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Showing 21 to 40 of 875 Records
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2010 (2) TMI 1304 - GUJARAT HIGH COURT
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... ... ..... n the Special Leave Petitions before the Hon'ble Apex Court, now at this belated stage, more particularly when the writ petitions in the High court and Special Leave Petitions before the Hon'ble Apex Court have long been disposed-off and the period of limitation for appropriate proceedings under the Act has expired, they are not entitled to invoke Rule 33 of Order 41. Therefore, the contention raised on the ground of Order 41 Rule 33 is without merits. Before parting we must state that we are alive to the fact that the petitioners have lost their lands hence we clarify that this order shall not come in the way of the petitioners in taking out appropriate proceedings, if available and permissible, for their claims before appropriate forum in accordance with law. As an upshot of the foregoing discussions, the petitions do not deserve to be entertained and they fail. Hence, we do not accept the petitions and reject the same. There shall, however, be no order as to costs.
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2010 (2) TMI 1303 - SC ORDER
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... ... ..... tters should not be remitted. In the impugned order, no reasons have been given by the High Court. Hence, matters need to be sent back. This is prima facie opinion.
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2010 (2) TMI 1302 - CESTAT MUMBAI
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... ... ..... applicable to a claim for refund of fine and penalty. In support of this contention, the learned Counsel has relied on the Hon'ble Bombay High Court's judgment in United Spirit Ltd v. Commissioner of Customs (Import), Mumbai 2009 (167) ECR 80 2009 (240) ELT 513 (Bom) 2009 (94) RLT 286 (Bom), wherein it was held that the principle of unjust enrichment would not be applicable to a claim for refund of redemption fine and that the same was applicable only to claim for refund of duty. This decision of the Hon'ble High Court was followed in Rashtriya Metal Industries Ltd v. Commissioner of Customs, Nhava Sheva 2009 TIOL 1953 CESTAT-MUM. 3. Following the ruling of the Hon'ble High Court, we hold that the claim for refund of fine and penalty, filed by the appellant, are liable to be allowed in cash. Accordingly, after setting aside the impugned order, we direct the original authority to effect cash refund of the amounts to the appellant. 4. The appeal stands allowed.
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2010 (2) TMI 1301 - BOMBAY HIGH COURT
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... ... ..... Courts Act, 1971 to catch the attention of this Court for suo motu action of contempt against the petitioners for having initiated this writ petition and pursuing it with the affidavitin-rejoinder. The Caveator also sees placing of the order of 27.08.2009 passed in this writ petition before the Court of Deputy Collector and Sub-Divisional Officer at Panaji, Goa as an act of contempt. When asked to elaborate as to how such acts fall within the definition of criminal contempt actionable under Section 15 of the Contempt of Courts Act, 1971, the Caveator pleaded for dismissal of the said contempt petition and explained that this was merely initiated in response to the office objections raised on the affidavit dated 04.01.2010 filed in response to the order dated 16.12.2009. Suffice to say that recourse to the legal means in pursuit of justice certainly cannot be frowned upon as a criminal contempt. The contempt petition No. 2/2010, therefore, is dismissed for want of prosecution.
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2010 (2) TMI 1300 - GUJARAT HIGH COURT
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... ... ..... used on roads by its own mechanical power and is not meant for transportation on road. However, it can be shifted only by towing with another vehicle. Apart from that it cannot be registered as it is not meant for use on the road by its own power and, therefore it is not a motor vehicle. Thus, the petitioner has purchased the Scrap Road Mobile Crane as a scrap and the same will be treated as a scrap. Hence, as the Scrap Road Mobile Crane is not a motor vehicle, respondent no. 3 has no right to seize and detain the said Scrap Road Mobile Crane. The said action of respondent no. 3 is illegal and contrary to law. 4.1. It is pertinent to note that the petitioner has purchased the said Scrap Road Mobile Crane from respondent no. 4, a Government of India undertaking, and is also not a vehicle, the same is exempted from making any payment towards tax. 5. In view of the above discussion, the petition is allowed. Rule is made absolute to the aforesaid extent with no order as to costs.
