahanu Bar Association.
The trial Court came to the conclusion that from the testimony of PW10- Dr. Padmaja who examined the accused on June 8, 2003, found three injuries on the person of the accused as mentioned in Ext.32. They were on the left shoulder and the right upper limp of the accused. According to the Court, injuries on the person of the accused supported his defence that he was beaten by the complainant and prosecution failed to explain the injuries on the person of the accused.
In view of the all these facts, circumstances and findings, in our opinion, the High Court should not have rejected the application for grant of leave by passing a `brief' order. Moreover, the High Court observed in the impugned order that the judgment of the trial Court cannot be said to be `perverse'.
The High Court, in our judgment, was not right in rejecting the application for leave on the ground that the judgment of the trial Court could not be termed as `perverse'. They do not curtail the authority of the appellate Court in interfering with an order of acquittal recorded by the trial Court. The order of the High Court, therefore, cannot stand and must be set aside.
Therefore, the appeal deserves to be allowed and is allowed accordingly by remitting the matter to the High Court for fresh disposal in accordance with law.
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2008 (9) TMI 952
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... ... ..... hors the Act, irrational or otherwise unreasonable or the so-called purpose is no public purpose' at all and fraud on statute is apparent, a writ-court can undoubtedly interfere. But except in such cases, the declaration of the Government is not subject to judicial review. In other words, a writ court, while exercising powers under Articles 32, 226 or 136 of the Constitution, cannot substitute its own judgment for the judgment of the Government as to what constitutes public purpose'. 172. Taking the facts in their entirety, we are of the view that the action of the State in initiating acquisition proceedings for establishing and developing infrastructure project cannot be held contrary to law or objectionable. The High Court was, therefore, right in dismissing writ petitions as also writ appeals and we find no infirmity therein. All the appeals, therefore, are liable to be dismissed and are accordingly dismissed, however, leaving the parties to bear their own costs.
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2008 (9) TMI 951
Computation of Export turnover - deduction u/s 10A - business of export of software - incurred expenses in foreign exchange and claimed the same to be included in the total turnover - falls within the definition of computer software u/s 10A or not.
HELD THAT:- Ld counsel for the assessee pointed out that this issue is also squarely covered by the decision of this Tribunal in the case of the assessee for AY's 2001-02 and 2002-03 wherein held that; ''expenses in foreign currency were not to be reduced for ascertaining the export turnover. This Bench in the case of M/s. Relq Software Pvt Ltd [2008 (5) TMI 372 - ITAT BANGALORE-A] also held that the on-site expenses for development of computer software is not in the nature of technical services.''
Applying the same, we confirm the order of the ld CIT (A) granting relief to the assessee treating expenses incurred in foreign currency to be taken along with total turnover of the assessee. It is ordered accordingly.
In the result, the appeal filed by the revenue is dismissed.
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2008 (9) TMI 950
Addition on unaccounted investment - rejection of Books of Account - Whether the Appellate Tribunal rightly deleted the addition, confirmed by the CIT(A)?- HELD THAT:- Admittedly, there was no evidence to disbelieve or disprove the fact that sufficient cash was available in the cash book on the two dates for making the deposits and there was no reason found by the Tribunal for disbelieving the Books of Account maintained by the Assessee. These are pure findings of fact recorded after appreciation of evidence and do not give rise to any question of law, much less a substantial question of law.
Addition on withdrawal in cash - No dispute that the amount having been withdrawn in cash from the Bank Account of the Assessee by Shri Manubhai Bhavsar who has stated that the same was deposited with M/s. J.B. Upadhyay. In this factual scenario the Tribunal was justified in coming to the conclusion that there was no question of treating the deposit in question as unexplained and no addition was warranted.
In the result, in absence of any legal infirmity in the impugned order of Tribunal the Appeal is dismissed as none of the questions, as proposed or otherwise, can be termed to be questions of law, much less substantial questions of law.
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2008 (9) TMI 949
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... ... ..... to generate power during the previous year relevant to assessment year 1999-2000. As per Annexure-D annexed to the computation of income chargeable to tax filed along with the return of income for assessment year 1999-2000, the assessee had claimed depreciation in accordance with sub-rule (1) read with Appendix I. Thereafter the assessee’s return of income was processed under section 143(1) on 29-9-2000 and no adjustment in that behalf was made by the Assessing Officer. According to the learned counsel for the assessee the return of income filed before the due date of furnishing the return under section 139(1) for assessment year 1999-2000. made proper compliance to the requirements of the second proviso to rule 5(1A) of Income-tax Rules. On consideration of the matter we accept this argument." 5. We find no perversity in this reasoning and question Nos. 1 and 2 cannot be held to be substantial questions of law. In this view of the matter, the appeal is dismissed.
