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Case Laws
Showing 61 to 80 of 855 Records
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2009 (3) TMI 1044 - ITAT CHENNAI
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... ... ..... ctually did not fall under the ambit of that section . 16. In the case of Frontline Offshore Exploration (India) Ltd. cited by the Revenue this Tribunal was of the opinion that where an element of profit is involved and the same is paid by the assessee then tax cannot be deducted at source on the entire gross amount and not on the portion of the profit embedded in the payment. In this case also the facts are distinguishable as the recipient has rendered some part of the services in India. Further, the decision of the Tribunal relied upon by the ld. Counsel for the assessee in JCIT v. George Williamson (Assam) Ltd. (supra) is fully applicable on the facts of the case. Accordingly, in the background of the aforesaid discussion and precedents, we uphold the order of the ld. Commissioner (Appeals) and decide this issue in favour of the Revenue. 17. In the result, this appeal filed by the Revenue is dismissed. Pronouncement to this effect was made in the open Court on 06.03.2009.
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2009 (3) TMI 1043 - COMPANY LAW BOARD
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... ... ..... ce higher than the one quoted by the other person shall have the first option to buy the shares of the other person. Thereupon, the Company Law Board will give appropriate directions ordering the person quoting higher price to purchase the shares of the other person quoting lower price. Towards this end, the connected parties shall remain present on May 15, 2009 at 2.30 p. m. The parties are at liberty to apply, in the event of any difficulty in implementation of the working formalities on the exit of either of them and till such time the company's immovable property shall not be alienated or sold, without written concurrence of the petitioner and the second respondent. (10.) WITH the above directions, the company petition stands disposed of, how 14 ever, reserving the right to issue appropriate directions on the exit of either of the parties from the company. In view of this, the interim order made in C.A. No. 179 of 2006 is appropriately modified. No order as to costs.
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2009 (3) TMI 1042 - SUPREME COURT
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... ... ..... t is not a must in all cases of cognizable offences, and in deciding whether to arrest or not the police officer must be guided and act according to the principles laid down in Joginder Kumar's case (supra). Since, charge sheet has been filed and cognizance has been taken, and on the facts of this case, in our opinion, this is not a fit case for quashing the first information report. The Appeal is dismissed, However, the appellant is granted time to appear before the trial Court on or before 15th April, 2009 and to file an application for bail. If such an application is filed, the trial Court shall consider the same on its own merits in accordance with law, and if it so deems fit, grant interim bail to the appellant pending the final disposal of his bail application. Let a copy of this judgment be sent to the Registrar General of the Allahabad High Court who will circulate it to all Hon'ble Judges of the High Court and send copies to all District Judges in the State.
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2009 (3) TMI 1041 - DELHI HIGH COURT
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... ... ..... f being heard and given recourse to material which was subsequently filed before the designated Authority. Accordingly, we set aside the impugned order and direct the Petitioner to appear before the designated Authority on 2nd of April, 2009 at 3.00 PM. It is clarified that appearance before the designated Authority shall not be construed as waiver by the Petitioner of its objection as to jurisdiction. This objection may also be raised before the designated Authority so that a decision is returned also on this aspect of this matter. Mr Kaul, Senior Advocate for the Petitioner, prays for liberty to approach the Court if the Petitioner is still aggrieved after the passing of the fresh order. Needless to say that it would be totally a new cause of action on which liberty need not be granted, but it is nevertheless clarified, that if the Petitioner is aggrieved it may approach the High Court or the appropriate forum for redressal. Writ Petition stands disposed of in these terms.
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2009 (3) TMI 1040 - DELHI HIGH COURT
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... ... ..... by the Assessing Officer on account of provision for doubtful debts while computing profit under Section 115JB?? Learned counsel for the Appellant fairly concedes that first two questions are covered by a Judgment dated 27.02.2009 delivered by a Division Bench of this Court in ITA No.873/2008 entitled Commissioner of Income Tax-IV ?vs- INSILCO Limited which is assessee?s own case relating to immediately preceding assessment year. He also admits that the third question already stands answered against the Revenue in 2008 305 ITR 409, entitled Commissioner of Income Tax ?vs- HCL Comnet Systems and Services Ltd. This Appeal is accordingly dismissed.
