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2010 (11) TMI 1073 - ANDHRA PRADESH HIGH COURT
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... ... ..... ch non-educational objects also. Since the basic requirement of Section 10(23-C)(vi) of the Act is that the educational institution must exist solely for the purpose of education, and not for the purpose of profit, inclusion of non-educational objects in the memorandum of association/bye-laws of the society would disentitle them from claiming the benefit of exemption under Section 10(23-C)(vi) of the Act. The aforestated objects cannot be characterized as ancillary or incidental to, or to be integrally connected with, the object of imparting education. Since the petitioners also have non-educational objects, as part of their objects, the Chief Commissioner of Income Tax cannot be faulted for refusing to grant exemption under Section 10(23-C)(vi) of the Act. The reasons assigned by the Chief Commissioner in this regard are well founded, and do not call for interference. All the writ petitions fail and, are, accordingly, dismissed. However, in the circumstances, without costs.
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2010 (11) TMI 1072 - ITAT MUMBAI
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... ... ..... porate assessees such expenses have to be allowed as deduction irrespective of whether or not the assessee is engaged in active business and even if assessee has only passive incomes. The mere fact that no business operations have been carried out in the relevant previous year also does not lead to the conclusion that the assessee ceased to be in business. Unless the business is abandoned or closed and even if business is at a dormant stage waiting for proper market conditions to develop, the expenditure incurred in the course of such a business is to be allowed as deduction. 6. In view of these discussions, as also bearing in mind the entirety of the case, the impugned disallowance indeed deserves to be deleted. For the reasons set out above, we delete the impugned disallowance of ₹ 12,55,869. The assessee gets the relief accordingly. 7. In the result, the appeal is allowed in the terms indicated above. Pronounced in the open court today on 24th day of November, 2010.
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2010 (11) TMI 1071 - ITAT AHMEDABAD
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... ... ..... /- on account of advertisement expenses, we are of the opinion that mere disallowance of a claim will not amount to filing of inaccurate particulars of income. It can at best be a "wrong claim" not "a false claim". In such circumstances, Hon'ble Delhi High Court held in the case of Commissioner Of Income-Tax.vs Bacardi Martini India Limited.,288 ITR 585(Del) that no penalty was leviable. Therefore, levy of penalty on the amount disallowed on account of advertisement expenses is not justified. The AO shall, accordingly, exclude the amount while working out quantum of penalty. With these observations ground nos.1 & 2 in the appeal are disposed of. 11. No additional ground giving been raised before us in terms of residuary ground no.3 in the appeal, accordingly, this ground is also dismissed. No other plea or argument was raised before us. 12. In the result, appeal is partly allowed as indicated above. Order pronounced in the court today on19-11-2010
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2010 (11) TMI 1070 - SUPREME COURT
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... ... ..... r judgment is restricted only to the interpretation of clause 6.4.6 of the Interconnect Agreement read with the Addenda. As stated above, we have held that clause 6.4.6 represents pre-estimate of reasonable compensation for the loss suffered by BSNL. Thus, we set aside the impugned judgment and remit the matter to TDSAT to decide the matter de novo in accordance with the law laid down hereinabove. However, we need to highlight one aspect. In the letter dated 13th October, 2004 addressed by BSNL to Reliance, it has been alleged that the calls have landed at the POIs of M/s. Reliance Infocomm. Ltd. at Karellbaug, Panigate, Alkapuri, Makarpura, Padra, Dabhoi and Miyagam exchanges in Vadodara SSA. The said letter highlights one more important aspect. It is alleged that the number 2813041000 was an unallocated number with Reliance during the relevant period. This aspect needs to be examined by TDSAT on facts. 21. Accordingly, the civil appeal is allowed with no order as to costs.
