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Showing 41 to 60 of 545 Records
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2012 (2) TMI 690
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... ... ..... e by quashing the impugned notice dated 30th March 2009 (Exhibit 'J'). There shall be no order as to costs.” 14. It is well settled that the validity of a re-opening of assessment is to be tested on the basis of reasons recorded by the Assessing Officer prior to the issue of notice under section 148, and no additions can be made to such reasons. The first appellate authority was in error in doing so. The reopening is beyond four years and there is no allegation in the reasons recorded that there is failure on the part of the as to disclose fully and truly all material facts and as there is a change of opinion, he concluded that the re-opening has to be held as bad-in-law. 15. As we have upheld the contentions of the assessee that the re-opening is bad-in-law, we do not require adjudication of other issues on merit, as it would be an academic exercise. 16. In the result, assessee’s appeal is allowed. Order pronounced in the open Court on 10th February 2012.
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2012 (2) TMI 689
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... ... ..... he case of CIT vs. Ratnagiri District Central Co-operative Bank Ltd. (254 ITR 697) (Bom) further supports the case of the assessee. Exemption of interest income will be available only if it has arisen in the course of business of banking and not otherwise as was held by the Hon'ble Andhra Pradesh High Court in the case of A.P. Cooperative Central Land Mortgage Bank Ltd. vs. CIT (100 ITR 472). In view of these facts and the judicial pronouncements discussed hereinabove and especially when no contrary decision was brought to our notice by either side and also the ld. Representatives from both sides consented that the facts are identical to assessment year 2007- 08, therefore, by following the aforesaid decision, we affirm the stand of learned Commissioner of Income Tax (Appeals). Finally, the appeal of the Revenue is dismissed. Order was pronounced in the open Court in the presence of learned representatives from both the sides at the conclusion of the hearing on 21.2.2012.
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2012 (2) TMI 688
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... ... ..... ntions raised by the assessee have not been duly considered by AO. The observations about the assessee’s convertible debentures/ warrants because of the lock in period becoming capital asset has also not been substantiated in a justified manner. In the entirety of facts and circumstances, we are inclined to set aside the issue back to the file of AO to consider the same afresh after giving the assessee an opportunity of being heard and keeping in mind the Bombay High Court judgment (supra). 5.1. Apropos ground no. 2, in our view on this issue also lower authorities have not considered the assessee’s claim u/s 36(1)(iii). Besides, setting aside the above issue will have a material bearing on the issue about 14A. In view thereof, we are inclined to set aside this issue also back to the file of AO for decision afresh in accordance with law. 6. In the result, assessee’s appeal stands allowed for statistical purposes. Order pronounced in open court on 13-02-2012.
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2012 (2) TMI 687
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... ... ..... tative for the assessee was trying to rely upon the Budget Speech and other Acts like the Companies Act and the decisions rendered by the various High Courts in different contexts to drive his point, in our opinion, his exercise is merely an academic one and does not improve his case before us. On the other hand, we are of the view that the Commissioner of Income-tax (Appeals) has written a detailed order after considering all the submissions and case laws extracted as above, and we do not find any infirmity in the impugned order. As such, though we appreciate the effort of the learned representative for the assessee to bring home his point, we are unable to accept his contentions to reverse the impugned order, which is reasoned one with which we are in agreement. Hence, we confirm the order of the Commissioner of Income-tax (Appeals) and dismiss the assessee's appeal. 10. In the result, the assessee's appeal is dismissed. Order pronounced in open court on 24.02.2012.
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2012 (2) TMI 686
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... ... ..... same. The Ld CIT(A) has followed the decision of Third Member of the Patna Bench of the Tribunal in the case of Shri. D.N. Kamani (70 ITD 77 (Pat)(TM ) where addition on “on-money” on sale of flats based on presumption was deleted. The Hon’ble Bombay High Court in the case of CIT Vs. M.K.E. Menon (2001) 248 ITR 310 (Bom) cited before the Ld CIT(A), has been pleased to explain the provisions of block assessment and regular assessment and has concluded that the provisions of block assessment are separate and different from regular assessment and the A.O must not make roving enquiries while making block assessment but only consider the documents and material found in the course of search action. Under these circumstances, we do not find reason to interfere with the first appellate order on this issue. The same is upheld. The ground No. 6 is accordingly rejected. 13. In result, appeal is dismissed. The order is pronounced in the open Court on 13th February 2012.
