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Showing 81 to 100 of 1047 Records
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2011 (4) TMI 1472 - ITAT MUMBAI
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... ... ..... d and is in further appeal before us. 9. Having heard the rival contentions and having perused the material on record, we see no reason to interfere with the well reasoned order of the CIT(A). We have also noted that there is no material whatsoever save and except the admission made by the partner in assessee-firm, which is clearly of general nature and which is in any event not binding on the assessee. It is well settled law that addition cannot be made solely on the basis of statement recorded during the course of survey proceedings as has also been held by Hon’ble Kerala High court in the case of Paul Mathews & Sons v CIT (263 ITR 101). Keeping in mind these discussions, as also the totality of the facts and circumstances of the case, we approve the conclusions arrived at by the CIT (A) and decline to interfere. 10. Ground Nos.III & IV are dismissed. 11. In the result, appeal is dismissed. Pronounced in the open court at the time of hearing i.e. on 28.4.2011
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2011 (4) TMI 1471 - SUPREME COURT
Whether after furnishing `no-claim certificates' and the receipt of payment of final bill, any arbitrable dispute between the parties survived or the contract stood discharged - the agreement between the parties made an integral part of the contract. Condition 70 provided mode for resolution of disputes and differences between the parties through arbitration. HELD THAT:- The present, in our opinion, appears to be a case falling in the category of exception noted in the case of Boghara Polyfab - 2008 (9) TMI 864 - Supreme Court. As to financial duress or coercion, nothing of this kind is established prima facie. Mere allegation that no-claim certificates have been obtained under financial duress and coercion, without there being anything more to suggest that, does not lead to an arbitrable dispute. The certificates leave no manner of doubt that upon receipt of the payment, there has been full and final settlement of the contractor's claim under the contract. That the payment of final bill was made to the contractor is not in dispute. After receipt of the payment, no grievance was raised or lodged by the contractor immediately. The concerned authority, thereafter, released the bank guarantee. It was then that on that day itself, the contractor lodged further claims. The conduct of the contractor clearly shows that `no claim certificates' were given by it voluntarily; the contractor accepted the amount voluntarily and the contract was discharged voluntarily.
The appeal is, accordingly, allowed. The impugned order passed by the Chief Justice of the High Court of Punjab and Haryana is set aside. The parties shall bear their own costs.
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2011 (4) TMI 1470 - SUPREME COURT
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... ... ..... ntinuing offence, on some occasion all had taken part and on other occasion one of the accused, namely, husband had taken part, therefore, undoubtedly clause (c) of Section 178 of the Code is clearly attracted. 12) In view of the above discussion and conclusion, the impugned order of the High Court holding that the proceedings at Gaya are not maintainable due to lack of jurisdiction cannot be sustained. The impugned order of the High Court dated 19.03.2010 in Criminal Misc. No. 42478 of 2009 and another order dated 29.04.2010 in Criminal Misc. Case No. 45153 of 2009 are set aside. In view of the same, the SDJM, Gaya is permitted to proceed with the criminal proceedings in trial Nos. 1551 of 2008 and 1224 of 2009 and decide the same in accordance with law. It is made clear that we have not expressed anything on the merits and claims of both parties and our above conclusion is confined to the territorial jurisdiction of the Court at Gaya. Both the criminal appeals are allowed.
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2011 (4) TMI 1469 - ITAT PUNE
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... ... ..... n account of ‘royalties’ and ‘fees for technical services’, on the facts of this case and under the Indian IT Act, will be 20 percent on gross basis, That aspect of the matter is, however, academic since we have already held that, on the facts of this case, source country does not have the right to tax income in question, except under art. 12(2) of the tax treaty and at a rate not exceeding 10 per cent. The assessee has already accepted tax liability to that extent, and there is no dispute so far as taxability under art. 12(2) is concerned.” 11. Considering the above, the issue raised by the assessee in Ground No 2 is covered in favour of the assessee and the taxation on gross basis at higher rate of 20 under section 115A read with 44D of the Act are unwarranted and taxation is ought to be at 10 on gross basis under Article 12(2) of the Tax Treaty as offered in the return of income. Accordingly, Ground No. 2 is allowed. 12. In the result, appeal
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2011 (4) TMI 1468 - MADRAS HIGH COURT
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... ... ..... 2 lakhs already deposited before the trial Court and the accused is hereby directed to deposit the balance amount of ₹ 2,85,000/- within two months from today, failing which, she shall undergo one month simple imprisonment. 24. In the result (a) The conviction and sentence passed by the first appellate Court under Section 138 of the Negotiable Instruments Act, are confirmed. (b) Since the accused is on bail, the trial Court is directed to take steps to secure her custody to undergo the remaining period of sentence, if any. (c) The complainant shall withdraw ₹ 2 lakhs already deposited before trial Court. (d) The accused is hereby directed to deposit the balance amount of ₹ 2,85,000/- within two months from today, failing which, she shall undergo one month simple imprisonment. (e) On such deposit of ₹ 2,85,000/- by the accused, the complainant is also permitted to withdraw the same. (f) Both the Crl.R.Cs. are accordingly dismissed. Crl.M.P. is closed.
