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2012 (11) TMI 1313 - SUPREME COURT
Illegal gratification - Criminal misconduct - Commission of offences punishable u/s 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 (Act) - Absence of sanction for prosecution - High Court rejected application filed for discharge in the criminal prosecution - HELD THAT:- Adverting to the facts of the present case it has already been noticed that the only allegation against the Appellant is that he had prevailed upon RITES and IRCON to take the four employees in question on "deputation" for the sole purpose of sending them to London in connection with the medical treatment of the Appellant. It is also alleged that neither RITES nor IRCON had any pending business in London and that none of the four persons had not performed any duty pertaining to RITES or IRCON while they were in London; yet the to and fro air fare of all the four persons was paid by the above two Public Sector Undertakings. On the said basis it has been alleged that the accused Appellant had abused his office and caused pecuniary loss to the two Public Sector Undertakings by arranging the visits of the four persons in question to London without any public interest. This, in essence, is the case against the accused-appellant.
It has already been noticed that the Appellant besides working as the Minister of Railways was the Head of the two Public Sector Undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the Appellant in performing certain tasks connected with the discharge of duties as a Minister.
As a Minister it was for the Appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the Rules or Norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the Appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar v. State of Kerala [1962 (12) TMI 96 - SUPREME COURT] while considering the provisions of Section 5 of Act of 1947. If the totality of the materials on record indicate the above position, we do not find any reason to allow the prosecution to continue against the Appellant. Such continuance, in our view, would be an abuse of the process of court and therefore it will be the plain duty of the court to interdict the same.
Thus, we allow this appeal, set aside the judgment and order dated 11.04.2012 of the High Court and the order dated 27.01.2010 of the learned trial court and quash the proceedings registered against the accused-appellant.
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2012 (11) TMI 1312 - GAUHATI HIGH COURT
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... ... ..... Scale Industries Development Corpn. Ltd. (supra), which was followed in Shakti Tubes Ltd. (supra), has observed, in Purbanchal Cables and Conductors Private Limited (supra), have remained no longer res integra and that the 1993 Act would not apply to a contract, which had been entered into before the 1993 Act had come into force, but the supplies were made or payments were made after the 1993 Act had come into force. Realistically and legally speaking, with the help of the doctrine of merger, the decision of the Supreme Court, in Purbanchal Cables and Conductors Private Limited (supra), has to be read, as a whole, and we hold, and we must hold, that to the transactions at hand, the 1993 Act does not apply and the suit, in the present case, was not maintainable. Consequently, the impugned decree cannot be sustained. 49. In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and decree are hereby set aside with cost. Send back the record.
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2012 (11) TMI 1311 - ITAT CHENNAI
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... ... ..... ng authority had insisted at the time of original assessment, the assessee could have produced the original certified copy of the sale deed after obtaining the same from the buyer of the property. Therefore, there is no ground to say that the assessee has not furnished the necessary details. 5. Therefore we find that there was no failure on the part of the assessee to disclose truly and fully the details and particulars necessary for completing the assessment under section 143(3). When there is no such failure on the part of the assessee, there cannot be an income-escaping assessment under section 147 after the expiry of a period of four years. Therefore, we have to hold that the impugned assessment is barred by limitation. 6. Accordingly, the impugned assessment is set aside and as such the order of the Commissioner of Incometax( Appeals) is vacated. 7. In result, the appeal filed by the assessee is allowed. Orders pronounced on Monday, the 26th of November, 2012 at Chennai.
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2012 (11) TMI 1310 - ITAT CHENNAI
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... ... ..... harges are also to be excluded from the total turnover in view of Special Bench decision of this Tribunal in the case of ITO v. Sak Soft Ltd. 313 ITR (AT) 535 . The Departmental Representative relied on grounds of appeal. 20. We have heard the parties. We are not in agreement with the argument of the Counsel for the Assessee that no part of telecommunication charges are to be excluded from export turnover for the purpose of allowing relief under sec.10A of the Act. However, we agree with the alternative submission of the Counsel for the Assessee that in view of the Special Bench decision in the case of Sak Soft Ltd. (supra), the telecommunication charges are to be excluded from the export turnover as well as total turnover for the purpose of alllowing relief under sec.10A of the I.T. Act. 21. In the result, the appeals filed by the Revenue are dismissed and the Cos filed by the assessee are partly allowed. 22. Order pronounced on Friday, the 30th of November 2012, at Chennai.