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2012 (2) TMI 685
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... ... ..... covered by judgment dated 19th/20th January, 2012, of another Division Bench of this Court (Dr.D. Y. Chandrachud and A.A. Sayed, JJ.) in Writ Petition No.1456 of 2010 and cognate petitions. 3. Following the aforesaid decision, this petition is also dismissed. 4. At this stage, learned counsel for the petitioner, submits that the service tax payable by the petitioner will be paid by the petitioner under protest and without prejudice to their rights and contentions in the special leave petition which the petitioner will be filing for challenging this decision.
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2012 (2) TMI 684
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... ... ..... winding up company, the same are to be distributed paripassu towards satisfaction of liabilities as existed at the commencement of the winding up proceedings. It is not the case whether the assets of the winding up company have been sold and the liabilities as existed at the commencement of winding up proceedings are being distributed. On the other hand, it is the income which has been earned on the fixed deposits and on which the statutory liability of payment of TDS has arisen and for non-compliance of the statutory provision by the appellant bank on account of non-deduction of TDS on the interest credited/paid, the proceedings have been initiated to recover the tax due from the appellant bank. 11. In view of above, we do not find any infirmity in the order of the Ld. CIT(A). Hence, we uphold his order and reject the ground of appeal taken by the appellant bank. 12. In the result, the appeal of the appellant is dismissed. Pronounced in the open Court on 24th February, 2012
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2012 (2) TMI 683
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... ... ..... on 23(1)(a) as if the property was let out in view of the provisions of section 23(4)(b). Therefore, the revenue authorities are justified in taxing the second house property on the basis of fair rental value. However, the assessee has made a claim that the second SOP was covered under Rent Control Act. In case rent of the property is covered under Rent Control Act, ALV can not exceed the standard rent determined/determinable under the said Act in view of the judgment of Hon'ble Supreme Court in the case of Mrs. Sheila Kaushik (131 ITR 435). This aspect has not been examined by the authorities below. We, therefore, set aside the order of CIT(A) and restore the matter back to the file of AO for passing a fresh order after necessary examination in the light of the observations made above and after providing an opportunity of hearing to the assessee. 5. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 29.2.2012.
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2012 (2) TMI 682
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... ... ..... favours the assessee must be adopted. This is a well-accepted rule of construction.” 17. Coming to the facts of the present case, the assessee having purchased the new property vide sale deed dated 21.1.2011. For this agreement of sale was entered on 29.11.2010 along with the contract for construction on 29.11.2010 and construction was completed before the sale deed is executed and the cost of the building was paid between 28.11.2010 to 18.1.2011. In our opinion, we have to take a liberal view of the beneficial provisions of section 54F and remodelling or renovation of the house to make it habitable to suit the requirement of the assessee and thereby we have to hold that the provisions of section 54F have been complied with by the assessee. In our opinion, deduction u/s. 54F has to be granted to the assessee. Accordingly, we allow the appeal of the assessee. 18. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 17th February, 2012.
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2012 (2) TMI 681
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... ... ..... f ₹ 58,100/- disallowed by the AO out of the amount of ₹ 4,39,089/- relating to repairs and maintenance, on the ground that the said amount is simply contribution toward a repair fund and not an actual expense incurred by the assessee in respect of any repair of office building or equipment, therefore, the same cannot be allowed. The CIT(A) confirmed the disallowance made by the AO. 23. After hearing the parties, perusing the record as well as the orders of the authorities below, we are of the view that though the assessee has not incurred the said amount, the same was paid towards repair fund, which is meant for using as and when any repair of office building or equipment is taken place. Therefore, we set aside the order of the CIT(A) and delete the disallowance made by the AO on this count and the ground raised by the asesssee is allowed. 24. In the result, appeal of the assessee is partly allowed. Pronounced in the open court on this 24th day of February, 2012.
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2012 (2) TMI 680
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... ... ..... at the assessee cannot be aggrieved of this revision order because the Commissioner has decided nothing against the assessee, and the assessee will have full opportunity of presenting his case to the Assessing Officer. This contention is too naïve to meet any judicial approval. If we have to accept this contention, the concept of finality of assessment will have to be buried deep and time limit for framing the assessments will have to be ignored altogether. The scheme of the Income Tax Act, in our humble understanding, does not visualize unfettered discretions being conferred upon the Commissioners to tinker with the completed assessments. We reject this contention as well. 10. For the reasons set out above, as also bearing in mind entirety of the case, we uphold the grievance of the assessee and quash the impugned revision order. The assessee gets the relief accordingly. 11. In the result, the appeal is allowed. Pronounced in the open court today on 17th February, 2012.