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2011 (4) TMI 1467 - SUPREME COURT
Arbitration Proceedings - Delay in execution of the work - termination of contract - liability to pay liquidated damages - the Respondents awarded the work of "extension of terminal building" at Guwahati airport to the Appellant. As per the contract, the date of commencement of work and the period of completion of the work was 21 months, to be completed in different stages. As the Appellant (`contractor') did not complete the first phase of the work within the stipulated time, the Respondents terminated the contract. The termination was challenged by the Appellant in a writ petition filed before the Guwahati HC. the HC set aside the termination and directed the Respondents to grant time to the Appellant till the end of January for completion of the first phase reserving liberty to the Appellant to apply for further extension of time. As the work was not completed, the Respondents granted an extension, without levying any liquidated damages. The contractor proceeded with the work even thereafter. However, as the progress was slow, the Respondents terminated the contract again on the ground of non-completion even after 35 months. The Appellant filed a writ petition, challenging the cancellation. The High Court referred the parties to arbitration. In pursuance of it, on a request by the Appellant, the Respondents appointed the arbitrator. the Appellant filed its statement of claims. the Respondents their reply and also filed their four counter claims before the arbitrator. the Arbitrator awarded a sum with interest and costs in favor of the Appellant and rejected the counter claims of the Respondents. this petition is filed by Respondents.
HELD THAT:- The arbitrator has examined the said issue and has recorded a categorical finding that the Respondents were responsible for the delay in execution of the work and the contractor was not responsible. The arbitrator also found that the Respondents were in breach and the termination of contract was illegal. Therefore, the Respondents were not entitled to levy liquidated damages nor entitled to claim from the contractor the extra cost (including any escalation in regard to such extra cost) in getting the work completed through an alternative agency. In view of the finding of the arbitrator that the Appellant was not responsible for the delay and that the Respondents were responsible for the delay, the question of Respondents levying liquidated damages or claiming the excess cost in getting the work completed as damages, does not arise. Once it is held that the contractor was not responsible for the delay and the delay occurred only on account of the omissions and commissions on the part of the Respondents, it follows that provisions which make the decision of the Superintending Engineer or the Engineer-in-Charge final and conclusive, will be irrelevant. Therefore, the Arbitrator would have jurisdiction to try and decide all the claims of the contractor as also the claims of the Respondents. Consequently, the award of the Arbitrator on items 1, 3 and 11 has to be upheld and the conclusion of the High Court that award in respect of those claims had to be set aside as they related to excepted matters, cannot be sustained.
No part of the decision of the High Court is sustainable. The appeal is therefore allowed, the impugned order of the High Court is set aside and the order of the District Court is restored.
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2011 (4) TMI 1466 - SC ORDER
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... ... ..... nce similar issues are involved, we consider it appropriate to have this matter heard along with the said matter. Appeal admitted. Hearing expedited. The matter be tagged along with C.A. No. D27269/2009.
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2011 (4) TMI 1465 - GUJARAT HIGH COURT
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... ... ..... under Government Circular dated 7th March 2009 and the prevailing policy; b Till such time it is done, there shall be no recovery of tax already availed of, for the period between 26th March 2009 the date on which the application was made till such exemption was enjoyed; c Such period of the exemption mentioned above in sub-para (b) will be governed by the final decision of the Government on the application of the petitioner for exemption; d In any case, there shall be no recovery of exempted tax pertaining to the period between 31.3.2008 to 26th March 2009; e Till the Government decides the application afresh; as directed above, the petitioner shall not be entitled to any tax exemptions. However, the same shall be governed by the final decision of the Government. 15. Fresh consideration may be concluded within two months from the date of receipt of copy of this Order; subject of course to petitioner's cooperation. 16. With the above directions, petition is disposed of.
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2011 (4) TMI 1464 - SUPREME COURT
Whether the Notification issued by state making any declaration can take away the accrued rights of the Appellant - In Present case, the appellant had joined as a member of the Commission vide order dated 29.6.2006 under the Act 1993. The State of U.P. issued Notification dated 28.5.2008 to the effect that appellant ceased to hold the office as a Member of the Commission. The appellant challenged the said Notification by filing Writ Petition mainly on the grounds that he had been appointed for a tenure of five years and that period could not be curtailed. The High Court dismissed the writ petition. Hence, this appeal.
