|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1066 Records
-
2014 (10) TMI 1076 - MADHYA PRADESH HIGH COURT
Regularization of casual employees - petitioners were engaged on temporary basis and sought a relief to the effect that a direction be issued to the respondents to formulate a policy in regard to regularize service of the petitioners alongwith other similarly situated persons in view of the fact that large number of posts were falling vacant - tribunal observed that the petitioners failed to produce all the requisite informations/ details to satisfy their claim for regularization in service
HELD THAT:- Since the petitioners failed to establish any legal right to the effect that their appointment was in accordance with law, the learned tribunal has rightly rejected the application of the petitioners in view of the judgment rendered in the case of Secretary, State of Karanataka & others Vs. Uma Devi (supra).[2006 (4) TMI 456 - SUPREME COURT] which provided that the employees who had rendered services continuously for ten years without the cover of the court's order be regularized as the onetime measure. Petition dismissed.
-
2014 (10) TMI 1075 - ITAT MUMBAI
Denial of Liability towards interest expenditure - HELD THAT:- Identical issue arose before the Bench for A.Y. 2000-01 and following the decision of the Tribunal in the case of M/s Eminent Holdings Pvt. Ltd. [2014 (7) TMI 2 - ITAT MUMBAI] wherein the decision of Hitesh S. Mehta [2013 (10) TMI 1065 - ITAT MUMBAI] was followed and finally the issue was set-aside to the file of the ld. CIT(A) for fresh adjudication with a direction to grant a reasonable opportunity of being heard on the issue and thus was allowed for statistical purposes. Following the reasoning, being identical facts/issue before us we remand this issue to the file of the ld. CIT(A) for fresh adjudication.
Calculation of book profit u/s 115JB - Since, we have remanded the aforesaid ground of not granting relief of liability towards interest expenditure claimed by the assessee to the file of the ld. CIT(A), therefore, the grievance of the assessee will depend upon the outcome of the decision to be taken with respect of aforesaid ground no. 4. Consequently, this ground is consequential to the above - this ground is allowed for statistical purposes.
Charging of interest u/s 234A, 234B and 234C - HELD THAT:- Agreed, levy of interest is mandatory and sometimes consequential depending upon the facts of each case. We note that identical issue arose before the Tribunal in the aforesaid cases therefore following the reasoning contained therein we direct the AO to recomputed the interest liability after reducing the amount of tax deductable at source. This ground is allowed for statistical purposes.
-
2014 (10) TMI 1074 - KERALA HIGH COURT
Direction to appellant to allow him to join duty as Professor (Management) - HELD THAT:- The conclusion is irresistible, that the principles laid down in SELVIN ABRAHAM VERSUS PUNJAB & SIND BANK [2013 (6) TMI 928 - KERALA HIGH COURT] are contrary, not only to the Full Bench judgment in NAIK NAKUL DEO SINGH VERSUS THE DEPUTY COMMANDANT, C.I.S.F. AND ORS. [1999 (8) TMI 1022 - KERALA HIGH COURT] but also to the Apex Court judgments referred to. As a result, Selvin Abraham does not laid down good law and therefore, is overruled.
There are no averment in the writ petitions where the petitioners have raised any plea as to how the Kerala High Court has territorial jurisdiction over the cause of action which led them to file the writ petitions. Instead, counsel wanted us to infer from the above pleading that an integral part the cause of action arose within the jurisdiction of this Court. However, if the facts which noticed above are evaluated in the light of the law laid down in Nakul Deo Singh and the Apex Court judgments, the only conclusion that is possible is that no part of the cause of action, much less any integral part of the cause of action, has arisen within the territorial jurisdiction of this Court justifying the entertainment of these writ petitions.
The Division Bench judgment in Selvin Abraham v. Punjab & Sind Bank is overruled - petition dismissed.
-
2014 (10) TMI 1073 - ITAT DELHI
LTCG - Deduction u/s 54-F - exemption on capital gains on sale of flat on acquisition of two houses - HELD THAT:- Assessee fairly conceded that this issue is covered in favor of the Revenue by the decision of the Punjab and Haryana High Court in the case of Pawan Arya vs. CIT [2010 (12) TMI 44 - PUNJAB AND HARYANA HIGH COURT] stating as regards claim for exemption against acquisition of two houses u/s 54 of the Act, the same is not admissible in plain language of statute.
As in CIT vs. D. Ananda Basappa [2008 (10) TMI 99 - KARNATAKA HIGH COURT] referred to in the impugned order, exemption against purchase of two flats was allowed having regard to the finding that both the flats could be treated to be one house as both had been combined to make one residential unit. The said judgment, thus, proceeds on a different fact situation.