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2012 (2) TMI 679
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... ... ..... the conditions regarding assessee being registered as well as beneficial shareholder of the lender company are required to be established. In case any of the conditions is not satisfied then deeming provisions contained u/s 2(22)(e) of the Act cannot be attracted. Since in the present case, the assessee is neither a registered nor a beneficial shareholder of the lender company, we do not find any infirmity in the order of CIT(A) and confirm the same. 8. In the result, the appeal of the revenue and the cross objection of the assessee are dismissed.” We, therefore, following the aforesaid decision of the Tribunal, hold that the assessee is neither a registered nor a beneficial shareholder of the lender company. As such, there is no infirmity in the order of the learned Commissioner of Income Tax (Appeals) and we confirm the same. Ground No. 2 is accordingly dismissed. In the result, the appeal of the revenue is dismissed. Order pronounced in open Court on February, 2012.
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2012 (2) TMI 678
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... ... ..... and dispense from the requirement of furnishing a bank guarantee in terms of our order dated 17.01.2012 The respondents have filed their reply to the prayers made in the application. After the matter was argued for quite some time, learned senior counsel, Sh. Gupta, appearing for the respondent State, on instructions would submit, that since the petitioners had the benefit of an interim order, passed by the High Court from October, 2007 till the date of the impugned order, the same may be continued till the disposal of the special leave petition. We appreciate the stand of the learned senior counsel. Accordingly, we modify our interim order only to the following extent - "That the directions issued by us directing the petitioners to furnish bank guarantee for 50% of the accrued tax liability/arrears need not be furnished by the petitioners/applicants during the pendency of the special leave petition." In terms of the aforesaid order, the application is disposed of.
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2012 (2) TMI 677
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... ... ..... so worked out by applying net profit rate 3.3 % is required to be reduced by the amounts surrendered by the assessee amounting to ₹ 89,61,911/- in case of Anant Steels Limited and ₹ 57,23,421/- in case of Shivangi Estates Limited. Thus, the total income surrendered for excess stock amounting to ₹ 147.03 lakhs is required to be reduced out of unaccounted profit earned by the assessee as worked out in the manner stated hereinabove. The Assessing Officer is further directed to distribute the balance amount of unaccounted profit in the ratio of turnover of these companies as found by the Assessing Officer himself in the return of income for assessment year 2006-07, which was ₹ 33.61 crores in case of Anant Steels Private Limited and ₹ 25.16 crores in case of Shivangi Estates Limited. We direct accordingly. 18. In the result, both the appeals of the Revenue are allowed in part. This order has been pronounced in the open court on 13th February, 2012.
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2012 (2) TMI 676
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... ... ..... n of the ITAT Ahmedabad Bench (supra) but the ITAT “G” Bench Mumbai, in the case of ITO vs. Dr. Girish M. Shah in ITA No. 3582/Mum/2009 dated 17.02.2010, preferred to follow the decision taken by the Mumbai Bench in the case of Prema P. Shah. He also submitted that the Tribunal has chosen to apply the decision of the Hon'ble Apex Court in the case of CIT vs. Vegetable Products Ltd. 88 ITR 192 to hold that even if there are two views possible on the issue, the one which is favourable to the assessee has to be taken and accordingly supported the view taken by the learned CIT(A). 5. We have considered the rival submissions and perused the record. In the light of the subsequent decision of the ITAT Mumbai Bench (supra) we are of the view that the order passed by the learned CIT(A) does not call for any interference. Accordingly, as pronounced in the open court, the appeal filed by the Revenue is dismissed. Order pronounced in the open court on 16th February 2012.
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2012 (2) TMI 675
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... ... ..... defence to be decided by the court trying the case under the Negotiable Instruments Act. Since sufficient averments attracting of section 138 of the Negotiable Instruments Act are the foundation of the complaint and it is further averred that cheques were issued with mischievous, dishonest intention, knowingly and willingly to cheat the complainant-company. The arguments canvassed by the learned advocate for the applicant do not require any further deliberation in exercise of the powers under section 482 of the Code since quashing the complaint would not secure ends of justice but would result into miscarriage of justice. However, the court taking up the Negotiable Instruments Act cases shall not be influenced by the observation made hereinabove and shall dispose of all the cases within six months from the date of receipt of the writ/order of this court as they are pending since 1996. In the absence of merits, these applications are summarily rejected. No order as to costs.