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2010 (2) TMI 1299 - SUPREME COURT
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... ... ..... bjections under Section 5A of the Act. Thus, the declarations issued under Section 6 of the Act cannot be quashed. 113. The clear ratio of the aforesaid passage of this Court is that unless the declarations issued by respondents on as many as four dates, as mentioned hereinabove, in the year 1985, are quashed in toto, it cannot be said that respondents could not have proceeded further with regard to acquisition of those lands for which the same has not been quashed earlier. 114. In other words, it has been held that for all remaining lands for which neither the notifications under Section 4 nor declarations under Section 6 have been quashed, acquisition proceedings, notification/declaration issued for remaining lands would continue to hold good and respondents can proceed further. 115. In the light of foregoing discussion, we are of the opinion that appeals have no merit and substance. The same are hereby dismissed with costs. Counsel's fees ₹ 10,000/- in each case.
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2010 (2) TMI 1298 - MADHYA PRADESH HIGH COURT
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... ... ..... e conduct of the Assessee acquires importance, in relation to the proceedings of imposition of penalty or prosecution or conviction of the Assessee and when the Assessee satisfactorily demonstrate that he was having no intention of concealment of Income, either deliberately or indeliberately, the conviction could not be sustained. In the circumstances of the present case also, it is apparent from the perusal of the record that there was no Willful attempt to evade tax or concealment of income on the part of the Assessee Firm or false statement in verification and therefore, it would not be a case of 'Willful Concealment of Income' or even a case of 'Furnishing of inaccurate particulars of Income' and therefore no fault could be found in the impugned Judgment of the Appellate Court. 23. Consequently, this Appeal preferred on behalf of the Union of India against the acquittal of the Assessee Firm is hereby dismissed, however there shall be no Orders as to costs.
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2010 (2) TMI 1297 - MADRAS HIGH COURT
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... ... ..... Benami Transaction (Prohibition) Act, 1988. 16. The Trial Court has simply made an observation that sufficient materials were not produced before it to come to a decision as to whether the subject transaction squarely falls under the provision of the Benami Transaction (Prohibition) Act, 1988 and chose to dismiss the petition filed by the defendant seeking rejection of the Plaint. The petitioner/defendant has established that the present suit is squarely barred under law and therefore the respondent/plaintiff cannot sustain the Suit. Therefore, the Suit filed by the plaintiff is liable to be rejected. 17. In view of the above, the order passed by the Trial Court in I.A. No. 5010 of 2007 in O.S. No. 186 of 2005 is set aside and the plaint filed by the plaintiff in the above Suit stands rejected under Order 7 Rule 11 of C.P.C. 18. In the result, the Revision Petition is allowed. There is no order as to cost. Connected Miscellaneous Petition is closed. Revision Petition allowed.
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2010 (2) TMI 1296 - ITAT MUMBAI
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... ... ..... ted to tax u/s. 44D, r.w. s 115 either - (iv) Scope of 'fees for technical services' under article 12(4)(b) of DTAA does not cover 'consultancy service' unless those services are technical in nature. (v) In case of non-technical consultancy services of instant nature, for computing profits attributable to permanent establishment in India, limitation on deduction of expenses u/s. 44D would not be applicable. (vi) Limitations on deduction of expenses can only be under article 7(3) of DTAA, which can only be such as are applicable for business profits other than profits from royalties and fees for technical services." 12. We find that the facts and circumstances of the case before us are mutatis mutandis similar to those decided by the Tribunal in the case of Bostan Consulting Group Pte Ltd. (supra), therefore following the decision of the co-ordinate Bench, we dismiss the Revenue's appeal. 13. In the result, the appeal filed by the Revenue is dismissed.