Status of assessee as 'HUF' instead of 'Individual' - ownership in land in question - During the assessment proceedings itself, assessee came to know about the correct legal position that the subject property belongs to the individual and not to HUF and made detailed submissions supported by evidences to establish that the impugned land was the property of the “individual” and not the property of HUF and capital gain tax liability can not be raised in its hands.
Following pleadings and evidences would establish that the land in question was the property of individual and not the property of HUF and thus, any capital gain arising on the transfer of such land would not be the income of the HUF.
As decided in Khimji Teju Kaya reported [1977 (11) TMI 26 - BOMBAY HIGH COURT] held that self acquired property of the father bequeated to Son by Will would constitute individual property and even if income from such property was shown in the return as HUF income, the income from that property is to be assessed in individual capacity.
We also find that Ld. Counsel of the assessee at the time of hearing has also filed the copy of income tax return of Sh. Sunny Choudhary, who is brother of the assessee and other co sharers which shows that the same was filed in the capacity of "individual". Thus we find that both the assessees come under the individual capacity instead of HUF category.
-
2014 (10) TMI 1072 - ITAT RAJKOT
Brought forward depreciation - Disallowance made as unabsorbed depreciation can be carried forward only for eight assessment years - scope of Section 32 as amended by Finance Act 2001 - HELD THAT:- As respectfully following the decision of General Motors India (P.) Ltd [2012 (8) TMI 714 - GUJARAT HIGH COURT] hold that in the present case the unabsorbed depreciation is covered by the provisions of Section 32(2) of the Act, as amended by Finance Act, 2001 and is therefore available for carry forward and set off against the profits and gains of subsequent years. We, thus, allow this ground of the assessee.
-
2014 (10) TMI 1071 - DELHI HIGH COURT
Seeking execution of an ex parte Award - whether the Award dated 9.5.2005 was an Award/decree which was illegal, non est and void in law and therefore could not be executed inasmuch as effectively the Award was passed for enforcement of protection money amounts? - HELD THAT:- The executing court by reference to Sections 23 and 24 of the Indian Contract Act, 1872 has held the agreement to be illegal/non est/void by holding that really the agreement pertains to basically protection money being payable by the bus owners to the petitioner. The executing court has also observed that issues which are raised in the agreement effectively make the petitioner a super traffic police man under the Motor Vehicles Act, 1988 and which position is inconceivable in law.
Executing court has also referred to the judgment of the Supreme Court in the case of Jaipur Development Authority Vs. Radhey Shyam and others for holding that an illegal Award cannot be executed.
The contention urged on behalf of the counsel for the respondent agreed upon, that really the amount received under the Agreement dated 6.10.2004 was protection money being paid when the buses used to ply through 'area' under the 'control' of the petitioner. Surely, the petitioner is not a Traffic Inspector under the Motor Vehicles Act or any other designated authority under the Motor Vehicles Act and therefore if the petitioner is given money by each bus owner running buses on route no. 212 it can only be because either the petitioner was a 'saint' who was trusted by all the bus owners for disciplining the bus owners or actually the petitioner is a notorious person who was taking money in the guise of the Agreement dated 6.10.2004, and in my opinion, actually it is the latter which the petitioner is and with respect to which aspect one is left in doubt when one reads the clauses of the Agreement dated 6.10.2004 and the reasoning given by the executing court below.
The issues which have been raised and decided by the impugned judgment were therefore not decided by the court in which objections were filed under Section 34 of the Arbitration and Conciliation, 1996. An Award which is a nullity being against public policy can always be challenged even at the stage of execution inasmuch as, if we take a most extreme example that an Award is passed that 'A' will steal money for 'B' then surely 'B' cannot enforce the Award/decree stating that 'A' should give him particular amount of money which was to be stolen by 'B' for being given to 'A'.
There is no merit in the petition which is an abuse of the process of law and is therefore dismissed with costs of Rs.1,00,000/- to be deposited within a period of four weeks with the Prime Minister's National Relief Fund - It is clarified that in case the respondents have paid any amount to the petitioner pursuant to the illegal Award dated 09.2.2005, the respondents are entitled to restitution under Section 144 of Code of Civil Procedure, 1908 (CPC) and other powers of restitution provided in law alongwith the interest @ 12% per annum simple. The restitution proceedings can be initiated in the executing court itself by the respondents.