HELD THAT:- A Constitution Bench of this Court in Chairman, Railway Board & Ors. v. C.R.Rangadhamaiah & Ors [1997 (7) TMI 662 - SUPREME COURT] observed the expressions - “vested rights” or “accrued rights” have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution.” Therefore, we do not have any hesitation to declare that the Notification dated 28.5.2008 is patently illegal.
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2011 (4) TMI 1463 - ITAT MUMBAI
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... ... ..... e issue should be set aside to the file of the AO for fresh adjudication in terms of the directions of the Hon’ble Bombay High Court vide its order dated 30th June, 2010. The AO is directed to determine the surplus, after giving adequate opportunity to the assessee and also to provide, reasonable period to the assessee for compliance of monitoring conditions. The AO in his order dated 19-01-2011, has not followed the directions of the jurisdictional High Court, wherein the AO was directed to grant reasonable time to fulfill the condition that the assessee must apply 75 of the total income for educational purposes in India. In view of our above observations, we direct the AO to pass denovo orders in accordance with law and in accordance with the directions given by the jurisdictional High Court after giving adequate opportunity to the assessee. 7. In the result, all the three appeals are allowed for statistical purposes. Order pronounced on this 27th day of April, 2011.
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2011 (4) TMI 1462 - HIGH COURT OF GUJARAT
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... ... ..... s are not covered by the definition of 'money -lenders', and thus, the State Government or its Authorities have no jurisdiction to take any regulatory measure or penal measures under the Bombay Money -Lenders Act, 1946. In view of the aforesaid finding recorded above, while no case is made out to interfere with the common judgment dated 13th January 2010 passed by the learned Single Judge in Special Civil Application No.13163 of 2008 and analogous cases as challenged in some of the Letters Patent Appeals and Special Civil Applications, learned Single Judge in the other case ought not to have referred the matter to the Registrar to decide the representation. Such order of learned Single Judge dated 14th December 2009 in Special Civil Application No.13024 of 2009 is set aside. The Letters Patent Appeals and connected Civil Application stand disposed of with the aforesaid observations. Interim relief stands vacated. Notice discharged. No costs. (APK) (Notice discharged)
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2011 (4) TMI 1461 - KARNATAKA HIGH COURT
CENVAT credit - distribution of Service tax credit made in one unit and availed of in another unit - Held that: - the assessee was dealing with the very same product - the assessee is entitled to distribute the cenvat credit on the input services on its manufacturing unit or other units providing the output services - appeal dismissed - decided against Revenue.
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2011 (4) TMI 1460 - ITAT CHENNAI
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... ... ..... Officer did not believe in the absence of supporting evidence. He has treated the entire amount in assessee’s hands. But the ld. CIT(A) has reduced the addition to ₹ 10,610/- by accepting the above explanation. In our opinion, the finding of the ld. CIT(A) is quite balancing and justifiable. We do not find any infirmity in the same and dismiss this limb of the issue taken by the assessee. 69. In the result, the appeal of the Revenue is dismissed and the cross objection of the assessee is partly allowed. 68. To summarize the result, I.T.A.No.1483/Mds/08 - Partly allowed for statistical purposes C.O.No. 14/Mds/09 - Partly allowed for statistical purposes I.T.A.No. 1484/Mds/08 - Dismissed C.O.No.15/Mds/09 - Allowed for statistical purposes I.T.A.No. 1485/Mds/08 - Dismissed C.O.No.23/Mds/09 - Partly allowed I.T.A.No.1293& 1294/Mds/09 - Dismissed I.T.A.No. 1482/Mds/08 - Dismissed C.O.No.13/Mds/09 - Partly allowed. The order pronounced in the open court on 18.4.11.
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2011 (4) TMI 1459 - ITAT KOLKATA
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... ... ..... ion holding that the court or the Tribunal has jurisdiction, other questions relating to the merits of the case arise for decision, otherwise not. The Tribunal has power to take additional evidence. After taking the evidence which is considered necessary, the said point regarding lack of jurisdiction can well be decided by the Tribunal. As such, it is neither necessary nor expedient for this court to decide the remaining questions. The case deserves to be sent back to the learned Tribunal for first deciding the said point regarding the lack of jurisdiction.” In view of the above settled legal position, we are of the view that the CIT(A) should have decided the jurisdictional issue first by passing a speaking order, in view of this, we set aside this legal aspect to the file of the CIT(A) for fresh adjudication. Apart from legal issue, the CIT(A) also decide the issues on merits, if required. 6. In the result, assessee’s appeal is allowed for statistical purposes.