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2010 (2) TMI 1295 - SUPREME COURT
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... ... ..... vailable. He may not like to involve himself in litigation. In such circumstances, if a landlord brings the suit to recover possession against trespasser under Section 6, it cannot be laid down as an absolute proposition that tenant must necessarily be impleaded as party to such suit. The view of Bombay High Court in Ratanlal Ghelabhai AIR 1929 Bom 467 that landlord can sue in his own name where there is an injury to the reversion exposits the correct position of law. It may be desirable that a landlord in a suit under Section 6 of the Act against a trespasser for immediate possession when, at the date of dispossession, the house was in occupation of a tenant, impleads the tenant, but his non-impleadment is not fatal to the maintainability of such suit. The view of Madras High Court in (Kanneganti) Ramamanemma and of other High Courts following that view do not appear to us as laying down correct law. 21. In the result, appeal fails and is dismissed with no order as to costs.
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2010 (2) TMI 1294 - GUJARAT HIGH COURT
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... ... ..... s disclosed in alleged survey report. The Tribunal has also referred to the decisions of various Tribunals. The Tribunal has further observed that the Assistant Commissioner in his order has held that though the issue is covered by the earlier decision of the Tribunal, as there is subsequently a Board Circular, the Tribunal decision need not be followed by him. The Tribunal was therefore of the view that the Tribunal decision lays down the correct interpretation of law and cannot be ignored on the ground there is a contrary circular of the Board. Inasmuch as the issue is covered by the various decisions of the Tribunal. Thus the Tribunal has followed its own orders instead of following the Circular of the Board. 4. From the tenor of the questions framed by the Revenue and considering the discussion made by the Tribunal in its order, we are of the view that no substantial question of law arises out of the order of the Tribunal. The Appeal is therefore summarily dismissed.
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2010 (2) TMI 1293 - DELHI HIGH COURT
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... ... ..... right to enjoy Immovable property may be made in lieu of money, a share of crops, service rendered or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee; and the money, share, service or other thing to be so rendered is called the rent. A lease is thus a transfer of a right to enjoy immovable property for monetary or other consideration. Thus, it is not difficult to conceive of a lease of an Immovable property, with a landlord-tenant relationship between the parties, in lieu of a share of profits or in lieu of commission paid or even in lieu of a service rendered. 22. To conclude, on admitted facts, the respondent is entitled to a decree for possession in his favour and the view taken by the learned trial Judge is manifestly correct. No ground for interference has been made out. The appeal is devoid of merit and deserves to be dismissed. 23. RFA 274/2009 and CM No. 10578/2009 are accordingly dismissed with costs.
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2010 (2) TMI 1292 - ITAT AHMEDABAD
Disallowance of component of weighted deduction u/s. 35(2AB) for professional fees - AO disallowed weighted deduction on R & D expenditure on the ground that the prescribed authority has not considered some items to be eligible for weighted deduction - CIT(A) following its order for AY 2001-02 granted relief of weighted deduction for municipal taxes, salary of Dr. C. Dutta and recurring expenditure on building but did not allow weighted deduction on professional fees observing that the same is not eligible to weighted deduction.
HELD THAT:- Respectfully following the assessee’s own case in AY 2001-02, ACIT v/s Torrent Pharmaceuticals LTD.[2009 (11) TMI 819 - ITAT AHMEDABAD] held that; ''Accordingly, this expenditure are for preserving the research which is completed and its clinical trial is pending. As regards to the environmental issue, the assessee-company has set up an affluent plant and as is widely accepted the vegetation, i.e. trees have contained the pollution. This expenditure of gardening and plantation have been done for the perseverance of environment and this is directly related to R & D facilities. As regards to salary paid to Dr. C. Dutt, he is in-charge of R & D Centre at Bhatt. He is the person through whom all coordination of technical scientists and other technical persons are carried out. The entire reporting of the research activity to the management has been taken to the Board of Directors through him only and for this the salary is paid. Accordingly, the assessee has rightly paid the entire expenditure and building repairs on which weighted deduction u/s.35(2AB) is allowable. In view of the above discussion, we allow the claim of the assessee and this issue of the Revenue’s appeal is dismissed and that of the assessee’s CO is allowed.”
Facts being identical to the facts of the assessee in AY 2001-02 and in absence of any distinguishing features, pointed out by the revenue. we allow the ground of appeal of the assessee and dismiss the ground of appeal of the revenue.