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2010 (11) TMI 1069 - SUPREME COURT
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... ... ..... pter X, is meant only to establish the receipt of goods by the recipient unit and their utilization. The Tribunal completely overlooked the object and purpose of the procedure laid down in Chapter X. The goods manufactured at the supplier end were excisable goods and if a party wants remission of duty, he has to follow certain pre- requisities, the object of which is to see that the goods be not diverted or utilized for some other purpose, on the guise of the exemption notification. Detailed procedures have been laid down in Chapter X so as to curb the diversion and misutilization of goods which are otherwise excisable. The plea of "substantial compliance" and "intended use" is, therefore, rejected for the reasons already stated. 35. Consequently, Civil Appeal Nos. 1878-1880 of 2004 and Civil Appeal Nos. 568-569 of 2009 preferred by the Revenue would stand allowed and Civil Appeal No. 1631 of 2001 shall stand dismissed. There will be no order as to costs.
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2010 (11) TMI 1068 - MADRAS HIGH COURT
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... ... ..... ted time till 30th January, 1997 to file their objections in respect of other issues.” 12. The said decision was said to have become final and conclusive. Inasmuch as there is no challenge to the order of the Special Tribunal, the reasoning of the Tribunal passed on different set of expressions used in the proviso to clause (b) of Section 3(3) and Subsection 4 to Section 3 was well justified. We also fully concur with the conclusion of the Special Tribunal on the interpretation of Sec(2) of the Tamil Nadu Additional Sales Tax Act vis-a-vis Section 3(4) of Tamil Nadu General Sales Tax Act as regards the payment of additional sales tax. 13. We therefore, sustain the stand of the appellant that no additional sales tax was leviable under the provisos of the Tamil Nadu General Sales Tax in respect of the tax paid under Section 3(4) of Tamil Nadu General Sales Tax Act. To the above extent, the order of the Tribunal is set aside. 14. Writ petition is partly allowed. No costs.
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2010 (11) TMI 1067 - ITAT, CHENNAI
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... ... ..... g opted by the Assessee the ratio of Special Bench would apply verbatim in its letters and spirit. Therefore, we allow this issue in favour of the Assessee by following the Special Bench and the Chennai Bench decision. 9. The next issue that each windmill is a separate undertaking is taken vide ground Nos. 6 and 7. This issue is covered in favour of the Assessee by the decision of the Chennai Bench in the case of Bennari Amman Sugars in ITA No. 1162/Mad/2008 in which it has been held that each co-generation plant installed in different years has to be considered as a separate undertaking and the profit/loss cannot be clubbed in order to compute the deduction under Section 80-IA of the Act. The facts of the above decision are exactly similar to the facts of this case. Therefore, by following the above Chennai Bench decision, we set aside the appellate finding and allow ground Nos. 6 and 7 in favour of the Assessee. 10. In the result, the appeal of the Assessee stands allowed.
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2010 (11) TMI 1066 - CESTAT, BANGALORE
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... ... ..... covered by this Bench decision in favour of the assessee. At the same time, we are not able to ascertain the fact whether the supplier of the raw materials had added those goods to their non-duty paid stock, in the absence of any evidence. Accordingly, holding that the appellants are not required to discharge the duty liability as the defective inputs were returned back to the original supplier, we at the same time, remand the matter back to the adjudicating authority for only a limited purpose of verifying the records regarding evidence as to whether the original manufacturer/supplier had received back the defective goods from the appellant and added the same in their non-duty paid stock. If it is found recorded, then the question of further action in this case does not arise. Accordingly, the impugned order is set aside and the appeal is disposed of as indicated herein above. (Operative portion of the order was pronounced in the court on conclusion of hearing on 9/11/2010)
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2010 (11) TMI 1065 - DELHI HIGH COURT
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... ... ..... the electric cables are used in voltage stabilizers as well. The trade channel is essentially the same. The goods are available usually in the same place as well. Use of an identical mark in respect of the two goods is bound to cause deception and confusion in the market. The Deputy Registrar and the IPAB concurrently concluded that the triple identity test stood satisfied in the present case, particularly since the description of the goods is the same, the area of the sale and the trade channel are the same. This Court concurs with the said view. The registration in favour of Respondent No. 1 dates back to 1980, whereas the Petitioner‟s invoices, all of which do not show use of the mark in relation to goods, is only since 1984. In the circumstances, the plea of concurrent user is not available to be taken by the Petitioner. 12. This Court finds that no ground is made out to interfere with the impugned order dated 10th March 2005 of the IPAB. The petition is dismissed.