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2011 (4) TMI 1458 - ITAT CHANDIGARH
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... ... ..... case of the assessee afresh and pass a suitable order in this regard in conformity with law. Ground No. 2 is treated as allowed for statistical purposes. 4. Apropos ground No. 3 the impugned addition was made by the AO after the assessee had agreed the same to the addition. On appeal, the ld. CIT(A) confirmed the action of the AO. At the time of hearing before us, the Authorized Representative for the assessee was specifically asked as to whether the impugned addition was agreed before the AO. He submitted that it was agreed by the Ld. Counsel for the assessee that the assessee was not appearance before the AO. Additions agreed to by the Ld. Counsel for the assessee are as good as addition agreed to by the assessee. Besides the assessee has placed no material to rebut the finding recorded by the AO in the assessment order in this behalf. In this view of the matter, ground no. 3 is dismissed. 5. Appeal filed by the assessee is partly allowed. Order pronounced on April, 2011.
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2011 (4) TMI 1457 - ITAT MUMBAI
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... ... ..... en letter to M/s. Raj Kiran Sand Dealers. The fact is that the assessee has not purchased any material from that concern and had only purchased material from one M/s. Kiran Sand Dealers. When the amounts of actual purchases were lesser, the Assessing Officer committed blunder in taking the figures at a much higher. For all these reasons, we uphold the order of the Commissioner (Appeals) and dismiss the ground of appeal raised by the Revenue. 5. Now, coming the second ground which relates to disallowance of lorry diesel expenses being deleted by the Assessing Officer, we find that the Commissioner (Appeals) has taken statistics of three years and come to the conclusion that the percentage of lorry diesel expenses to the turnover remained within the range of 4 and 5 . We find no infirmity in the findings of the Commissioner (Appeals). Consequently, Revenue fails on this ground. 6. In the result, Revenue’s appeal dismissed. Order pronounced in the open Court on 27.4.2011.
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2011 (4) TMI 1456 - ITAT CHENNAI
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... ... ..... onsideration will have to be set off against the profit of these units as and when there is profit from such ;units and the assessee claimed deduction u/s 80IA . In case of one unit there is profit during the year but after adjusting carry forward loss, the resultant figure is the loss and the assessee has not claimed deduction u/s 80IA in respect of this unit……..” 6. As for the reliance placed by the Revenue on the decision of the coordinate Bench in the case of Chettinadu Cement Corporation Ltd. cited supra, we are of the opinion that this has now become irrelevant, in view of the decision of Hon’ble jurisdictional High Court in the case of Thiagarajar Mills Ltd. (supra). Thus, we are of the opinion that assessee’s windmills were eligible for claiming deduction under sec. 80IA of the Act and that too, considering each windmill separately. 7. In the result, assessee’s appeal stands allowed. Order pronounced in open Court on 21- 04-2011.
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2011 (4) TMI 1455 - ITAT INDORE
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... ... ..... ctual cost u/s 43(1) for the purpose of calculation of depreciation. Respectfully following the proposition of law as laid down by the Hon'ble Supreme Court and thereafter by various Courts, as narrated above, we do not find any merit in the action of the lower authorities for reducing the amount of Government grant from the actual cost of plant and machinery and building for the purpose of allowing assessee’s claim for depreciation. Accordingly, we reverse the order of lower authorities and decide the issue in favour of the assessee. 10. As we have already decided the assessee’s ground with regard to claim of depreciation in its favour, the ground no.3 raised with regard to registration u/s 12A/12AA has become academic. We, therefore, do not think it appropriate to deal with the same. 11. In the result, the appeal of the assessee in all the years are allowed in terms indicated hereinabove. This order has been pronounced in the open court on 26th April, 2011.
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2011 (4) TMI 1454 - HIGH COURT OF GUJARAT
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... ... ..... ous Application of the assessee and recalled its previous order which was the point in question in favour of the revenue. We further find that in the meantime, the assessee had approached the CIT (Appeals) and urged to decide this very issue which was previously left undecided though raised. Such application was entertained and allowed. In that view of the matter, what today's stand is that the CIT (Appeals) rectified the order without expressing any opinion on merits to challenge such orders, we are not inclined to interfere with the order passed by the Tribunal. The Tax Appeal is, therefore, dismissed.
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2011 (4) TMI 1453 - KARNATAKA HIGH COURT
Penalty - demand with interest paid before issuance of SCN - wrongful availment of CENVAT credit - Held that: - in the facts of this particular case that the Appellate Authorities committed no error in giving the benefit of waiver of penalty when the assessee had paid the duty and interest even before issue of show cause notice when the error was pointed out during the audit - decided against Revenue.
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