-
2014 (10) TMI 1070 - MADRAS HIGH COURT
Maintainability of FIR - any prima facie case disclosed by the FIR and the materials collected during the course of investigation - applicability of ingredients of the offences under Sections 294A, 420, 120b, 467, 468 and 471 IPC - amount seized is accounted one representing part of the sale consideration for sale of the property belonging to A3 and the same is duly reflected in the income tax returns and is also duly accepted by the competent Income Tax authority.
HELD THAT:- The Hon'ble Apex Court in the decision DEVENDRA & ORS VERSUS STATE OF U.P. & ANR. [2009 (5) TMI 921 - SUPREME COURT] held that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidence collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing. Only in this legal premises, the facts of the present case are to be gone into, to find out whether any ground is made out to quash the proceedings.
As far as the act of forgery of valuable security and the act of forgery for the purpose of cheating and using the forged document as genuine punishable under sections 467, 468 and 471 are concerned, what is the act of forgery and act of forgery of valuable security is defined under Sections 463 and 467 IPC. The reading of the relevant provisions of law would disclose that the same involves making of false document with illegal intention. Further, Section 468 IPC defines forgery for the purpose of cheating, as an act of forgery coupled with an intention that the document or electronic record forged shall be used for the purpose of cheating. That being so, the execution of any agreement between two persons in non judicial stamp paper even assuming by correcting the dates, will not amount to create a false document.
As a matter of fact, the mode of act of forgery is whether by correcting the dates or by creating non judicial stamp papers, is not mentioned in the alteration report. The case of the prosecution in this regard is that the sale agreement was created in the stamp papers, which were sold to public on 13.3.2012.
As far as the present case is concerned, the custody of unaccounted money is not specified to be an offence and the act of creating anti dated document by allegedly using forged non judicial stamp papers is also not specified as offence under the Code. When that being so, it cannot be assumed that the accused are punishable for the offences under sections 467, 468 and 471 IPC - it cannot be said that the parties have gained anything out of creating such document. If that is so, applying the views of the Hon'ble Apex court, no case for the act of forgery can be said to be made out against the accused in the present case.
Other section charged against the petitioners and others is the offence punishable under section 294A IPC. The accused are charged for the same, based on further confession statement of A1 dated 16.3.2012. A1 has in his further so called confession statement, allegedly admitted his keeping one office in his house at Chennai, wherein, 3000 expired lottery tickets were kept by him and the same were seized on being identified by A1. The learned senior counsel for the petitioners would seriously attack this part of the allegation to be highly improbable - This court finds greater force in the argument so advanced on the side of the accused.
This court is of the view that neither the case of the prosecution do disclose any of the ingredients of the offences charged against the accused nor the accused can be subjected to face the ordeal of trial by reason of improbable nature of prosecution case, as such, the FIR pending on the file of the respondent police is liable to be quashed in entirety against the petitioners herein as well as non petitioners.
Petition allowed.
-
2014 (10) TMI 1069 - DELHI HIGH COURT
Dishonor of Cheque - validity of legal notice - Security cheque - legally enforceable debt or not - Fine or compensation as per section 138 of NI Act - authority to institute the complaint - HELD THAT:- A bald suggestion was given to this witness that he was in fact not authorized to file the present complaint. However, these submissions do not detract from the veracity of the document which is the authorization dated 26.9.1995 (Ex. PW-3/A) which specifically states that PW-3 namely Deepak Rai Srivastava was authorized by the company through resolution circulated in the 136th Board Meeting held on 09.06.1992 (as referred in Ex PW3/B) to file the present complaint. The power of attorney Ex. PW-3/B executed by the company in March, 1999 authorized him to institute and pursue all cases on behalf of the complainant company. There is no attack on these documents; they are authentic and valid. The authorization letter (Ex. PW-3/A) validly authorized PW-3 to institute and pursue the complaint.
Section 142 of the Act provides that a complaint under Section 138 of the Act can be made by the payee or the holder in due course. This complaint has admittedly been filed in the name of, and on behalf of the company - In the case of Associated Cement Co. Ltd. Vs. Keshvanand [1997 (12) TMI 629 - SUPREME COURT], the Court had held that the complainant has to be a corporeal person who is capable of making a physical appearance in the Court. There may also be occasions that different persons would represent the company. It is open to the de jure complainant to seek permission of the Court for sending any other person to represent the company in the Court. In that case the Court had held that even presuming that initially there was no authority, still the company can at any stage rectify that defect.
