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Showing 101 to 120 of 1429 Records
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2014 (2) TMI 1332 - BOMBAY HIGH COURT
Non-disclosure of information - application seeking vague and voluminous uncalled for information from the petitioner - Grievance is that the petitioner, finds itself harassed by the applications filed by respondent No.4 under the Right to Information Act, 2005 - Held that: - we are unable to accept the contentions of the petitioner for reasons more than one. Firstly, that the petitioner has rushed to this Court claiming a relief against a private individual respondent No.4. Respondent Nos. 1 to 3 and 5 appear to have been arrayed so as to render the matter maintainable under the writ jurisdiction of this Court. Secondly, the petitioner needs to test its contention that it is not a public Authority u/s 2(h) of the R.T.I. Act.
The petitioner needs to take a specific stand under the provisions of the Act while dealing with the application of respondent No.4. Instead of rushing to this Court, the petitioner should first deal with the application filed by respondent No.4, which is pending before it. It’s decision will always be subject to judicial scrutiny under the Act.
The contention of the petitioner that it is an onerous task and a financial burden to prepare copies of documents to be supplied to the applicant, clearly appears to be unsustainable since the charges are to be paid by the applicant. If the applicant makes a claim that he is below poverty line, the same has to be determined by the appropriate Government in view of the proviso to Section 7(5).
Petition dismissed.
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2014 (2) TMI 1331 - ITAT MUMBAI
Disallowance on account of notional interest on these loans - Held that:- From the order of AO and Ld. CIT(A) we have found that it was the contention of assessee that it did not incur interest expenditure for the purpose of making investment out of which the assessee has earned tax free income. Such contention has not been examined by either of them. Therefore, to the extent it relates to disallowance of interest we consider it just and proper to restore this issue to the file of AO with direction to re-examine the disallowance to that extent. So far as it relates to another component which relates to other expenses, we uphold the same. Accordingly, Ground No.2 is partly allowed for statistical purposes.
Addition u/s 36(1)(iii) - interest paid for expansion of existing business has to be to be disallowed - Held that:- Since we are restoring other issues to the file of AO, therefore, in the interest of justice this issue is also restored back to the file of AO for re-adjudication with a direction to give appropriate opportunity to the assessee to bring all facts on records. After bringing all facts on record, this issue will be re-adjudicated by the AO as per law. This ground is treated to be allowed for statistical purposes.
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2014 (2) TMI 1330 - ITAT AMRITSAR
Unexplained cash entry made in its books of account u/s 69 - Held that:- AO in the previous year could not catch the wrongs done by the assessee with the motive to evade tax but it does not mean that if in the previous year, one wrong is continuously coming from the financial year 2001-02 as in the case of the assessee, and at one stage if the Assessing Officer doubted there is evasion of tax, then he/she can call the explanation of the assessee for the assessment year in his/her hand. Nothing is wrong, if the Assessing Officer stop to continue the wrongs committed by the assessee to watch the interest of the Revenue and the negligence of the previous Assessing Officer should not be continued and should be stopped at one stage as has been stopped by the AO in the present case. In our considered view, learned first appellate authority has wrongly deleted the addition without appreciating the facts of the case on hand.
Addition u/s 69C - Held that:- The unsecured loan of ₹ 18,30,000/- shown by the assessee in its balance sheet from some Sh. Ghlam Nabi for the financial year 2005-06 which the assessee has stated to be repaid during the financial year 2006-07 and no credit balance was shown against Sh. Ghulam Nabi for the financial year ending on 31.03.2007. For lack of documentary evidence establishing the identity of Sh. Ghulam Nabi, we hold that the assessee has shown this bogus liability with the intention to evade the tax and has introduced its own money in the books in the garb of unsecured loan. - Decided in favour of revenue
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2014 (2) TMI 1329 - ITAT AMRITSAR.
N.P. determination - rate of NP Adopted - rejection of books of accounts - Held that:- CIT(A) has not given any finding with regard to the applicability of net profit rate by the AO which shows on one hand he accepts the decision of the AO and on the other hand simply by accepting the submission of the assessee that too without confronting to the AO and without asking the remand report of the AO and relying upon the decisions which are comparable or not comparable to the present facts and circumstances of the case, proceeded to apply net profit rate of 6% for the reasons best known to him. In the facts and circumstances, the order of the ld. CIT(A) cannot be accepted and is bad in law in the present facts and circumstances of the case, for the reasons mentioned hereinabove. The order of the ld. CIT(A) is directed to be reversed and that of the AO is restored , who has applied net profit rate of 10% on the gross receipts - Decided in favour of revenue.