Deduction u/s. 80HHC - CIT(A) held that deduction u/s. 80HHC, sales tax was not to be treated as part of total turnover - CIT(A) further directed to exclude the component of excise duty from the total turnover for the purpose of computation of deduction u/s.80HHC -
HELD THAT:- Both the parties before us agreed that the issue is now covered against the assessee by the decision of Hon'ble Supreme court in the case of CIT Vs. Laxmi Machine Works [2007 (4) TMI 202 - SUPREME COURT], wherein it was held that the excise duty and sales tax are not includible in “total turnover” in the formula contained in section 80HHC(3). Therefore, the ground of appeal of the assessee is allowed and the ground of appeal of the revenue is dismissed.
Claim of disallowance u/s 80HHC in respect of income from DEBP was denied by the lower authorities to the assessee on the ground that the additional conditions envisaged in the third proviso to section 80HHC(3) was not satisfied in the instant case.
HELD THAT:- We find that in the case of Topman Exports [2009 (8) TMI 827 - ITAT MUMBAI] it was held that income by way of receipt of DEBP and income by way of profit on sale of DEBP are two distinct and separate income. In our considered view, the lower authorities were justified in denying the claim in respect of profit on sale of DEBP covered by clause (iiid) of section 28. While income in respect of DEBP is the face value of the DEBP and the same is covered by clause (iiib) of section 28 whereas profit on sale of DEBP is only the element of profit i.e. sale price minus face value of DEBP and the same is covered by clause (iiid) of section 28 of the Act.
But in the instant case, from the materials available on record, it is not clear whether the whole amount is covered by clause (iiid) of section 28 or it also includes the amount which is covered by clause (iiib) of section 28 also. In the circumstances, it shall be in the interest of the justice to restore the issue back to the file of the AO for proper verification. We order accordingly. Thus, the ground of appeal of the assessee is allowed for statistical purposes.
Charging interest u/s. 234A, 234B and 234C - deduction claimed u/s 80HHC - restricted to a lesser amount on account of profit on sale of DEBP by applying the law which was retrospectively amended by the Taxation Laws (Amendment) Act, 2005 - demand was raised against the assessee - AO levied the interest u/s 234A, 234B and 234C - CIT(A) has not allowed the claim of the assessee.
HELD THAT:- We find that the issue is squarely covered by the decision in the case of Eastman Industries Ltd. Vs. DCIT [2007 (7) TMI 338 - ITAT DELHI-B], wherein on the similar facts, the Tribunal by relying on the CBDT Circular No.2 of 2006 has held that AO was not justified in charging interest u/s 234B and 234D as a consequence of reduction in the claim of deduction u/s 80HHC in view of the retrospective amendment of law by the Taxation Laws (Amendment) Act, 2005 with effect from 1.04.1998.
We therefore, allow these grounds of appeals of the assessee and direct the AO not to charge interest in respect of the income which relates to the lesser grant of deduction u/s 80HHC as a consequence to retrospective amendment brought by the Taxation Laws (Amendment) Act, 2005.
Disallowance made by AO from out of expenditure on selling publicity and medical literature - Deleted by CIT(A) following the order of the Tribunal in assessee’s own case for A/Y's 1990-91 and 1991-92.
HELD THAT:- The Ld DR merely relied upon the order of the AO. He could not point out why the order of the Tribunal for AY 1990-91 and 1991-92 should not be followed in the present year of appeal. Hence, we do not find any good and justifiable reason to interfere with the order of CIT(A) which is confirmed and the ground of appeal of the revenue is dismissed.
Disallowance of Garden expenses - assessee is engaged in the business of manufacturing of pharmaceuticals items - In the production, the assessee uses various types of chemicals. In order to control the pollution arising out of chemical process - incurred expenditure for the purpose of maintaining garden in factory premises.
This expenditure has been claimed deduction by the assessee - AO disallowed for the reason that it is not incurred for the process of production - CIT(A) allowed the deduction.