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2009 (3) TMI 1039 - ITAT AHMEDABAD
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... ... ..... e assessee was guilty of furnishing of inaccurate particulars of income in respect of an amount. In the instant case, it is observed from the order of the AO that he has not arrived at a final conclusion as to whether the assessee was guilty of concealment of income, or the assessee was guilty of furnishing inaccurate particulars of income. The word “and” used in the order levied penalty clearly indicates that the AO could not clearly specify that assessee was guilty of either concealment of income or of furnishing of inaccurate particulars of income. Therefore, in view of the decision of the jurisdictional high Court in the case of New Sorathia Engineering Co.(Supra), the order of the AO suffers from a legal error and therefore, bad in law. We therefore, set aside the order of the Lower authorities and delete the penalty of ₹ 23.42.010/-. 7. In the result, the appeal of the assessee is allowed. Order signed, dated and pronounced in the Court on 19/03/2009.
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2009 (3) TMI 1038 - BOMBAY HIGH COURT
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... ... ..... irst question is concerned, we had considered the issue in the case of CIT Vs. Saxeria in Income Tax Appeal No. 2318/Mum/94 decided on 4.2.2008. We had therein considered the ratio of the Calcutta High Court in CIT Vs. 238 ITR 445. We had also noted that the Special Leave Petition against the said order was dismissed. We had approved the view taken by the Calcutta High Court. In our opinion, the finding by the tribunal that the receipt amounts to capital receipt cannot be faulted with. The assessee had taken loan for the purpose of expansion of the existing industrial undertaking in the instant case for the production of sugar. Under the scheme available, on expansion the assessee was entitled for sale of additional quota of sugar. The sale proceeds were to be adjusted toward the repayment of loan taken by the assessee. In these circumstances, in our opinion, the same would amount to capital receipts. The first question also would not arise and consequently appeal dismissed.
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2009 (3) TMI 1037 - ALLAHABAD HIGH COURT
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... ... ..... lved by this Court. As an interim measure, the recovery proceedings pursuant to the order dated 4.6.09 passed by the Deputy Commissioner, Section 1, Commercial Tax, Kanpur, respondent No. 3 filed as Annexure 7 to the writ petition shall remain stayed provided the petitioner furnishes adequate security to the satisfaction of the said respondent within a period of two weeks from today. The respondent No. 3 shall not insist upon furnishing of security in the form of cash or bank guarantee. In the event of default in furnishing of the security within the speficied period, the interim order staying the recovery shall automatically stand discharged and the authorities would be at liberty to recover the amount in accordance with law.
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2009 (3) TMI 1036 - BOMBAY HIGH COURT
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... ... ..... ned counsel submits that considering the accounting practices additions have to be made at three stages which are (1) Purchase of goods, (2) Sales of Goods and (3) Inventory. In the instant case, it is submitted that what has been allowed is only in the inventory and not in the case of purchase and sale considering that the appellant was following the non-inclusive method of accounting. Considering the above, in our opinion, the order does not require to be interfered with except to extend that the A.O. will follow the law in terms of Section 145A considering that the judgment of Delhi High Court did not deal with this issue. 3. With the above observations, appeal stands dismissed.
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2009 (3) TMI 1035 - MADRAS HIGH COURT
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... ... ..... epresentation to the Advisory Board. But, in the case on hand, we are pained to note that though the petitioner/detenu has requested for correct translated copies of the documents and also to furnish copies of certain other relied upon documents, they were supplied only on 14.7.2008, i.e. after the meeting of the Advisory Board on 10.7.2008, thus defeating the very purpose of the request made on the part of the petitioner/detenu and thus has caused much prejudice to the petitioner/detenu. 16. Though many other grounds have been raised by the learned senior counsel for the petitioner/detenu, since the above discussed grounds are sufficient to hold the impugned detention order as bad in law, we feel it not necessary to take all such other grounds for discussion. In the result, this Habeas Corpus Petition is allowed, setting aside the impugned order of detention. The petitioner/detenu is ordered to be set at liberty forthwith, if his detention is not required in any other case.
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2009 (3) TMI 1034 - CESTAT MUMBAI
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... ... ..... material period and the cost of food formed part of the expenditure incurred by the factory, which had a bearing on the cost of production of the final product. On similar facts, a larger bench of the Tribunal in CCE Mumbai vs. GTC Inds. Ltd. 2008 (12) STR 468 (Tri-LB) held that the service tax paid on outdoor catering service was admissible as input service tax credit to the assessee who had more than 250 employees in their factory and had been taking into account the cost of food in determining the cost of production of final product. The larger bench took such view after examining CAS 4 which defined the cost of production. 2. Following the larger bench decision, I hold that the lower authority was right in allowing the respondent to avail CENVAT credit of service tax paid on outdoor catering service availed by them in the factory canteen for supply of food to the employees during the material period. The Revenue's appeal is devoid of merit and the same of dismissed.