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2010 (11) TMI 1064 - ITAT, MUMBAI
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... ... ..... 35 should be the determining factor for applying the provisions of Sec.23(1)(a) of the Act. Since the rent received by the Assessee was more than the sum for which the property might reasonably be expected to let from year to year, the actual rent received should be the annual value of the property u/s.23(1)(b) of the Act. Notional interest on interest free security deposit/rent received in advance should not be added to the same in view of the decision of the Hon’ble Bombay High Court in the case of J.K.Investors (Bombay) Ltd. (supra). We hold accordingly. The appeal of the revenue is dismissed. 7. The reasons given above, will equally apply to the facts of the present case, which are identical to the case decided by the Tribunal referred to above. Respectfully following the same, we uphold the order of CIT(A) and dismiss the appeal by the Revenue. 8. In the result, the appeal by the Revenue is dismissed. Order pronounced in the open court on the 26th day of Nov .2010
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2010 (11) TMI 1063 - DELHI HIGH COURT
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... ... ..... making at any level. And ultimately, in the appellate ladder, the challenge to correctness of decisions has to stop somewhere. Just as the task of challenging a decision, rendered in a lis at the interlocutory or final stage, in the higher forum is left to the person affected by such decision, the task of defending such decision should be left to the party in whose favour such decision has been rendered. The Lokayukta, or for that matter any decision-maker, should not take that burden on itself. The Lokayukta, as much as the parties to the lis before the Lokayukta, has to accept the final verdict of the higher forum on the correctness of his decision. That is the unwritten premise on which the entire hierarchical legal system functions. In the considered view of this Court, the Lokayukta cannot, in the facts and circumstances, be 'impleaded' or be permitted to be heard in the writ petitions in support of its orders under challenge. 33. The applications are dismissed.
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2010 (11) TMI 1062 - SUPREME COURT
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... ... ..... of the constitutional provisions, it would not be in conformity with the constitutional mandate to designate every institution, determining disputes of civil nature, a 'Court' or the person presiding over such institution as holding a 'judicial office'. 44. For the reasons afore-recorded, we have no hesitation in holding that the Principal and other Judges of the Family Court may be 'Judges' presiding over such courts in its 'generic sense' but stricto sensu are neither Members/integral part of the 'Judicial Services' of the State of Maharashtra as defined under Article 236 nor do they hold a 'judicial office' as contemplated under Article 217 of the Constitution of India. Thus, they do not have any jus legitimum to be considered for elevation to the High Court. therefore, we find no merit in this Writ Petition. The same is dismissed. 45. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2010 (11) TMI 1061 - SUPREME COURT
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... ... ..... rocky area therein cannot change its character. 56. Moreover, it is pertinent to observe that the appellant has based his claim on the basis of possession of land without any deed of conveyance or sale deed to support the same. Moreover, such a claim is not based on any interest on the land, but on the fact that the appellant used to perform quarrying operations on the same. Therefore, the Maharashtra Revenue Tribunal while holding that the land in question cannot be treated as "forest" or "private forest" under the Act of 1975, still chose to dismiss the claim of the appellant herein. In appeal, the High Court was also inclined to do the same. Consequently, it is clear that the appellant stands on the same, if not weaker, footing as the Corporation. In the light of the reasons that we have enunciated in Civil Appeal No. 2147 of 2004, which are entirely applicable to the case at hand, we find that the appeal is without merit and deserves to be dismissed.
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2010 (11) TMI 1060 - DELHI HIGH COURT
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... ... ..... with the well reasoned judgment of learned Single Judge in terms of Skyline Education Institute (India) Private Limited v. S.L. Vaswani and Anr. (2010) 2 SCC 142. The appeal is therefore dismissed. We may state that ordinarily being a commercial matter where giant companies can afford to pay costs we would have imposed actual costs on the appellant, however, we desist from doing so because there is no authoritative pronouncement of a Division Bench of this Court on certain aspects we have dealt with in this judgment including with respect to an entitlement of a plaintiff to an infringement action with respect to a descriptive word trademark and related word marks which are otherwise such for which there is an absolute ground for refusal of registration. 23. The appeal is therefore dismissed, leaving the parties to bear their own costs. Nothing contained herein will amount to any expression on the final merits and the factual aspects affecting the final judgment in the case.