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2012 (11) TMI 1308 - DELHI HIGH COURT
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... ... ..... ons for distributing the decretal amount which would be deposited in this Court on the present judgment becoming final to the respective publications which are the subject matter of Ex. P66 to Ex. P79 and Ex. P84 to Ex. P89. I may state that counsel for the plaintiff has no objection to appointment of Mr. Prasouk Jain, Advocate as a Receiver in this case although he is associated with Mr. B.V. Niren, counsel appearing for UOI. Fees of the Receiver are fixed at ₹ 1 lakh for the work to be done by him under the present judgment including taking all necessary steps and also communicating with the different publications for payment of their respective dues. The Receiver will be entitled to all out of pocket miscellaneous expenses in addition to his fees. Also, if so requested by the plaintiff, the Receiver can after payment of the dues of the publications correspond with the INS on behalf of the plaintiff. The suit is decreed and disposed of with the aforesaid observations.
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2012 (11) TMI 1307 - ITAT MUMBAI
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... ... ..... e employees. 10. In the case on hand, tax is payable on medical advance and in certain cases tax has been paid. Only where bills have been produced by the employee to the employer it was a case of reimbursement and to the extent of the benefit given in 17(2) proviso (v) the employee need not pay tax. This is not a case where the attribution of personal benefits directly to an employee poses of problem or a case where it is not feasible to tax the benefit in question in the hands of the employee. It is only a case where a benefit above a certain specified amount only is liable to be taxed in the hands of the employee. Such case, in our humble opinion, does not constitute fringe benefit in section 115WB of the Act…..” Respectfully following the above referred judgment of the coordinating bench we decide the Ground no.2 in favour of the assessee-company. As a result appeal filed for AY 2007-08 stands allowed. Order pronounced in the open court on 16th November, 2012
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2012 (11) TMI 1306 - KARNATAKA HIGH COURT
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... ... ..... nished. Therefore, the respondent is entitled to reopen the assessment. 8. With regard to correctness of the details of the receipts from trading and manufacturing, it becomes just and necessary to probe into accounts to bifurcate the income from trading and manufacturing to ascertain the expenses to be allocated in order to appreciate to what extent the assessee would be entitled for deduction under Clause 3 of Sub-section 2 of S.80IA of the Act. 9. It is the contention of the assessee that the exemption given initially in the first year is accepted and the same should be continued for further years is a question left open to be canvassed before the Assessing Officer. The question whether making of water filter amounts to industrial and manufacturing activity is also kept open for consideration. In that view of the matter, the order of the Tribunal is upheld. The Assessing Officer shall take note of the observations made above while making assessment and granting deductions.
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2012 (11) TMI 1305 - ITAT BANGALORE
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... ... ..... ed the payments and has certified that the payments have been made by deposits into the bank account of the payees and therefore, no further verification is required. 11. Having heard both the parties and having considered the rival contentions, we find that the assessee’s claim of payments exceeding ₹ 20,000/-being made by direct deposits into the bank account of the suppliers would be proved only after verification of the additional evidence which has been filed before us. As these evidences are very essential for adjudication of the issue, we deem it fit and proper to remand the same to the file of the AO only for the purpose for verification of the fact as to whether the payments are made by way of direct deposits into the bank accounts of the recipients and if it is found to be so, then no disallowance is called for. 12. In the result, the revenue’s appeal is allowed for statistical purposes. Order pronounced in the open court on the 2nd November, 2012.
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2012 (11) TMI 1304 - MADRAS HIGH COURT
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... ... ..... ect the Revenue's appeal in T.C.(A). No. 1366/2008, thereby, the order of the Income Tax Appellate Tribunal is confirmed. 9. Consequent on the order passed by the Commissioner, the Assessing Officer proceeded in giving effect to the order of the Commissioner of Income Tax (Appeals) under Section 263 of the Act and held that the assessee was not entitled to deduction under Section 80IB(10) of the Act. Aggrieved by that, the assessee went on appeal before the Commissioner of Income Tax (Appeals) and further appeal before the Income Tax Appellate Tribunal, which allowed the assessee's appeal based on the earlier order, which is the subject matter of consideration in T.C. (A). No.1366/2008. 10. In the light of the order passed in T.C.(A). 1366/2008, it is not necessary for us to consider the same question again in T.C. (A). 889/2009. In the circumstances, the question does not arise for consideration by us in T.C.889/2009. Accordingly, the same stands dismissed. No costs.