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2009 (3) TMI 1033 - CESTAT MUMBAI
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... ... ..... . GTC Industries Ltd. 2008 (12) STR 468 (Tri-LB). Therefore, I am inclined to dispose of the appeal itself finally. Accordingly, after dispensing with pre-deposit, the appeal is taken up. 2. The Larger Bench in the aforesaid case held, in respect of a manufacturing unit which employed more than 250 workers, that CENVAT credit of service tax paid on outdoor catering service availed in the factory canteen for supply of food to workers could be taken and utilised for payment of duty on excisable products of that factory where the cost of supply of food also formed part of the cost of production of such products. The conditions laid down by the Bench have bean satisfied in the instant case and, therefore, the benefit of the above decision is available to the appellant. 3. In the result, it is held that the appellants are entitled to CENVAT Credit of the service tax paid on outdoor catering service received in the factory-canteen during the material period. The appeal is allowed.
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2009 (3) TMI 1032 - SUPREME COURT
Interpretation of the statute - dissolution of an unregistered partnership firm - suit not maintainable in view of sub-section (2A) of Section 69 of the Indian Partnership Act, 1932 (`the Act') - Whether sub-section 2A of Section 69 inserted by the Maharashtra Amendment violates Articles 14, 19(1)(g) and 300A - Bombay City Civil Court by order dated 16.8.1999 made a reference to the High Court u/s 113 of C.P.C. The High Court held that the said sub-section 2A of Section 69 of the Act is not unconstitutional.
HELD THAT:- Article 300A of the Constitution of India states :- "No person shall be deprived of his property save by authority of law."
It is by now well settled that a law to be valid has to be non arbitrary vide the 7-Judge Bench decision of this Court in Maneka Gandhi vs. Union of India and another [1978 (1) TMI 161 - SUPREME COURT]
Sub-section 2A virtually deprives a partner of a firm from his share in the property of the firm without any compensation. Also, it prohibits him from seeking dissolution of the firm although he may want it dissolved.
Article 14 guarantees the right to equality and states that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Equal protection means the right to equal treatment in similar circumstances. In other words there can be classification for legitimate purposes, but it is well settled that the classification must be reasonable i.e. based on intelligible differentia and having nexus between the basis for classification and the object of the legislation.
Under Article 19(1)(g) of the Constitution all persons have the right to practice any profession or to carry on any occupation, trade or business. Clause (6) of that Article enables the State to make any law imposing, in the interest of general public, reasonable restrictions on the exercise of the right conferred under sub-clause (g) of Article 19(1).
The primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Act the statements recorded in the Register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the Register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act.
A partnership firm can come into existence and function without being registered. However, the Maharashtra Amendment effects such stringent disabilities on a firm as in our opinion are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties.
Similarly, a partner who is not registered is unable to enforce his claims against third parties or against his fellow partners. An exception to this disability was a suit for dissolution of a firm or a suit for accounts of a dissolved firm or a suit for recovery of property of a dissolved firm. Thus a partnership firm can come into existence, function as long as there is no problem, and disappear from existence without being registered. This is changed by the 1984 Amendment extending the bar of the proceedings to a suit for dissolution or recovery of property as well.
The effect of the Amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes amongst the partners the relationship of partnership cannot be put an end to by approaching a court of law. A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice. Might would be right.
An aggrieved partner is left without any remedy whatsoever. He can neither file a suit to compel the mischievous partner to cooperate for registration, as such a suit is not maintainable, nor can he resort to arbitration if any, because the arbitration proceedings would be hit by Section 69(1) of the Act (Jagdish Chandra Gupta vs. Kajaria Traders (India) Ltd.[1964 (4) TMI 109 - SUPREME COURT].
Therefore, the restrictions placed by sub-section 2A of Section 69 introduced by the Maharshtra Amendment Act, for the reasons given above, are arbitrary and of excessive nature and go beyond what is in the public interest. Hence the restrictions cannot be regarded as reasonable.
The High Court was of the view that the object of the Maharashtra Amendment was to induce partners to register and it was intended to protect third party members of the public. We cannot see how sub-section 2A of Section 69 in any way protects the third party members of the public. It makes it virtually impossible for partners in an unregistered firm to dissolve the firm or recover their share in the property of the firm. Hence it is totally arbitrary.
Since in our opinion sub-section 2A of Section 69 as introduced by the Maharashtra Legislature clearly violates Articles 14, 19(1)(g) and 300A of the Constitution, it is in our opinion ultra vires and is hence declared unconstitutional. Consequently this appeal is allowed and impugned judgment of the Bombay High Court is set aside. The suit can now proceed ignoring sub-section 2A which we have declared invalid. No costs.