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2010 (11) TMI 1059 - SUPREME COURT
Additional charges/surcharge payable on the delayed payment of outstanding electricity dues raised under Clause 32.2.1 and 34 of the Terms and Conditions of supply (TCS) - upward revision of price - HELD THAT:- The Electricity Board appealed to this Court against the judgment of the High Court. Allowing the appeals preferred by the Board this Court took the view that while the consumers had no obligation to take notice of the revised tariffs and to make any payment on the basis thereof after the judgment of the High Court of Kerala till the said decision was reversed by this Court, yet no sooner the decision of this Court upheld the upward revision of the tariffs, the Board's entitlement to draw bills on the basis of the revisions and consequently enforce payment of such bills by the consumers revived with full force. This Court repelled the contention that the liability to pay the revised tariffs accrued only after the pronouncement of the judgment of this Court upholding the upward revision and not from any date prior to that. This Court held that once the upward revision was found to be valid and enforceable such revision would be effective from the date the revision was made, no matter such revision had remained unenforceable for some period on account of the decision of the High Court.
It is quite evident that this Court had upheld the claim for payment of interest @ 18% p.a. primarily because of the stipulation contained in the tariffs/agreement executed between the Board and the consumer providing for payment of interest at that rate in the event of delay in the payment/discharge of the bills raised against the consumer. It is not as though this Court had refused to enforce the stipulation contained in the tariffs providing for recovery of interest from the consumer if the latter failed to pay the amounts within the time stipulated - The very fact there was during the intervening period an erroneous decision of the High Court obliterating the revision in full or in part would make little difference in so far as the liability to pay the amount under the revised tariffs was concerned. So also the fact that the consumers were not deliberately in default on account of the judgment of the High Court did not affect the enforceability of the demand arising from the revised tariffs or the stipulation regarding payment of interest demanded on the same on account of the non- payment or delayed payment of the amount recoverable by the Board.
Reliance placed upon the decision of this Court in KANORIA CHEMICALS & INDUSTRIES LTD. VERSUS UP. STATE ELECTRICITY BOARD [1997 (3) TMI 600 - SUPREME COURT]. That was also a case where the validity of a notification issued by the U.P. State Electricity Board revising the electricity rates/tariffs under Section 49 of the Electricity (Supply) Act, 1948 was challenged by the consumers. Interlocutory applications filed in the writ petitions for stay of the operation of the impugned notification were eventually dismissed by the High Court whereupon the consumers deposited the differential amount between the pre-revised and the revised electricity rates. Consumers did not, however, deposit the late payment surcharge "recoverable" in terms of Clause 7(b) of the notification. Notices of demand were, therefore, issued to the consumers which were challenged in a fresh batch of writ petitions filed by them - The main contention urged by the consumers before the High Court was that since the operation of the notification revising the tariffs had been stayed between 25th July, 1990 and 1st March, 1993, no late payment surcharge could be levied on the amount withheld by the petitioners under the orders of the Court, no matter the writ petitions were finally dismissed. That contention was rejected by a Division Bench of the High Court of Allahabad. The matter was then brought up to this Court in appeal by the consumers, inter alia, contending that the stay of the operation of the impugned notification relieved the consumers of the obligation to pay the revised tariffs/rates and consequently additional charges for late payment, if any.
Both on the question of restitution of the benefit drawn by a party during legal proceedings that eventually fail as also on the general principle that a party who fails in the main proceedings cannot benefit from the interim order issued during the pendency of such proceedings, this Court found against the consumers and upheld the demand for payment of additional charges recoverable on account of the delay in the payment of the outstanding dues. Far from lending any assistance to the appellant-company the decision squarely goes against it and has been correctly appreciated and applied by the High Court.
Appeal dismissed.