Validity of the legal notice - HELD THAT:- No suggestion had been given to witness that the notice had not been received by the company or that they had not filed their reply Ex. PW-3/E. It was only in the statement of the petitioners under Section 313 Cr.P.C. that under legal advice a false defence has been sought to be set up that no such legal notice had been received by this Court. If this was the position, this fact should have been disputed by the petitioners right from the inception i.e. during the course of cross-examination of PW-3. No such defence having been propagated, it is a clear case where the defence has now been set up as an afterthought.
The complaint discloses the date of legal notice as 12.8.1996. The fact finding of the Court below i.e. the Court of the Magistrate has rightly noted that this can only be a typographical error as the date in Ex. PW-3/C is 16.8.1995. Reply to this legal notice Ex. PW-3/E had acknowledged the liability qua the complainant company and in part payment, sum of Rs. 5,00,000/- had been sent vide their communication dated 29.8.1995. This letter has also not been challenged in the cross-examination of PW-3 when he had proved this document - This Court also notes that it is an admitted fact that as per the complainant a common legal notice had been sent qua all the transactions between the parties; there were seven transactions and in the reply by the petitioner company on 29.8.1995 it had enclosed a cheque of a part payment of Rs. 5 lac. This argument has also dealt with by both the fact finding Courts below and had been answered in favour of the complainant.
Security Cheques or not - legal debt or liability by the petitioner to the complainant or not - HELD THAT:- In the instant case, since the payment was not made against all the supplied goods, the security cheques got converted into normal cheques against consideration of the goods supplied and therefore they were not to be considered as security cheques. This was explained in the complaint. PW-3 on oath has also reiterated this position. He deposed that after the supply of the goods, the accused had not given a separate cheque. The cheque in question was presented to the bank which was returned along with the returning memo after having been dishonoured for the reason "Exceeds Arrangement". Marks DA and DB which is a letter and fax message exchanged between the parties only sought expedition of the dispatch of the goods. Neither of these communications state that the goods had not been supplied by the complainant company and as such the payment was not due to the complainant company. The fact finding courts after the scrutiny of these documents had also noted that these documents had not been proved and could not really be read in evidence as they were only photocopies of the original; even otherwise they did not advance the version of the petitioners that the goods had not been supplied by the complainant company - The presumption under Section 118 of the N.I. Act did not stand rebutted. The cheque had been issued for valid legal consideration.
Fine or compensation as per section 138 of NI Act - HELD THAT:- Under sub-section 3, where a fine has not been imposed, the Court may order the payment of compensation. A reading of Section 357(4) Cr.P.C. makes it clear that under this sub-section an order of compensation can be passed by the appellate Court; the High Court or by the Court of Sessions in revision. The power of the Court to award compensation is not ancillary to other sentences but is in addition thereto. This power under this Section has a message i.e. a measure of responding properly to the crime as also reconciling the victim with the offender - An amount of 'compensation' can be directed to be recovered as a fine but a legal fiction is raised in relation to recovery of 'fine' and in that sense a 'fine' stands on a higher footing than the 'compensation' awarded by the Court. Although, after the amendment in the said Act (by the Amendment Act, 2002) a Magistrate of the first class can also impose a sentence of fine exceeding Rs. 5000/-.
The object of 'fine' and 'compensation' is the same i.e. to compensate the victim. The purpose of fine and compensation being the same; i.e. to assuage the grievance of the complainant, the sentence imposed by the Sessions Judge of a compensation of Rs. 50 lac (noting the cheque was to the tune of Rs. 1,19,80,800/-) suffers from no infirmity.
Petition dismissed.
-
2014 (10) TMI 1068 - KARNATAKA HIGH COURT
Requirement of obtaining of licence under the relevant Licensing Order/s of the State Government or under the Karnataka Police Act, 1963 - HELD THAT:- Undisputedly, this writ petition is identical to CHELOORU MERCHANT AND OFFICIAL RECREATION VERSUS THE GOVERNMENT OF KARNATAKA HOME DEPARTMENT; THE COMMISSIONER OF POLICE, BANGALORRE; SUPERINTENDENT OF POLICE; DEPUTY SUPERINTENDENT OF POLICE; CIRCLE POLICE INSPECTOR; INSPECTOR OF POLICE CHICKABALLAPUR [2014 (10) TMI 1067 - KARNATAKA HIGH COURT] where it was held that Regulatory mechanism is required, to check the illegal activities, if any, in the club(s) / association(s), registered as a society, under the Karnataka Societies Registration Act. When the club/association allows its member(s) to play games with stakes or make any profit or gain out of such games, police has the authority to invoke the provisions of the Act.