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2012 (11) TMI 1303 - KARNATAKA HIGH COURT
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... ... ..... within 15 days of receipt of the summons from the Court, along with the copy of the complaint under S.138 of the Act, cannot contend that there was no service of notice as required under S.138 of the Act, by ignoring the statutory presumption to the contrary under S.27 of the General Clauses Act. The ratio of law with regard to question of service of notice, laid down in the cases of Madan & Co. and C.C. Alavi Haji (supra), squarely applies to the instant case. Hence, the only contention urged for the accused by his learned counsel being devoid of merit, thus, stands negated. In the result, the petition is dismissed. The amount, if any, in deposit, be released in favour of the complainant. The accused is granted time till 31st December 2012, to deposit the balance compensation amount, in the Trial Court. In case of default, the bail bond and surety furnished by the accused shall stand cancelled and the accused shall surrender before the Trial Court to serve out sentence.
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2012 (11) TMI 1302 - KARNATAKA HIGH COURT
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... ... ..... e order of the Tribunal and remanded the matters to the Assessing Officer for fresh assessment. Even in this case also, similar questions of law arise. Hence, the order of the Tribunal is set aside and the matter is remanded to the Assessing Officer for fresh consideration in accordance with law. Accordingly, the appeal is allowed.
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2012 (11) TMI 1301 - ITAT BANGALORE
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... ... ..... sue and for the reasons recorded therein, confirmed the disallowance made by the AO. As the issue raised by the Revenue is similar and identical, our findings recorded (in para 17.2. above) holds good here too. It is ordered accordingly. In essence, this ground of the Revenue is allowed. 24. The last ground relates to (Ground No.8) customs duty on machinery. This issue has been dealt with by us in the asssessee’s appeal (supra). Our findings recorded therein hold good here also. It is ordered accordingly. In essence, this issue is decided in favour of the Revenue. 25. In the result (i) the assessee’s appeal for the AYs 2006-07 and 2007-08 are partly allowed for statistical purpose; (ii) The Revenue’s appeals for the AY 2006-07 ITA Nos.1269/B/10 & 141/B/11 - two appeals are partly allowed for statistical purpose & (iii) The Revenue’s appeal for the AY 2007-08 is partly allowed. The order pronounced on the 30th day of November, 2012 at Bangalore.
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2012 (11) TMI 1300 - ITAT AHMEDABAD
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... ... ..... imating 1% of suppressed yield for making addition.” 5. Having heard the submissions of both the sides, we are of the conscientious view that the AO has not followed the directions of the Tribunal as given by order dated 18/02/2010 (supra). The direction of the Tribunal was that the AO shall confront the comparable cases choosing by him to the assessee before adopting the GP rate at 5.20%. On this aspect, the matter was restored back to the file of the AO for deciding the issue relating to application of GP rate. The AO was therefore expected to re-assessee the income as per the directions of the Tribunal and to proceed with the assessment within those four corners. By adopting “yield method” which was apparently not the direction of the Tribunal, the AO had exceeded its jurisdiction, therefore we hereby hold that ld.CIT(A) has rightly held so. Resultantly, we hereby dismiss this ground of the Revenue. 6. As a result, Revenue’s appeal stands dismissed.
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2012 (11) TMI 1299 - ITAT DELHI
Deduction for Employment of New Employees u/s 80JJAA - Reopening of Assessment u/s 147 - A revised return was filed by assessee company where claim of deduction u/s 80JJAA was made and was duly allowed by AO. Matter was reopened after 4 years where the assessee was informed that during the previous year regular workmen totaling 53 were employed by it and since the number of regular workmen employed during the previous year was less than 10% of the existing number of workmen, no deduction was allowable in respect of additional wages paid to regular workmen u/s 80JJAA.
HELD THAT:- Reopening after four years is legal if the assessee had not provided all material facts along with return of income and or during assessment proceedings. Assessee, through audit report had tried to mislead the department by showing number of new regular workmen at 53. Reopening of assessment u/s 147 allowed.
Decision against assessee.