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2010 (11) TMI 1058 - SUPREME COURT
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... ... ..... should not try to take over the function of the Parliament or executive. It is the legislature alone which can amend Section 320 Cr.P.C. We are of the opinion that the above three decisions require to be re-considered as, in our opinion, something which cannot be done directly cannot be done indirectly. In our, prima facie, opinion, non-compoundable offences cannot be permitted to be compounded by the Court, whether directly or indirectly. Hence, the above three decisions do not appear to us to be correctly decided. It is true that in the last two decisions, one of us, Hon'ble Mr. Justice Markandey Katju, was a member but a Judge should always be open to correct his mistakes. We feel that these decisions require re-consideration and hence we direct that this matter be placed before a larger Bench to reconsider the correctness of the aforesaid three decisions. Let the papers of this case be placed before Hon'ble Chief Justice of India for constituting a larger Bench.
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2010 (11) TMI 1057 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... ces of the case. Undoubtedly, the appellants made huge profits through their illegal acts and have used the money since then. They must pay interest. Taking note of the reprehensible conduct of the appellants in cornering shares through devious means whereby they deprived the genuine retail investors of their rightful claim and also having regard to the general rate of interest at which loans are advanced by commercial banks, we do not think that the rate of 12 per cent as fixed by the whole time member is excessive by any standard. We are further of the view that it was not necessary for the Board to mention in the show cause notice that the appellants would also be liable to pay interest once they are ordered to disgorge the ill-gotten gains. The question of payment of interest is a matter of discretion which, in the facts of this case, has been judiciously exercised. In the result, the appeal fails and the same stands dismissed leaving the parties to bear their own costs.
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2010 (11) TMI 1056 - DELHI HIGH COURT
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... ... ..... neral of India and on the contrary in fact indicate the requirement of 75 of the secured assets to be purchased by an asset reconstruction company or securitisation company. ( 12. ) In view of the above, our conclusion therefore is that undoubtedly, a literal interpretation of the 2nd proviso to Section 15(1) of the SICA does not require any minimum percentage of the secured assets to be purchased by an asset reconstruction company or a securitization company acting under the SARFAESI Act, however, the literal interpretation results in an absurdity and a stalemate which can and should be avoided by requiring in the 2nd proviso to Section 15(1) that the asset reconstruction company or the securitisation company must purchase at least 75 or more of the secured assets of a Sick Industrial Company before it can claim to bring into effect the second proviso to Section 15(1). ( 13. ) In view of the above, the writ petition is dismissed, leaving the parties to bear their own costs.
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2010 (11) TMI 1055 - ITAT MUMBAI
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... ... ..... . We therefore delete the disallowances and allow the first ground. 3. So far as the second ground is concerned, it is against the disallowance of 20 of the vehicle expenses of ₹ 2,12,916/-. The average monthly and daily expenses as per the chart filed by the assessee can be ₹ 17,743/- and ₹ 583/- respectively. Some personal use of the vehicle cannot be ruled out. However, the disallowance made seems to be on the higher side. We reduce the same to 10 of the expenses and allow the ground in part. 4. The third ground relates to disallowance of 15 of the telephone expenses of ₹ 1,27,300/-. Though considering the nature of the assessee’s business, the expenses seem to be reasonable, some personal use of the telephone cannot be ruled out. We however reduce such personal use to 10 of the telephone expenses and allow the ground in part. 5. In the result, the appeal is partly allowed. Order pronounced in the open court on this 4th day of November, 2010.
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2010 (11) TMI 1054 - ITAT DELHI
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... ... ..... e is not interested in prosecuting its appeal. Considering these facts and keeping in mind the provisions of Rule 19(2) of the ITAT Rules as were considered by the Tribunal in CIT Vs. Multiplan (India) Pvt. Ltd. - 38 ITD 320 (Del) and M.P.High Court in the case of Late Tukoji Rao Holkar - 223 ITR 480 (MP), we treat this appeal as unadmitted. 2. In the result, the appeal filed by the assessee is dismissed. 3. The order pronounced in the open court on 30.11.2010.
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