The petitioner shall install within a period of six weeks, CC TV cameras, at all the places of access to its members and also at all the places, wherein game(s) is/are played by the members. The CC TV footage of at least prior 15 days’ period shall be made available by the petitioner, to the police, as and when called upon to do so.
Petition disposed off.
-
2014 (10) TMI 1067 - KARNATAKA HIGH COURT
Seeking direction to respondents not to insist upon the obtaining of licence under the relevant Licensing Order/s of the State Government or under the Karnataka Police Act, 1963 - petitioner contended that only lawful activities are being carried on in the premises of the petitioner and that no game(s) of chance or event(s) of public amusement are being conducted in the petitioner’s premises - HELD THAT:- In RAMA RECREATION ASSOCIATION Vs. COMMISSIONER OF POLICE, [1993 (10) TMI 374 - KARNATAKA HIGH COURT], after referring to the definition of ‘place of public amusement’ and ‘place of pubic entertainment’ under Ss.2(14) & 2(15) of the Act, it was held that a Club is a place in which only its members are permitted to engage in any diversion or recreational activities etc. and such an association need not take out a licence under the Licensing Order.
There is no denial of the fact that there is mushroom growth of the societies like that of the petitioner and that the modus operandi is not what it appears to be on paper and bye-laws / memorandum of association etc. Regulatory mechanism is required, to check the illegal activities, if any, in the club(s) / association(s), registered as a society, under the Karnataka Societies Registration Act. When the club/association allows its member(s) to play games with stakes or make any profit or gain out of such games, police has the authority to invoke the provisions of the Act.
In DURGAPARAMESHWARI RECREATION ASSOCIATION Vs. GOVERNMENT OF KARNATAKA AND OTHERS, [2013 (3) TMI 872 - KARNATAKA HIGH COURT], it was held that the respondents should not interfere with lawful activities of the petitioner – club. However, it was made clear that the respondents are permitted to take action in accordance with law, in case, the petitioner indulges in any unlawful activity.
Thus, all the legal points raised by the learned advocates stand covered by the Orders / Judgments referred to hereinabove and hence, a further examination of the contentions is unnecessary.
The petitioner shall install within a period of six weeks, CC TV cameras, at all the places of access to its members and also at all the places, wherein game(s) is/are played by the members. The CC TV footage of at least prior 15 days’ period shall be made available by the petitioner to the police, as and when called upon to do so - petition disposed off.
-
2014 (10) TMI 1066 - KARNATAKA HIGH COURT
CENVAT Credit - clearances to SEZ Developers even prior to 2008 - specific amendments made to Cenvat Credit Rules, whether the said amendments were prospective or retrospective? - HELD THAT:- This Court had an occasion to consider the said question in THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX AND THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S FOSROC CHEMICALS (INDIA) PVT LTD AND OTHERS [2014 (9) TMI 633 - KARNATAKA HIGH COURT], wherein it was held that amendment has to be construed as retrospective in nature and the benefit of Rule 6(6)(i) as amended in 2008 has to be extended to the goods cleared to a ‘developer’ of a Special Economic Zone for their authorised operations. Therefore, there are no merit in this appeal.
Appeal dismissed.
-
2014 (10) TMI 1065 - DELHI HIGH COURT
Use/infringement of trade mark - Goodwill and reputation - Suit for permanent injunction, damages for infringement of trade mark WORLD BOOK, passing off, dilution, unfair competition, delivery up, and rendition of account or damages against the defendant - use of domain name - main case of the plaintiffs is that the defendant is not entitled to use the trade name/trademark WORLD BOOK as part of defendant’s corporate name or trade name - Principles of Balance of Conveniens.
HELD THAT:- The defendant’s entitlement to use other corporate name with different brand name cannot be denied if the defendant would join any book fair or seminar under different corporate name and trademark.
The plaintiffs’ objection in the present case is with respect to the use of the mark WORLD BOOK by the Defendant as a trade name/mark and/or domain name. The logo of the Defendant contained the trade mark/trade name WORLD BOOK of the Plaintiffs. The defendant has no right to use the trade mark/trade name of the plaintiffs in any form whatsoever. The use of the domain name WORLDBOOKCOMPANY.IN on the part of the defendant is also likely to cause confusion and deception in the mind of unwary class of customers. The business of the Plaintiffs’ is likely to be diverted to the defendant on account of features of the domain which contain the mark of the Plaintiff.
The plaintiffs’ mark WORLD BOOK in the present case is highly distinctive; it has acquired residual goodwill and reputation. It is a registered trademark. Hence, mere defences raised by the defendant are moonshine and flimsy which are against the law.