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2009 (3) TMI 1031 - CESTAT, MUMBAI
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... ... ..... given under Section 14 ibid, admitted that they had not supplied the input but only issued the invoices to help the assessee avail MODVAT credit. Neither of these statements was retracted. Therefore, after hearing the learned D.R. and considering his submissions, I hold that MODVAT credit of ₹ 4,47,000/- taken by the appellants on the strength of 15 invoices issued by M/s BOC India Ltd was not admissible to them inasmuch as the input mentioned in those invoices was not received in the factory. The benefit of input duty credit could not be claimed by a manufacturer of final product, under Rule 57A of the Central Excise Rules, 1944 read with Rule 57G of the said Rules, unless the input was received in the factory under cover of a valid document. In the present case, the input was not received in the assessee's factory and not used in, or in relation to, the manufacture of the final product. 3. The impugned order is, therefore, sustained and this appeal is dismissed.
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2009 (3) TMI 1030 - ITAT AHMEDABAD
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... ... ..... contention raised by the learned Departmental Representative regarding insertion of s. 292BB of the Act inserted by Finance Act, 2008, w.e.f. 1st April, 2008, the assessee cannot take the plea that assessment should have been made invalid merely for the reason that no notice under s. 143(2) of the Act was issued or was issued after twelve months from the date of filing of return of income. In this regard, recently, the Delhi Special Bench of the Tribunal in the case of Kuber Tobacco Products (P) Ltd. vs. Dy. CIT (supra), held that s. 292BB, inserted by Finance Act, 2008, w.e.f. 1st April, 2008 has no retrospective effect and is to be construed prospectively. In this view of the matter, we reject the aforesaid contention of the learned Departmental Representative. 16. Since we have quashed the assessment order framed by the AO and confirmed by the learned CIT(A), therefore, we do not think it necessary to decide the appeal on merits. 17. In the result, appeal stands allowed.
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2009 (3) TMI 1029 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... eted.” It is the contention of the learned counsel for the respondentassessee that the aforesaid question posed for adjudication has been answered in favour of the assessee while determining question No.X in Income Tax Reference Nos.80 to 82 of 1982, decided on 16.9.2008. Learned counsel for the appellant-revenue acknowledges the submission made by the learned counsel for the respondent-assessee. In view of the above, the instant appeal is dismissed in view of the order passed by this Court on question No.X in ITR Nos.80 to 82 of 1982, decided on 16.9.2008.
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2009 (3) TMI 1028 - PUNJAB & HARYANA HIGH COURT
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... ... ..... ath Depot (supra) supports the aforesaid principle of law. The very basis of imputing knowledge to the party other than those who were issued notice of cancellation could only be gazette notification. In the absence of gazette notification, no knowledge of cancellation could be imputed. The very object of the publication in the official gazette is to impart knowledge to the public at large about the status of a purchasing dealer. There is no other mode of notifying the cancellation to the rest of the world. The status of transaction entered into by such a dealer with purchasing dealer before the date of publication in the official gazette has to be considered as a bona fide and would qualify for exemption as RD sale as has been provided by Section 5(2)(a)(iii) of the Act. Therefore, the question posed has to be answered in favour of the assessee and against the revenue. In view of the above, the question of law is decided against revenue and in favour of the dealer-assessee.
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2009 (3) TMI 1027 - CESTAT NEW DELHI
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... ... ..... ture. In absence of any date by review order, it does not establish when the review was done. Thus such order does not confer right of appeal on Revenue, since no review order has yet been passed. With the aforesaid observations, the appeal of Revenue is dismissed not being maintainable. (Order dictated and pronounced in the open Court).
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2009 (3) TMI 1026 - UTTARAKHAND HIGH COURT
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... ... ..... s accordingly are held non-maintainable. 7. Both sets of appeals are dismissed in limine. 8. At this stage Mr. K.N. Tripathi, learned Sr. Advocate, appearing for the appellants in the second set of appeals submits that a new cause of action has accrued to the writ petitioners by the coming into force of 2009 Amendment Act, amending some provisions of 1979 Act. We tend to agree with him. Mr. Tripathi submits that the writ petitioners intend to challenge the aforesaid 2009 Amendment Act in this Court and seeks liberty from us for doing so. 9. We do wish to observe that it shall be open to the Writ Petitioners to challenge the aforesaid Amendment Act, if so advised and the judgment of the learned Single Judge impugned in these appeals as well as the judgment passed by us today shall not come in their way in doing so. However, we also do wish to observe that any challenge to the aforesaid Amendment Act shall be dealt with and decided on its own merits and in accordance with law.
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2009 (3) TMI 1025 - SC ORDER
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... ... ..... tnam, Vismai Rao, Ashish Gopal Garg, B. V. Balaram Das For the Respondent Radha Rangaswamy ORDER Delay condoned. Dismissed.
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