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2012 (2) TMI 674
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... ... ..... m the above provision of law it is clear that only member or creditor of the company or RoC, can make an application to the CLB and upon receipt of the same the CLB can direct the company and any officer thereof to make good the default. It is unequivocal that only member, creditor or Registrar can apply to the CLB if it is an admitted fact and there is no dispute whatsoever with regard to the status of creditor. In such cases only the CLB may direct the company to make good the default. As stated supra in the present case, there is a serious dispute with regard to the petitioner's eligibility to apply to the CLB in the capacity as creditor. Therefore, this Bench does not have the jurisdiction to decide whether the petitioner is a creditor or not. In view of the facts and reasons as stated above, the petition is miserably failed and liable to be dismissed. Hence, the same is dismissed. Accordingly, the directions of the hon'ble High Court of Gujarat is complied with.
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2012 (2) TMI 673
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... ... ..... on and as it could not be substantiated that the issue is in connection with the extension of business or setting up of new industrial undertaking, the assessee is not eligible for claim under section 35D. The nature of expenses are listed out at para 6 of the assessment order. As there is no controversy on the issue whether the assessee has incurred this expenditure or not and as the nature of expenditure reflect that they are revenue in nature and as the assessee has not got any enduring benefit, we uphold the contention of the assessee and hold that the expenditure is allowable under section 37.” 24. In view of the above, we find no good reason to interfere with the order of the ld. CIT(A). It is confirmed and the ground of appeal of the Revenue is dismissed. 25. No other point has been urged by the Revenue except the above point. 26. In the result, the appeal of the Revenue is partly allowed for statistical purpose. Order pronounced in the open Court on 17.02.2012.
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2012 (2) TMI 672
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... ... ..... or the reasons mentioned therein, concurred with the proposed order of Ld. JM on the question referred to him. In view of the above, as per majority view, the appeal of the assessee on the issue referred to the Ld. Third Member stands allowed. There were other grounds in this appeal, on which there was no difference of opinion and, therefore, decision on those grounds in the proposed orders of Ld. Members remains the same. 3. In the result, the assessee’s appeal is treated as allowed for statistical purposes. Pronounced accordingly on 17-02-2012.
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2012 (2) TMI 671
Ramlila maidan Incident - whether an order passed u/s 144 crpc by the authorities stands protected under the restriction clause of Article 19 of the Constitution of India or does it violate the rights of a peaceful sleeping crowd, invading and intruding their privacy during sleep hours - The basic requirements for passing an order u/s 144 CrPC can be passed against an individual or persons residing in a particular place or area or even against the public in general. Such an order can remain in force, not in excess of two months. The Government has the power to revoke such an order and wherever any person moves the Government for revoking such an order, the State Government is empowered to pass an appropriate order, after hearing the person in accordance with Sub-section (3) of Section 144 CrPC. the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility.
Test of 'proximate and direct nexus with the expression' - the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest.
The restriction must be provided by law in a manner somewhat distinct to the term 'due process of law' as contained in Article 21 of the Constitution. If the orders passed by the Executive are backed by a valid and effective law, the restriction imposed thereby is likely to withstand the test of reasonableness, which requires it to be free of arbitrariness, to have a direct nexus to the object and to be proportionate to the right restricted as well as the requirement of the society, for example, an order passed u/s 144 CrPC. This order is passed on the strength of a valid law enacted by the Parliament. The order is passed by an executive authority declaring that at a given place or area, more than five persons cannot assemble and hold a public meeting. There is a complete channel provided for examining the correctness or otherwise of such an order passed under Section 144 CrPC and, therefore, it has been held by this Court in a catena of decisions that such order falls within the framework of reasonable restriction.
The distinction between 'public order' and 'law and order' is a fine one, but nevertheless clear. A restriction imposed with 'law and order' in mind would be least intruding into the guaranteed freedom while 'public order' may qualify for a greater degree of restriction since public order is a matter of even greater social concern. 'security of the state' is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of 'public order' and 'law and order'.