Addition being cash credits u/s 68 - Held that:- CIT(A) himself has just accepted the submission of the assessee and that too without confronting to the AO and without calling the remand report of the AO. Thus, the decision of the ld. CIT(A) is against the facts of the case, which in fact, has not been brought on record i.e. whether loans pertain to the impugned year or to the preceding year. It will be in the interest of justice, if the matter is set aside to the file of the AO, who will examine the issue whether the said loans pertain to the impugned year or to the preceding year. Whether the loans are genuine and whether at all, the same can be treated as income under section 68 or not but by providing adequate opportunity to the assessee. AO is accordingly directed to decide the issue denovo as regards the disallowance but by providing adequate opportunity of being heard to the assessee. - Appeal of revenue is partly allowed for statistical purposes.
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2014 (2) TMI 1328 - CESTAT DELHI
Waiver of pre-deposit - Held that: - The stay applications were heard after protracted strategies seeking adjournment and an elaborate order was passed granting waiver and stay, subject to deposits as specified. The order dated 27.11.2013 has not been complied with nor this order varied by a superior Court - appeals are rejected for failure of pre-deposit.
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2014 (2) TMI 1327 - ITAT JAIPUR
Addition on account of unexplained jewellery and silver articles found during the course of search - Held that:- In the present case, it is noticed that the statement of the assessee was recorded during the course of search and the assessee stated that the firm is compendious name for partners and acts through the partners, therefore, the income may be utilized by the partners in the assets of the firm itself. It is not in dispute that the assessee surrendered the income of ₹ 21 lacs in the hands of the firm and claimed that the realization of the stock found short in the firm was utilized for purchasing the jewellery. Nothing is brought on record to substantiate that the amount disclosed by the partners of the firm was utilized elsewhere. Therefore, the benefit of the said surrender was to be given for acquiring the jewellery weighing 2518.20 gms, accordingly the addition to the extent of ₹ 21 lacs made in the hands of the assessee deserves to be deleted.
For the benefit of CBDT instruction No. 1916 for the jewellery found in the locker belonging to the deceased wife of the assessee Smt. Saroj Lashkary and in possession of male members i.e. Shri Shyam Sunder Lashkary and this assessee it is noticed that in the answer to the question No. 26, the assessee categorically stated that the jewellery also include the jewellery of his deceased wife Smt. Saroj Lashkary, therefore, the benefit of 500 gms gold jewellery was to be given on account of jewellery belonging to deceased wife of the assessee, particularly when it was found from the locker which was in her name. Therefore, the jewellery weighing 500 gms should have been treated as explained.
CIT(A) was not justified in denying the benefit to the male members for 100 gms gold jewellery each i.e. to Shri Shyam Sunder Lashkary, father of the assessee and the assessee himself, particularly when the similar benefit was allowed in identical circumstances to other members of the family, therefore in reference to instruction No. 1916 of the CBDT, the benefit of 200 gms gold jewellery is also directed to be given as per the ratio laid down in the case of CIT Vs Kailash Chand Sharma (2004 (7) TMI 647 - RAJASTHAN HIGH COURT)
As regards to the silver articles is concerned, in our opinion, the Ld. CIT(A) was fully justified in deleting the addition by holding that it was customary to receive silver utensils and articles in the marriage and other auspicious occasions, therefore, considering the family status of the assessee, the silver articles found by the searched party was not unreasonable. Appeal of the assessee are allowed.
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2014 (2) TMI 1326 - ITAT CHANDIGARH
Penalty u/s 271(1)(c) - income offered in search - onus on the assessee to prove the income - Held that:- In the case before us, the assessee had offered a sum of ₹ 23 lakhs during search which has not been included in the returned income. Similarly another sum of ₹ 43,25,000/- stated to have received from customers for which no evidence was given. Even in penalty proceedings no explanation has been given in respect of these two items before the Assessing officer or CIT(A) or even before us. The onus was on the assessee to give some explanation to prove that this income is not concealed income. The Hon'ble Supreme Court in case of K.P. Madhusudan Vs. CIT (2001 (8) TMI 8 - SUPREME Court) has clearly held that once a show cause notice is given then onus is on the assessee to give explanation that a particularly item is not income.
CIT(A) has correctly confirmed the penalty and accordingly we confirm his order. - Decided against assessee.