HELD THAT:- In our considered opinion, the manufacturing process of the assessee being such that it involves use of hazardous chemicals which affect the health of the workers. Thus, it is the duty of the assessee to make good the loss caused to nature and to prevent the health of the workers engaged in production. Therefore, the assessee maintained the garden for maintaining better environment in the factory and the expenditure incurred in the process was therefore, for the purposes of the business of the assessee and was rightly allowed by CIT(A). We therefore, confirm the order of CIT(A) and dismiss the ground of appeal of the revenue.
Addition made under transfer pricing u/s.92CA(3) - difference in the Arm’s length price as taken by the assessee and as applied by the AO was less than 5% of the price taken by the assessee is not in doubt or debate. Therefore, CIT(A) following CBDT Circular No.12/2001 has held that the Addition made by AO is not tenable
HELD THAT:- As Ld DR could not point out any error in the order of the CIT(A) which was passed following the CBDT Circular. Thus, we do not find any merit in the ground of appeal of the revenue. Therefore, this ground of appeal of the revenue is dismissed.
Claim of deduction u/s 80HHC - Interest income - head under which such interest income is assessable to tax? - The only contention of the assessee is that as business funds were deployed for earning interest income therefore, interest should be held as assessable under the head business income. As per AO the same is assessable under the head income from other sources -
HELD THAT:- In the instant case, we find that the assessee has brought no material either before any of the lower authorities or before us to show that there was some business exigency necessitating the deployment of funds which resulted in the yield of interest to it. In our considered opinion, in view of the case of Topman Exports (Supra), the above contention of the assessee is not tenable and such interest income is assessable only under the head income from other sources.
As a consequence of it, the assessee cannot claim any deduction u/s 80HHC in respect of such interest income which does not form the part of business income. Therefore, CIT(A) was not justified in allowing netting off of such interest income against interest expenditure and holding that only 90% of the net interest income is to be excluded for the purposes of computing deduction u/s 80HHC. We therefore, set aside the order of CIT (A) on this issue and restore that of the AO. Thus, this ground of appeal of the revenue is allowed.
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2010 (2) TMI 1291 - ITAT CHANDIGARH
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... ... ..... e assessee is claiming exemption u/s 11(1)(a). Hence, the ratio of the judgment is not applicable to the case of the appellant.” 7. The Commissioner of Income-tax (A) has correctly noted that the judgment of the Hon'ble Uttrakhand High Court in the case of M/s Queen’s Educational Society (supra) stands on a different footing in as much as it was a case relating to the provisions of section 10(23)(iiiad) of the Act, whereas the issue in the present case relates to application of income within the meaning of section 11/12 of the Act. 8. The learned D.R. has not pointed out any infirmity in the aforesaid reasoning of the Commissioner of Income-tax (A) in any manner. As a result thereof, in view of the precedent cited above we find no justification to interfere with the order of the Commissioner of Income-tax (A) and accordingly, the same is hereby affirmed. 9. In the result, the appeal of the Revenue is dismissed. Order pronounced in the open court on 26.02.2010.
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2010 (2) TMI 1290 - DELHI HIGH COURT
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... ... ..... the company and is no more in its employment. This certainly could not have been the intention of the legislature. Even the vicarious liability created under Section 138 of Negotiable Instruments Act would not be attracted in respect of a Director or an employee of the Company who resigns and severs his connections with the company, unless the complainant is able to bring his case within the purview of sub-Section 2 of Section 141 of Negotiable Instruments Act, by proving that the offence had been committed with his consent or connivance or was otherwise attributable to any neglect on his part. 14. For the reasons given in the preceding paragraphs, summoning of the petitioner as an accused, in the criminal complaint filed by the respondent against Vijay Remedies Limited, and subsequent proceedings, to the extent they pertain to the petitioner, are, hereby, quashed. Trial Court will, however, proceed with the complaint as far as the Company Vijay Remedies Limited is concerned.