In view of the facts, circumstances and the evidence filed on record, the plaintiffs establish a prima facie case for the confirmation of the ex-parte order of interim injunction. The balance of convenience also lies in favour of the plaintiffs and against the defendant, if the interim order is not continued, the plaintiffs would suffer loss and irreparable injury. On the other hand, the defendant is also under injunction for the last more than one year and four months. Their adoption of the name is not honest.
The defendant’s application under Order XXXIX Rule 4 CPC is dismissed.
-
2014 (10) TMI 1064 - ITAT HYDERABAD
Weighted deduction u/s 35(2AB) on clinical trials outside India - AO observing that expenditure relating to clinical trials outside India have not been included by the prescribed authority in its report in Form No. 3CL, disallowed assessee’s claim of weighted deduction on such expenditure - HELD THAT:- On a perusal of the report of the prescribed authority in Form No. 3CL it becomes clear that such expenditure has, in fact, been mentioned in the said report of the prescribed authority. Therefore, reasoning of the AO is without any basis.
Furthermore, the issue relating to claim of weighted deduction on expenditure incurred on clinical trial outside India was subject matter of dispute in appeals filed by Revenue before the coordinate bench of this tribunal in assessee’s own case for the AY 2000-01 to 2002-03 and again in AY 2004-05 & 2005-06 [2010 (1) TMI 1299 - ITAT HYDERABAD].
Tribunal while deciding the issue upheld the order of CIT(A) by observing that assessee is entitled for weighted deduction on expenditure incurred on clinical trials outside India. As the CIT(A) has followed the decision of the coordinate bench of this Tribunal in assessee’s own case for preceding assessment year, there is no reason to interfere with the same. Accordingly, we uphold the order of CIT(A) by dismissing grounds raised by the department.
-
2014 (10) TMI 1063 - ITAT MUMBAI
Deduction u/s.80P(2)(a)(i) - assessee is a co-operative credit society registered under Co-operative Societies Act engaged in the business of accepting deposits from members and lending to members of the co-operative credit society only on the basis of self help and mutuality - AO was of the firm belief that the assessee fulfils the condition laid down u/s.56(c)(ccv) of part V of the Banking Regulation Act, 1949 for being a co-operative bank and proceeded by denying the claim of deduction - HELD THAT:- The Hon’ble Gujarat High Court in the case of CIT vs. Jafari Momin Vikas Co-op. Credit Society Ltd. [2014 (2) TMI 28 - GUJARAT HIGH COURT] as held we cannot entertain the Revenue’s contention that section 80P(4) would exclude not only the co-operative banks other than those fulfilling the description contained therein but also credit societies, which are not co-operative banks. In the present case, respondent assessee is admittedly not a credit co-operative bank but a credit co-operative society. Exclusion clause of sub-section (4) of section 80P, therefore, would not apply. In the result, Tax Appeals are dismissed.’
Similar view is taken by the Tribunal’s Mumbai Bench in the case of M/s. Mumbai Teleworkers Co-op. Credit Society Ltd. [2014 (7) TMI 1057 - ITAT MUMBAI] and in the case of M/s. Kulswami Co-op. Credit Society Ltd. [2014 (4) TMI 355 - ITAT MUMBAI] - Decided against revenue.
-
2014 (10) TMI 1062 - ITAT MUMBAI
Addition u/s 68 - AO noticed from AIR information that the assessee has deposited cash in bank account - HELD THAT:- Assessee has undertaken to fully co-operate with the tax authorities and also agreed to produce all the relevant parties who have given cash to the assessee and to whom cheques were issued. Further the assessee has also agreed to furnish all other details. We are of the view that, in the interest of natural justice, the assessee may be given one more opportunity to prove the cash deposits made into the bank accounts.
Accordingly, we set aside the order of CIT(A) on these two issues and restore them to the file of the assessing officer with the direction to examine them afresh after affording necessary opportunity of being heard to the assessee and take appropriate decision in accordance with the law. We prefer to set time frame for completion of the assessment.
We direct AO to complete the assessment within three months from the date of receipt of this order. The assessee is also directed to fully co-operate with AO in completing the assessment by furnishing all the details that may be called for and by producing the parties as may be required by the assessing officer. Assessee is treated as allowed for statistical purposes.