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2014 (2) TMI 1325 - CESTAT NEW DELHI
Clandestine removal - shortage of stock - Held that: - apart from shortages, there is no other evidence on record corroborating the allegation of removal of either the raw material or the final product. In such a case, the appellate authority has rightly held that clandestine activities cannot be proved against the assessee - appeal dismissed - decided against Revenue.
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2014 (2) TMI 1324 - ALLAHABAD HIGH COURT
Non payment of the bills - contract with the Irrigation Department inter alia for the supply of bolders, ropes for labourers and sand bags - Held that: - It is true that there is no absolute bar in entertaining a petition in a contractual matter - The exercise of jurisdiction under Article 226 is not warranted for what the petitioner seeks in essence is a decree in a civil suit which cannot be granted in this proceeding, particularly having regard to the nature of the issues involved - petition dismissed.
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2014 (2) TMI 1323 - ITAT BANGALORE
Eligibility to deduction u/s. 80P(2)(a)(i) - According to the AO assessee was a co-operative bank and therefore the deduction u/s. 80P(2)(a)(i) cannot be allowed - Held that:- The issue raised by the revenue has already been considered and decided by this Tribunal in the case of ACIT, Circle 3(1), Bangalore v. M/s. Bangalore Commercial Transport Credit Co-operative Society Ltd. [2011 (4) TMI 1222 - ITAT BANGALORE] wherein this Tribunal held that section 80P(4) is applicable only to cooperative banks and not to credit cooperative societies. The intention of the legislature of bringing in cooperative banks into the taxation structure was mainly to bring in par with commercial banks. Since the assessee is a cooperative society and not a cooperative bank, the provisions of section 80P(4) will not have application in the assessee’s case and therefore, it is entitled to deduction u/s 80P(2)(a)(i) - Decided in favour of assessee.
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2014 (2) TMI 1322 - BOMBAY HIGH COURT
Whether, having regard to the Plaintiff's case in the suit herein as noted below, the Defendant should be restrained by a temporary injunction (a) from prosecuting its Original Application pending in the DRT at the date of the present suit against the Plaintiff and (b) from taking any step under and/or relying upon the Deed of Indemnity and the Deed of Hypothecation, of which cancellation is sought by the Plaintiff in the present suit?
Held that: - In Nahar Industrial Enterprises case [2009 (7) TMI 1193 - SUPREME COURT], the Supreme Court, relying upon the decision in Indian Bank Vs. ABS Marine Products (P) Ltd. [2006 (4) TMI 472 - SUPREME COURT OF INDIA], held that Sections 17 and 18 of the RDDB Act bar the Civil Court's jurisdiction only in regard to applications by a bank or a financial institution for recovery of its debts. The jurisdiction of Civil Courts is not barred in regard to any suit filed by a borrower or any other person against a bank for any relief. No one has any independent right to approach the DRT without having to wait for the bank or financial institution to approach it first. Though such a person may approach the DRT with his claim by way of a defence of set off or a counter-claim upon being made a defendant in the Bank's OA, the continuance of his claim for set off or counterclaim, as the case may be, is entirely dependent on the application filed by the bank. At any rate, even in such a case the DRT cannot grant any declaratory relief to the claimant or even a decree of cancellation of any document. It is, therefore, clear that this Court has jurisdiction to entertain the Plaintiff's suit and the Plaintiff cannot be compelled to go to the DRT for redressal of its grievances.
The power to restrain a person from prosecuting a pending proceeding can only be exercised (i) for preventing multiplicity of proceedings and (ii) by a court superior to the court in which such proceeding is pending.
The Notice of Motion is, accordingly, dismissed with no order as to costs.
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2014 (2) TMI 1321 - RAJASTHAN HIGH COURT
CENVAT credit - goods manufactured out of common inputs without payment of duty as well as on payment of duty - suppression of facts - Time limitation - Circular dated 30-4-1975 - Held that: - when the respondent-assessee had been furnishing regular returns on monthly basis disclosing therein about clearing goods manufactured out of common inputs without payment of duty as well as on payment of duty, then, there appears to be no suppression of facts with an intention to evade payment of duty - the CESTAT was correct in holding that the demands beyond the normal period of limitation are time-barred and therefore, correctly set aside the submission of the Revenue.
In so far as the subsequent period is concerned, in our view, the CESTAT, after accepting the contention of the respondent-assessee, accepted the offer of the respondent-assessee that they would reverse the entire credit on the common inputs - The assessee, having accepted before the Tribunal to reverse the Cenvat credit as recorded by the Tribunal as regards reversal of the amount involved under such a situation, the High Court held that when the matter has been remanded back to the Adjudicating Authority to redetermine the credit in accordance with law there was no substantial question of law and accordingly dismissed the appeal of the Revenue.