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2008 (9) TMI 947
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... ... ..... has erred in interpreting section 143(3) of the Income Tax Act and has incorrectly come to the conclusion that the order of aassessment was in violation of the statutory provisions. 3. In our view, the findings recorded by the Tribunal do not call for any interference in face of the judgment of this Court in the case of CWT v. HUF of H. H. Late J. M. Scindia 2008 174 Taxman 1 and the judgment of the Rajasthan Court in the case of Tiwari Kanhaiya Lal v. CIT 1985 154 ITR 1091. No question of law much less substantial question of law arises for determination. Appeal dismissed. No order as to costs.
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2008 (9) TMI 946
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... ... ..... orities. 12. The ld. D.R. placed strong reliance on the order of ld. CIT(A). 13. We have considered the submissions made by both parties, material on record and orders of authorities below. It is noted that the entire expenditure claimed by the assessee in RandD which is allowable u/s. 35(1)(iv) of the Act in the year of incurrence. None of the Revenue Authorities have neither doubted the genuineness of expenditure nor applicability of the provisions of Section 35(1)(iv) of the Act and the assessee's claim have been rejected merely due to different treatment given in the accounts, which in our view, is not correct as the income has to be computed in accordance with the provisions of law. Therefore, we hold that assessee deserves to succeed on this ground. Accordingly, the A.O. is directed to allow the total claim made by the assessee. Thus, this ground of the assessee is also accepted. 14. In the result, appeal filed by the Revenue is dismissed. Pronounced on 10.09.2008.
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2008 (9) TMI 945
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... ... ..... the assessee for deduction under section 80HHD was bona fide being based on adoption of one of the possible views. The Tribunal also found that the assessee had furnished all the material facts relevant to the said claim and, therefore, it could not be said that the assessee had concealed income by furnishing inaccurate particulars so as to attract penalty under section 271(1)(c). The fact that the claim of the assessee was not finally accepted in the quantum proceedings before the Tribunal would not by itself be a ground for justifying the imposition and levy of penalty under section 271(1)(c) of the said Act. 4. We are in agreement with the findings recorded by the Tribunal with regard to the penalty proceedings. The Tribunal has correctly appreciated the law on this aspect and has applied it to the facts determined by it. No cause for interference has been made out by the appellant. No substantial question of law arises for our consideration. These appeals are dismissed.
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2008 (9) TMI 944
Valuation of the property - sale of office premises - invocation of provisions of s. 50C - HELD THAT:- We find that the contention of the assessee that the agreement to sell the property was entered into on the date of first instalment of the amount in consideration i.e. 11th May, 2002 and handed over the possession of the property in question by the seller to the assessee (sic) on the payment of entire consideration on 4th Sept., 2002 has not been accepted by the lower authorities in absence of a written agreement on those dates.
With the above contentions, the assessee intended to make a case that sale was completed well before coming into operation of the provisions of s. 50C of the Act w.e.f. 1st April, 2003, hence the provisions of s. 50C of the Act are not applicable in the present case merely because the sale deed was registered two years later on 10th March, 2004. We thus in the interest of justice while setting aside the orders of the lower authorities remand the matter to the file of the AO.
An alternative contention of the ld AR remained that if the sale is considered to have come into effect on the date of registration of sale deed i.e. 10th March, 2004, then the relevant AY for the invocation of provisions of s. 50C of the Act would be the AY 2004-05 and not the AY 2003-04 under consideration. Since we have remanded the matter to the file of the AO, the AO is directed to consider this aspect of the matter while deciding the issue as directed above. The ground No. 1 is accordingly allowed for statistical purposes.
Valuation of the property - difference between the value of land estimated by the Valuation Officer and shown by the assessee - CIT(A) upheld the action of the AO for invoking provisions of s. 50C and made addition - HELD THAT:- We concur with the contention of the ld AR which is also supported by the decision of Jodhpur Bench of the Tribunal in the case of Navneet Kumar Thakkar vs. ITO [2007 (3) TMI 317 - ITAT JODHPUR] that provisions of s. 50C cannot be invoked in absence of a registered document i.e. in absence of the value adopted or assessed by any authority of State Government i.e. the stamp valuation authority for the purpose of payment of stamp duty in respect of such transfer.