-
2014 (10) TMI 1061 - BOMBAY HIGH COURT
Reopening of assessment u/s 147 - notice beyond four years from the end of the relevant assessment year - jurisdiction to the AO to issue reopening notice viz. failure on the part of the petitioner to truly and fully disclose all material facts necessary for assessment - HELD THAT:- We are unable to understand/accept the submission made on behalf of the Revenue that Schedule 21 Notes to Annual Accounts were written in small print and hidden away in the Balancesheet resulting in the AO omitting to notice during the regular assessment proceedings. The reasons in support of the impugned notice which have been issued long after the completion of the regular assessment proceedings on 21 March 2002 rely upon the same Notes to Annual Accounts to issue impugned notice for reopening of the assessment.
The submission of the Revenue based on Explanation 1 to Section 147 that the Notes to Annual Accounts could only have been discovered by the AO with due diligence and therefore would not amount to a disclosure within the meaning of the first proviso to Section 147 is not acceptable. This for the reasons Explanation 1 to Section 147 of the Act does not refer to the Balancesheet and Profit & Loss Account which is necessarily to be submitted alongwith the return of income, otherwise the return of income is itself regarded as defective u/s 139 of the Act. Thus Explanation 1 to Section 147 of the Act would have no application to the present facts.
While allowing the petition on the above grounds, we must make it clear that we do not accept the submissions of the petitioner that the reasons in support of the impugned notice is devoid of particulars and therefore bad in law. The reasons do indicate why according to the AO there has been escapement of income. The impugned notice as well as the order rejecting the petitioner's objection to the impugned notice are quashed and set aside.
-
2014 (10) TMI 1060 - DELHI HIGH COURT
Infringement in the use of trademark or not - Seeking interim injunction against the appellant restraining the appellant from using the mark ‘D’DAAZS’ or any other mark deceptively similar to that of the respondent-plaintiff’s trade mark ‘HAAGEN-DAZS’ in relation to ice cream - HELD THAT:- Since time immemorial the Supreme Court has consistently sounded a note of caution that the competing marks have to be compared keeping in mind an unwary purchaser of average intelligence and imperfect recollection - Consumers of any product do not deliberately memorize marks. They only retain a general, indefinite, vague, or even hazy impression of a mark and so may be confused upon encountering a similar mark. Consumers may equate a new mark or experience with one that they have long experienced without making an effort to ascertain whether or not they are the same marks. The consideration therefore is whether one mark may trigger a confused recollection of another mark. Thus, if the marks give the same general impression confusion is likely to occur.
The ‘ordinary observer’ test is applied to determine if two works are substantially similar. The Court will look to the response of an ‘average lay observer‟ to ascertain whether a copyright holder's original expression is identifiable in the allegedly infringing work - Since it is employed to determine qualitative and quantitative similarity in visual copyright work, the said test can also be usefully applied in the domain of trademark law as well.
The Courts have reiterated that the test for substantial similarity involves viewing the product in question through the eyes of the layman. A layman is not expected to have the same ‘hair-splitting’ skills as an expert. A punctilious analysis is not necessary. A layman is presumed to have the cognition and experiences of a reasonable man. Therefore, if a reasonable observer is likely to get confused between the two products then a copyright violation is said to take place - Transposing the said principles in the context of trademark infringement, one may venture to assess similarity and likelihood of confusion between rival marks on the touchstone of the impression gathered by a reasonable observer, who is a layman as opposed to a connoisseur.
No interference is called for with the impugned order passed by the learned Single Judge. Consequently, the present appeal is dismissed.
-
2014 (10) TMI 1059 - MADRAS HIGH COURT
Seeking to assail the territorial jurisdiction of this Court invoked by the original writ petitioner - doctrine of forum conveniens - HELD THAT:- Undisputedly, the first respondent’s business is located at Mumbai. This gave rise to the first respondent filing applications under the Patents Act in the Office of the Registrar of Patents at Mumbai, and the patents of the first respondent were registered at Mumbai. It is in fact the petitioner which was aggrieved by the registration of the patents in favour of the first respondent and sought revocation of the patents by initiating proceedings before the Gujarat High Court. In those proceedings, the first respondent took an objection about the jurisdiction of that Court. The first respondent also initiated criminal proceedings before the X Metropolitan Magistrate’s Court at Mumbai. He had also filed a writ petition in the Bombay High Court, which he subsequently withdrew on account of other reasons.
The petitioner was desirous of an early adjudication on the issue of the applications filed for revocation of patents. The parties thus joined together to have the matter heard at Chennai, which was the Principal Seat of the IPAB, on account of time being at the disposal of the IPAB. It is in this context that the hearing was held by the IPAB at Chennai and the final order was passed at Chennai and not at Mumbai. In our view, this was an arrangement only for convenience of hearing - Merely because both the parties having agreed to get the matter heard early, made arrangements through their counsel to attend the hearings at Chennai being the Principal Seat of the IPAB, would not make a difference and it is a fit case where the principle of forum conveniens should be invoked and the parties be put to adjudication before the High Court of Bombay, rather than this Court.