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2010 (2) TMI 1289 - BOMBAY HIGH COURT
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... ... ..... sed have satisfied the tests laid down in the said judgment (supra). 24. The Appellate Court has considered the findings of the Trial Court at close quarters in respect of the discharge of the burden by the complainant as regards the existence of a debt as also the rebuttal of the presumption under Section 139 of the Act by the accused. The learned Senior Counsel, appearing for the complainant, therefore, is not right in contending that the lower Appellate Court has not come to close quarters with the judgment of the Trial Court. Considering the evidence on record, in my view, the findings of the lower Appellate Court on an appreciation of evidence, cannot be said to be perverse or the view taken by the lower Appellate Court cannot be said to be a view which is impossible to be taken on the basis of the material on record. 25. In that view of the matter, there is no merit in the aforesaid appeals, which are accordingly dismissed. The bail bonds of the accused stand cancelled.
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2010 (2) TMI 1288 - BOMBAY HIGH COURT
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... ... ..... ng of the said amount to the accused. 20. The lower Appellate Court on an evaluation and re-appreciation of the evidence has come to a conclusion that the trial Court erred in convicting the accused by merely recording the conclusion without evaluating or weighing the evidence as also without dealing with the circumstances on which the accused relied to establish his defence. The lower Appellate Court in its appellate jurisdiction was entitled to evaluate the evidence and record its findings on the aforesaid aspects. Considering the evidence on record, in my view, the findings of the lower Appellate Court on an appreciation of evidence cannot be said to be perverse or view taken by the lower Appellate Court cannot be said to be a view which is impossible to be taken on the basis of the material on record. 21. In that view of the matter, there is no merit in the aforesaid appeals which are accordingly dismissed. The bail bonds of the accused stand cancelled. Appeals dismissed.
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2010 (2) TMI 1287 - BOMBAY HIGH COURT
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... ... ..... iew taken by the trial court needs to be interfered with and acquittal of respondent/accused will have to be set aside. In the result, accused is held guilty for the offence under Section 138 of the Negotiable Instruments Act. On the point of sentence, it would not be just and proper to insist upon incarceration of accused in jail, but she shall suffer simple imprisonment until rising of the Court and pay fine in the sum of ₹ 60,000/- payable within two months from the date of this order, failing which the amount shall be recovered by learned trial Court by following procedure for recovery of fine. The amount of fine when recovered shall be paid to the complainant as compensation in view of Section 357 (3) Criminal Procedure Code The accused appear before learned Magistrate within two months and surrender herself to the custody of the Court to undergo simple imprisonment till rising of the Court on the date to be fixed by the trial Court. Appeal disposed of accordingly.
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2010 (2) TMI 1286 - CALCUTTA HIGH COURT
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... ... ..... m this point of view, I hold that the instant writ petition is not maintainable in law and I further hold that the mischief committed by the petitioner in 1999 though complained of in 2004 shall come under the purview of the Bengal Medical Act, 1914 in case of the complainant and not under Rule 8.8 of the Regulation of 2002 which is unconstitutional. I also conclude that there is no illegality, violation of the principles of natural justice and want of jurisdiction in the impugned order of the Principal Secretary to the Government of West Bengal, Health and Family Welfare Department which should be interfered with by the Writ Court to prevent any miscarriage of justice and abuse of the process of law. 49. Considering all these aspects I hold that there is no merit in this writ petition which is accordingly dismissed. I make no order as to cost. 50. Let Photostat certified copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities.
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2010 (2) TMI 1285 - DELHI HIGH COURT
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... ... ..... e claims of the decree holder are pending since 1996 and the assets of the company have been done away with. There are no averments whatsoever as to what were the assets of the company and as to when they were transferred. In Saurabh Exports, on the pleadings and evidence recorded, the court had found that the company was only a front for the business of its Directors and it was on such evidence that the decree was passed not only against the company but against the Directors also. In the present case no efforts whatsoever have been made out by the decree holder to even plead that the assets of the Directors against whom the decree is sought to be executed were not in existence prior to the incorporation of the company or that the business through the company was only a front for the business of the said Directors. No case for attaching the properties of the Directors of the judgment debtor is, therefore, made out. There is not merit in the application, the same is dismissed.
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