Decision in the case of HONDA SIEL POWER PRODUCTS LIMITED VERSUS DEPUTY COMMISSIONER OF INCOME-TAX [2011 (2) TMI 1184 - DELHI HIGH COURT], relied upon
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2012 (11) TMI 1298 - SUPREME COURT
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... ... ..... t on 8.10.2012 in Writ Petition No.6361 of 2012 as well as the order passed by the Division Bench of the High Court on 12.10.2012 in Letters Patent Appeal No.695 of 2012 also would stand set aside. Recommendation made by Opposition Board is now available with the parties, hence we direct the Controller to dispose of the matter afresh after hearing all the parties and also affording them an opportunity to raise their contentions for and against the recommendation of the Opposition Board. The Controller would dispose of the matter within a period of one month from the date of communication of copy of this order. Since the matter is remitted to the Controller, the Writ Petition No.6361 of 2012, pending before the Delhi High Court also stands disposed of. The Civil Appeal is disposed of as above with no order as to costs. We make it clear that we are not expressing any opinion on the various contentions raised by the parties before us and are left to be decided by the Controller.
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2012 (11) TMI 1297 - ITAT CHENNAI
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... ... ..... f the Act, a shareholder has not only to be a beneficial shareholder but also a registered shareholder. Here, the assessee was not a shareholder at all in M/s GB Engineering Enterprises Private Ltd. As for the decision in the case of National Travel Services (supra) of Delhi High Court, relied on by the CIT(Appeals), there the assessee was a partnership firm and the shares of the company, which had given the loan, were held by its partners for and on behalf of such firm. On the other hand, here the assessee is not at all a partnership firm and therefore, in our opinion, the decision of Hon’ble Delhi High Court in the case of National Travel Services (supra) has no application. We are, therefore, of the opinion that the addition made in the hands of the assessee under Section 2(22)(e) cannot stand. Such addition is deleted. 7. In the result, appeal filed by the assessee is allowed. The order was pronounced in the Court on Wednesday, the 7th of November, 2012, at Chennai.
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2012 (11) TMI 1296 - KERALA HIGH COURT
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... ... ..... respondents. 2. The only request made before me was that the petitioners be given two months time to settle the whole liability. 3. Having regard to the extent of the liability and also the fact that the debt is fully secured, I direct that the recovery proceedings initiated against the petitioners be kept in abeyance for two months from today. It is clarified that in the event, the liability is not settled within the time allowed, the respondents will be free to continue the recovery action. Writ petition is disposed of as above.
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2012 (11) TMI 1295 - KERALA HIGH COURT
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... ... ..... of the first respondent. It is challenging the proceedings the writ petition is filed. 2. As already stated, the petitioners have guaranteed the loan availed of by the company, of which they are Directors. Company had committed default and in such circumstances, the first respondent is entitled to recover its dues from the petitioners. Admittedly, the first respondent is also an institution notified under Section 71 of the Revenue Recovery Act. In such a situation revenue recovery proceedings initiated against the petitioners cannot be interfered with. 3. However, it is a fact that the company and the Managing Directors have mortgaged movable properties. In such circumstances, I direct that the movable properties belonging to the petitioners shall be excluded from the recovery proceedings and will be proceeded against only if the sale proceeds of the other properties available is insufficient to satisfy the dues of the first respondent. Writ Petition is disposed of as above.
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2012 (11) TMI 1294 - KERALA HIGH COURT
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... ... ..... writ petition is filed. 2. A similar case filed by another guarantor of the loan has been disposed of by this Court judgment in Writ Petition No.27300 of 2012. In that judgment, this Court directed that the proceedings initiated against the movable assets of the guarantor, be kept in abeyance and will be proceeded against only if the other assets are insufficient to recover the dues. Therefore, this writ petition is also disposed of clarifying that the petitioners herein will also be entitled to the benefit of the directions of the judgment in W.P.(c) No.27300 of 2012. Writ petition is disposed of as above.
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2012 (11) TMI 1293 - MADRAS HIGH COURT
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... ... ..... g the application No.3953 of 2012 the appellant has also conceded that the said item is available for partition. In view of the above a decree on admission could be passed with respect to Ambattur Estate property in the suit filed by the appellant in C.S.No.469 of 2008. No contentious issue required to be decided for partitioning the property, which is sought to be included by way of this application in the schedule to C.S.No.469 of 2008. Therefore, it is in the interest of all the parties, to include the Additional item and to pass a decree in respect of Ambattur Estate property at the earliest. We are, therefore, of the view that the appellant has made out a case for amending the schedule. Conclusion 26. In the result, the order and decreetal order dated 13 September 2012 in Application No.3953 of 2012 are set aside. Consequently, Application No.3953 of 2012 is allowed. 27. In the upshot, we allow the Original Side Appeal. Consequently, the connected MP is closed. No costs.
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