Appeal dismissed - decided against Revenue.
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2014 (2) TMI 1320 - SC ORDER
Commercial coaching or training center – u/s 65(27) – Notification No.33/2011-ST - the decision in the case of M/s Indian Institute of Aircraft Engineering Versus Union of India & Ors [2013 (5) TMI 592 - DELHI HIGH COURT] contested - Held that: - Delay condoned - notice issued.
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2014 (2) TMI 1319 - ANDHRA PRADESH HIGH COURT
Construction and interpretation of essentially two provisions of the Code - Section 372 - Section 378 - offence punishable under Section 138 of the Act of 1881 - victim - acquittal with leave under Section 378(4) Cr.P.C. as per Section 384 read with 385 Cr.P.C.
Held that: - It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the means or sentence legis of the legislature - The victim's right is thus no way controlled by Section 378(4) Cr.P.C. and there is nothing to infer any requirement of leave u/s. 378(4) Cr.P.C. to file appeal under Section 372 Cr.P.C. (against acquittal or conviction of accused for a lesser offence or for inadequate compensation), but for at best to say when against same acquittal two appeals filed one by other than victim under Section 378(4) and one by the victim under Section 372 Cr.P.C. the proper course is to withdraw and call for the matter before the Court of Session to the High Court to decide both at a time by it by common disposal or under Section 381 Cr.P.C. the High Court by special order transmit the appeal before it to the Court of session where other appeal is pending for common disposal, the power of the High Court under section 482 Cr.P.C. in this regard also enables to subserve the ends of Justice and to avoid conflicting findings; like, in case and counter case, and for no such provision even specifically provided like in Section 210 Cr.P.C. of police case and private complaint case.
Time limitation to file appeal for the offence under Section 138 of N.I.Act - Held that: - the period of limitation provided for conviction to appeal under Section 374 Cr.P.C. equally to apply to appeal against acquittal, in case of any confusion from Article 114 and 115 of the Indian Limitation Act regarding different periods of limitation for appeal against conviction and acquittal.
Coming to decide what is the procedure to be adopted for an appeal against acquittal before the Court of Session for not specifically provided for by any of the amended provisions of Cr.P.C., the proviso to Section 372 Cr.P.C. itself by a close reading clarifies to adopt the procedure for appeal against conviction under Section 374 Cr.P.C. before Court of Session as laid down in Sections 380-385, 387-389 Cr.P.C. - legislative silence conveys signals and thus it is the duty of the interpreter to interpret the meaning and for that the interpretation and construction have same effect by identifying the legislative intent as part of duty of the Court since the legislative authorities are functuous officio after the legislation is passed.
In interpreting an Act the proper course is the first instance to examine the language of the Statute and to ask what is the natural meaning influenced by the considerations derived from the previous state of the law and not to start with inquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered to see if the words of the enactment will bear an interpretation in conformity with the view.
The appeal is made over to the Metropolitan Sessions Judge, Visakhapatnam by this Special Order under Section 381(2) read with Section 482 Cr.P.C. either to decide or to made over to any of the Additional Metropolitan Sessions Judge of the Sessions Division to issue Bailable Warrant against the accused-respondent either directing the police or if they file any memo of non-availability of men from such non-availability - appeal disposed off.
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2014 (2) TMI 1318 - DELHI HIGH COURT
Sanctioned Scheme for rehabilitation sanctioned by the BIFR - appeal of the Union of India, through the Railway Ministry, ("Railways") against an order of the Board for Industrial and Financial Reconstruction ("BIFR") concerning certain concessions to be provided by the Railways to Cimmco Birla Ltd. ("CBL") - Held that:- It is undisputed that the DRS was circulated to the Railways, for the purpose of obtaining consent and inviting suggestions/objections. No objections were filed by the Railways. It states today - for the first time since the scheme was sanctioned by the BIFR on 11.3.2010 - that the scheme was circulated to the Secretary, Ministry of Railways and then redirected to the Stores Directorate of the Ministry later (which is the concerned department, it is claimed), by which stage "hardly any time was left for filing of objection". The Railways raises this plea after almost three years of the presentation of the claim by CBL to the BIFR. No such stand was taken before, and in any event, no request for extension of time, let alone an objection taken at any stage of these proceedings before the BIRF, AAIFR, this Court or the Supreme Court in the various rounds of litigation witnessed in this matter. Thus, in terms of Section 19(2), deemed consent of the Railways to Clause 11.6 of the Sanctioned Scheme was taken, and it is accordingly binding on it.