HELD THAT - In the present case, the State and the Police could have avoided this tragic incident by exercising greater restraint, patience and resilience. The orders were passed by the authorities in undue haste and were executed with force and overzealousness, as if an emergent situation existed. The decision to forcibly evict the innocent public sleeping at the Ramlila grounds in the midnight of 4th/5th June, 2011, whether taken by the police independently or in consultation with the Ministry of Home Affairs is amiss and suffers from the element of arbitrariness and abuse of power to some extent. The restriction imposed on the right to freedom of speech and expression was unsupported by cogent reasons and material facts. It was an invasion of the liberties and exercise of fundamental freedoms. The members of the assembly had legal protections available to them even under the provisions of the CrPC. Thus, the restriction was unreasonable and unwarrantedly executed. The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution. Except in cases of emergency or the situation unexceptionably demanding so, reasonable notice/time for execution of the order or compliance with the directions issued in the order itself or in furtherance thereto is the pre-requisite. It was primarily an error of performance of duty both by the police and Respondent No. 4 but the ultimate sufferer was the public at large.
It is nobody's case that the directions issued by the appropriate authority as well as the Police had not been carried out by the organisers. It is also nobody's case that the conditions imposed in the letters granting permission were breached by the organisers at any relevant point of time. Even on 3rd June, 2011, the Deputy Commissioner of Police, Central District, who was the officer directly concerned with the area in question, had issued a restricted circular containing details of the arrangements, the objectives and the requirements which the deployed forces should take for smooth organization of the camp at Ramlila Maidan. The threat of going on a hunger strike extended by Baba Ramdev to personify his stand on the issues raised, cannot be termed as unconstitutional or barred under any law. It is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence. The order passed u/s 144 CrPC does not give any material facts or such compelling circumstances that would justify the passing of such an order at 11.30 p.m. on 4th June, 2011. There should have existed some exceptional circumstances which reflected a clear and prominent threat to public order and public tranquility for the authorities to pass orders of withdrawal of permission at 9.30 p.m. on 4th June, 2011. What weighed so heavily with the authorities so as to compel them to exercise such drastic powers in the late hours of the night and disperse the sleeping persons with the use of force, remains a matter of guess. Whatever circumstances have been detailed in the affidavit are, what had already been considered by the authorities concerned right from 25th May, 2011 to 3rd June, 2011 and directions in that behalf had been issued. Exercise of such power, declining the permission has to be in rare and exceptional circumstances, as in the normal course, the State would aid the exercise of fundamental rights rather than frustrating them. The mere change in the purpose or in the number of persons to be gathered at the Ramlila Maidan simplicitor could hardly be the cause of such a grave concern for the authorities to pass the orders late in the night. In the Standing Order issued by the Police itself, it has been clarified that wherever the gathering is more than 50,000, the same may not be permitted at the Ramlila Maidan, but they should be offered Burari ground as an alternative. This itself shows that the attempt on the part of the authorities concerned should be to permit such public gathering by allotting them alternative site and not to cancel such meetings.
B.S. Chauhan, JJ - I respectfully agree with all the observations and the findings recorded by my colleague and I also concur with the observation that the findings recorded on the sufficiency of reasons in the order
There was no gossip or discussion of something untrue that was going on. To the contrary, it was admittedly an assembly of followers, under a peaceful banner of Yogic training, fast asleep. The assembly was at least, purportedly, a conglomeration of individuals gathered together, expressive of a determination to improve the material condition of the human race. The aim of the assembly was prima facie unobjectionable and was not to inflame passions. It was to ward off something harmful. What was suspicious or conspiratory about the assembly, may require an investigation by the appropriate forum, but to my mind the implementation appears to have been done in an unlawful and derogatory manner that did violate the basic human rights of the crowd to have a sound sleep which is also a constitutional freedom, acknowledged under Article 21 of the Constitution of India.
RIGHT TO SLEEP - It is believed that a person who is sleeping, is half dead. His mental faculties are in an inactive state. Sleep is an unconscious state or condition regularly and naturally assumed by man and other living beings during which the activity of the nervous system is almost or entirely suspended. It is the state of slumber and repose. It is a necessity and not a luxury. It is essential for optimal health and happiness as it directly affects the quality of the life of an individual when awake inducing his mental sharpness, emotional balance, creativity and vitality. Sleep is, therefore, a biological and essential ingredient of the basic necessities of life. If this sleep is disturbed, the mind gets disoriented and it disrupts the health cycle.
HELD THAT:- In Present case, as a sleeping crowd cannot be included within the bracket of an unlawful category unless there is sufficient material to brand it as such. The facts as uncovered and the procedural mandate having been blatantly violated, is malice in law and also the part played by the police and administration shows the outrageous behaviour which cannot be justified by law in any civilized society.
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