Admittedly, in the present case, there was no registered sale deed to enable the AO to adopt or assess the value assessed by the stamp valuation authority for the purpose of s. 48 treating the same as full value of the consideration received or accruing as a result of such transfer. There was also no evidence that the assessee had received higher amount in consideration against the sale of that plot than shown by the parties in the agreement to sale. We thus while setting aside orders of the lower authority direct the AO to delete the addition in question.
The ground No. 2 is thus allowed. The appeal is accordingly partly allowed.
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2008 (9) TMI 943
Addition u/s 68 - unexplained cash credit - Disallowance of deferred revenue expenditure.
Addition u/s 68 - unexplained cash credit - HELD THAT:- We have heard the ld counsel for the appellant and have examined the findings returned by the Tribunal as well as those returned by the CIT (A) and find ourselves to be in agreement with the conclusions arrived at by the Tribunal. The AO is not permitted to examine the source of the source once the assessee has been able to establish that the transaction with his creditors is genuine and that the creditors identities and creditworthiness have been established. In this case, this had been done, therefore, it was not open to the AO to make the addition after entering upon an examination of the source of the source - Consequently, we feel that no interference is called for on this conclusion in the impugned order passed by the Tribunal.
Disallowance of deferred revenue expenditure - We note that this is a clear finding of fact and the Tribunal has accepted the findings returned by the CIT (A) and has permitted the deduction of expenses towards advertisement which were admittedly of a revenue nature. The assessee had deferred the revenue expenditure in the year preceding the previous year relevant to the assessment year in question. The advertising expenses had been incurred on account of the franchise agreements - The finding of the CIT (A) is that the business has commenced in the year in question. He has also returned a finding that due to certain reasons, the franchisee agreements got revoked in this year also. There was no option left with the assessee but to claim the deduction in this year after having deferred the revenue expenditure in the preceding year. The Tribunal confirmed the findings of the CIT (A).
We do not find any infirmity in the impugned order. In any event, no substantial question of law arises for our consideration. The appeal is dismissed.
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2008 (9) TMI 942
The petitioners have prayed for an alternative place for investigation or in any case, his Counsel may be permitted to remain present at the time of interrogation - Held that: - the applicants' advocate is permitted to remain present though at a distance from where he can see the proceedings of the interrogation. However, in any case, the lawyer shall not be permitted to interfere in the proceedings - decided in favor of applicant.
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2008 (9) TMI 941
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... ... ..... A was justifiable and hence the ld. CIT(A) was justified in directing the A.O to all the claim of the assessee under section 10A. We therefore, taking the totality of the present case before us and in the light of above discussion, are of the opinion that the Ld. CIT(A) while adjudicating the appeal before him has passed a well reasoned and discussed order which does not call for any; interference from our side and accordingly, uphold the same and reject the ground raised by the Revenue.” We are absolutely agreeing with such opinion as expressed by the learned Tribunal and we do not find that there is any substantial question of law is involved in this matter to admit this appeal. Hence the appeal being ITA No. 657 of 2008 is dismissed. All parties concerned are to act on a xerox signed copy of this order on the usual undertakings. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2008 (9) TMI 940
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... ... ..... wellery which was declared in the application filed under VDIS 97, the said amount realised to the said transaction would amount to unexplained investment under section 69 of the Act, Accordingly, for the reasons assigned in the said appeal ITA No. 186/04, we hold that the substantial question of law bad to be answered in affirmative and accordingly, we pass the following order i. The appeal is allowed ii. The order passed by the Income tax Appellate Tribunal, Bangalore Bench ‘C’ in No. 449/bang/2003 for the assessment year 1998-99 confirming the order passed by the Commissioner of Income Tax (Appeals) dated 7.3.2003 who inturn had confirmed the order passed by the Assessing Officer insofar as it relates to sale of jewellery to M/s. Mahalaxmi jewellery is set aside and the matter is remitted to the Income tax Officer, Ward Noo. 1(3), Hubli, for fresh consideration of the case in accordance with law in the light of the observation made in the body of the judgment.
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2008 (9) TMI 939
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... ... ..... dy, JJ. ORDER Appeal dismissed.
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