The object and purpose of Section 19 is to enable and garner support - in the form of wide-ranging concessions - by entities with which the sick company conducts business, in this case the Railways, as CBL is a wagon producer and a captive industry that supplies exclusively to the Railways. The argument that Section 19, thus, does not allow for relaxation of tender requirements in incorrect, especially in a case such as the present one, where the concession is narrowly tailored to ensure that the past performance requirement is not prejudicial to CBL only for the period of its closure. Rather than putting CBL at an unfair advantage, Clause 11.6 only requires that the period of closure be excluded from consideration, and the bids be examined competitively in all other respects, for the time.
Given conclusions within the Railways‟ own ranks that Clause 11.6 does not vitiate the tender conditions, and no reasons have been provided to indicate that these concurring legal opinions are incorrect, the Court finds no reason to interfere with the application of Clause 11.6. In any case, Section 32 of the SICA prescribes that the SICA overrides any contrary provisions in any other law, except for the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976, let alone contractual tender conditions or policy guidelines prescribed by the Railways.
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2014 (2) TMI 1317 - TELANGANA AND ANDHRA PRADESH HIGH COURT
Arbitration and conciliation - winding up petition - Held that:- As in Supreme Court in Amalgamated Commercial Trades (P) Ltd Vs.Krishnaswami(A.C.K.) 1965 (1) TMI 16 - SUPREME COURT OF INDIA) wherein it was held that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company, opined that there is no overwhelming public interest to continue the winding up proceedings and deny the opportunity to the parties to settle their dispute through arbitration. The learned single Judge "under the facts and circumstances" referred the dispute to arbitration in view of Clause- 16 of arbitration agreement between the parties.
Interestingly, the learned single Judge has referred to the judgment in Haryana Telecom Ltd (1 supra), but did not explain as to how an order allowing the application under Section 8 of the Arbitration Act could be justified in the face of the dicta laid down by the Supreme Court in the said case.
It is one thing to dismiss the Company Petition on its own merits if the Court feels that there is a bona fide dispute, while it is quite another thing to refer the parties to arbitration on an application made under Section 8 of the Arbitration Act, merely because the debt is disputed.
In the face of the authoritative pronouncements of the Apex Court as referred above, the High Court while dealing with a Company Petition filed under the Companies Act cannot entertain an application under Section 8 of the Arbitration Act and compel the unwilling party to submit himself to the jurisdiction of the Arbitrator.
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2014 (2) TMI 1316 - BOMBAY HIGH COURT
Stay granted in exercise of writ jurisdiction under Article 226 of the Constitution of India - fraud in NSEL - Commission has issued directions for forcing disinvestment of stakes of the Petitioners in MCX - Held that:- As elaborate enquiry has been made by the Commission. Findings of fact of serious nature have been recorded against the Petitioners. The fraud perpetrated is to the tune of ₹ 5,500 Crores. Criminal investigations are in progress. Considering the gravity of the allegations which have been found to be established against the Petitioners, this is not a fit case where prayer for stay can be granted in exercise of writ jurisdiction under Article 226 of the Constitution of India. Accordingly, prayer for interim relief is rejected. Hearing of the Petition is expedited.
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2014 (2) TMI 1315 - SC ORDER
Refund/rebate of duty - the decision in the case of Kanha International Versus Union of India [2013 (7) TMI 1089 - GUJARAT HIGH COURT] contested, where it was held that The petitioner cannot be permitted to re-agitate the question/issue which has been settled/adjudicated earlier, on making representations one after another - Held that: - the decision in the above case upheld - appeal dismissed.
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2014 (2) TMI 1314 - SC ORDER
Jurisdiction - action of issuing summons - petitioner is a foreign national residing in U.K. - the decision in the case of Bhupendra Madlani Versus Union of India [2013 (2) TMI 832 - BOMBAY HIGH COURT] contested, where it was held that there are no findings and no interference is called for in writ jurisdiction under Article 226 of the Constitution of India - Held that: - the decision in the above case upheld - SLP dismissed.
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2014 (2) TMI 1313 - CESTAT, CHENNAI
Penalty - Activity of pumping RMC - adjudicating authority considered that the disputed service was newly brought into tax net and there was confusion about the scope of the relevant entry and hence waiving of penalty was justified - Held that: - when the demand for tax itself is not sustainable, there cannot be a penalty imposed on the same matter - penalty set aside - appeal allowed - decided in favor of appellant.
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