The present factual matrix is not even where it is the situs of the appellate authority in question. The Bench of the appellate authority was actually located at Mumbai and thus, only for convenience of hearing for certain days were sittings held at Chennai. This is a distinct factor, even though the Full Bench of the Delhi High Court in M/s. Sterling Agro’s case [2012 (6) TMI 76 - DELHI HIGH COURT - LB] had in fact observed that an order of the appellate authority constitutes a part of the cause of action, yet the same may not be a singular factor, and the High Court may refuse to exercise jurisdiction by invoking the doctrine of forum conveniens. The mere fact that hearing was held at Chennai rather than at Mumbai on account of a given inadequacy of sittings at Mumbai by the IPAB Circuit Bench at Mumbai, thus would not imply that this Court should necessarily exercise the jurisdiction.
Application allowed.
-
2014 (10) TMI 1058 - ITAT COCHIN
Levy of penalty u/s. 271D - Cash Loans taken - whether the assessee has accepted cash loans from various parties in contravention of the provisions of sec. 269SS so as to invite the rigour of the penal provision of S.271D ? - HELD THAT:- From the records available before us, we are not able to decide the issue as to whether the assessee has taken cash loan as stated by the department, or there are only journal entries as claimed by the assessee, since material to that effect have not been furnished before us. We therefore, deem it just and proper to remit the matter to the file of the Assessing Officer, to verify the fact as to whether the assessee has actually received cash loan from five parties or there were mere journal entries to that effect. If ultimately, it is found that no cash loan was actually received by the assessee in the course of the transactions from five parties to the tune of Rs. 10,85,010/- and there were only journal entries to that effect, then no penalty can be levied under Sec.271D - AO shall accordingly redecide the issue of applicability of the penal provisions of Sec.271D to the facts of the present case, in accordance with law, keeping in view our aforesaid direction, and after giving reasonable opportunity of hearing to the assessee.
Levy of Penalty on payments other than account payee cheques - CIT(A) has given categorical finding after examining the bank certificates furnished before the Assessing officer, that transactions of M/s. Madura Capital Market Services Pvt. Ltd. and Mr. Vishal M. Kapadia were not be account payee cheques. Also for M/s. Padinjarathala Securities Ltd. only part of the transaction was by account payee cheque. Being so, the CIT(A) justified the levy of penalty of 20% of the amount of and confirmed the levy of penalty .
Regarding the deposits relating to transactions amounting to Rs. 25.50 crores - Admittedly, the CIT(A) has not called for remand report from the Assessing officer in order to verify the correctness of the bank certificate. The CIT(A) should have called for remand report from the Assessing officer so as to physically examine the copies of Cheque Nos. 191212, 191106, 191121 and 191181. Without examining the copy of cheques physically, she deleted the penalty which is not proper. In our opinion, it is just and proper to remit the entire issue to the file of the Assessing officer to conduct necessary enquiry and the assessee has to produce necessary evidence in support of its claim and if the assessee fails to produce the necessary evidence, the Assessing officer is at liberty to take adverse inference and decide accordingly.
Levy of penalty u/s. 271E - Amounts paid as commission by way of book entries and repayment of loan by book entries - HELD THAT:- It is just and proper to remit the entire issue to the file of the Assessing officer to conduct necessary enquiry and the assessee has to produce necessary evidence in support of its claim and if the assessee fails to produce the necessary evidence, the Assessing officer is at liberty to take adverse inference and decide accordingly.
-
2014 (10) TMI 1057 - KARNATAKA HIGH COURT
Dishonor of Cheque - whether such presentation of the cheque for the second time and then to lodge a complaint on dishonour, was permissible? - HELD THAT:- There is no doubt what so ever that a prosecution based upon a second or successive dishonour of the cheque is permissible as long as the same satisfies the requirements stipulated in the proviso to Section 138 of the NI Act - Incidentally, a finding by the appellate court that the petitioner had suppressed the fact of the cheque having been dishonoured in the first instance, is also incorrect. As may be seen from the sworn statement of the petitioner before the trial court, this fact has been stated.
Accordingly, in the present case on hand, as the complainant was well within his right to have made a second presentation of the cheque in question and the complaint filed upon dishonour and failure to meet the demand under a notice issued thereafter, cannot be said to be bad in law.
The appeal is allowed.
........
|
