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Showing 21 to 40 of 1244 Records
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2014 (8) TMI 1226 - ALLAHABAD HIGH COURT
Classification of goods - rate of tax - after water proofing compound and construction material imported by the dealer - Whether liable to tax @ 4% as chemical and not as unclassified item? - section 59 of U.P. Value Added Tax Act - HELD THAT:- It is not in dispute that Excise Code of Acrylic Polymers under the Central Excise Tariff Act, 1985 is 3906000 and the applicant department has also given the very code number to the product falling under Entry No. 162 of Part-C of Schedule IInd to the Act. On this basis, the tribunal has recorded a finding that product has to be accepted as the goods under Entry No. 162. The contention of the assessee was rejected by the Assessing Officer on the ground that this product is only a water proofing / construction chemical. The Tribunal has also recorded a finding of fact that there is no denial of the claim of the appellant that bye products of Acrylic Polymer are included in entry “Polymer in primary form” with main code 3906000.
So far as the other commodity i.e. “CICO Super Plast” is concerned, the case of the assessee is that this commodity is used as water reducing agent and as reaction accelerator for giving extra strength to the concrete after its use and as such this is chemical falling under Entry 29 of Part A of Schedule IInd to the Act. The assessing authority treated this commodity as “Water Proofing Compound and Construction Chemical” - there are no infirmity in the findings of facts recorded by the Tribunal. The applicants have not shown any perversity in the findings of fact recorded by the Tribunal. Under the circumstances the matter is concluded by findings of fact. The tribunal has rightly held that the aforesaid two products are liable to tax @ 4%.
Revision dismissed.
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2014 (8) TMI 1225 - ITAT MUMBAI
Set off the Short term Capital Loss (transactions with STT paid) against the Short term capital gain (transactions without STT paid) - HELD THAT:- We have heard the arguments and have perused the orders of the revenue authorities and the cases cited before us. The impugned issue has been the subject matter of dispute before various coordinate Benches of the ITAT and coordinate Benches have consistently interpreted the provisions of section 111A in favour of the assessee. Respectfully, therefore, following the decisions already in place and with identical facts in hand, we do not find any reason either to distinguish the cases cited before us or to disturb the findings of the CIT(A) on the impugned issue. See FIRST STATE INVESTMENTS (HONGKONG) LTD. VERSUS ASSISTANT DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION), MUMBAI [2009 (7) TMI 908 - ITAT MUMBAI] - Decided in favour of assessee.
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2014 (8) TMI 1224 - ORISSA HIGH COURT
Implementation of Revised Rehabilitation Scheme sanctioned by BIFR - import and implication of concessions envisaged by BIFR at clause 8 of page 7 of the Modified Scheme - Petitioners' case is that the concession envisaged is for the entire period of rehabilitation from 1.7.1995 to 30.6.2002 whereas opposite parties insist that IPISTEEL is entitled to concession there under whenever there was electrical break-down during the rehabilitation period - HELD THAT:- Considering the contentions raised by IPISTEEL to the effect that CESCO has not been properly interpreting the reliefs as contained in clause 8 of page 7 of the Scheme at Annexure-1 and also in para 5(i) and 5(ii) of the order at Annexure-3, the Secretary was directed to issue clarificatory letter. Authenticity of Note Sheet of BIFR is not in question. By the order passed in the Note Sheet, neither the Scheme nor any earlier order has been reviewed or modified. The view expressed in the Note Sheet to the effect that reliefs envisaged at clause 8 of page 7 of the Scheme at Annexure-1 is for the entire period of rehabilitation and not restricted to the periods pertaining to power cut/break-down only has been reiterated and ratified by order dated 17.4.2007 at Annexure-12 reproduced above, by observing that as there was, prima facie, an ambiguity in respect of the reliefs and concessions envisaged from CESCO in clause 8 of page 7 of the Scheme at Annexure-1, the Bench directed, on file, to issue a clarification to CESCO stating inter alia therein that the reliefs as contained in the said para of the Scheme at Annexure-1 would not be restricted only to the break-down period(s) and would be for the entire rehabilitation period. Thus, in course of review hearing, M/s. IPISTEEL Ltd.(IPISL) held on 17.4.2007 at Annexure-12, it has been held that reliefs and concessions envisaged at clause 8 of page 7 of the Scheme at Annexure-1 would not be restricted only to the break-down period(s).
Otherwise also, in order to understand the import and implication of the reliefs and concessions envisaged at clause 8 of page 7 of the Scheme at Annexure-1, a reference may be made to the observations of the BIFR in the Scheme on the basis of which specific reliefs and concessions were granted. While dealing with BACKGROUND at page 2 of the Scheme it has been observed that IPISTEEL failed to make payments as per the OTS mainly in view of non-compliance of various conditions of the BIFR approved scheme by the Government of Orissa, poor profitability arising out of frequent mechanical break-down at the mill and non-availability of need-based working capital funds from the banks - it appears that there is no reference to 'electrical breakdown'. Rather the Scheme refers to frequent 'mechanical breakdowns' as one of the factors which rendered the IPISTEEL sick. In such circumstances, there is no scope to restrict the meaning of words 'break-down/rehabilitation' as used in clause 8 of page 7 of the Scheme to the period of electrical breakdown only.
None of the reliefs and concessions envisaged from CESCO being confined to the period of electrical breakdown only and in the absence of any reference to "electrical breakdown" as pointed out above, there is no scope to restrict the period of reliefs and concessions envisaged under clause 8 of page 7 of the Scheme to the period of electrical breakdown only - Petition allowed.
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2014 (8) TMI 1223 - ITAT PUNE
Allowable revenue expenditure OR capital expenditure - expenditure incurred for constructing the “Express Feeder” on behalf of Maharashtra State Electricity Board (‘BSEB’) - said expenditure was incurred to get uninterrupted supply of power necessary for carrying of manufacturing activity. Even, it was treated as capital as per Audit, the assessee has claimed to have entitled for the same as revenue expenditure - HELD THAT:- We find that the Hon’ble Delhi High Court in the case of CIT vs. Dart Manufacturing India (P) Ltd. [2008 (8) TMI 19 - HIGH COURT DELHI] has held that the payment to State electricity board for installing a transformer and LT Lines for supply of electricity – Ownership of the transformer and the LT Lines remained with the electricity board and the fixed capital structure of the assessee remained untouched – Expenditure incurred by the assessee allowable as revenue expenditure as following the decision of CIT vs. Saw Pipes Ltd. [2007 (1) TMI 101 - DELHI HIGH COURT] wherein the expenditure on laying electric service lines for new unit and that may be enduring advantage but intended to enable the assessee to carry on its business more efficiently and profitably leaving the fixed capital untouched. In such situation, the expenditure was allowed as revenue expenditure.
Thus we are of the view that the expenditure incurred for construction of “Express Feeder” on behalf of Maharashtra State Electricity Board was deductible as revenue expenditure. - Decided in favour of assessee.
Disallowance of additional depreciation on Racks, Trolley, D.G. Set, Air Conditioner for Machinery, Cooler, Refrigerator, Camera, Computer Attendance Card System, Wall Mounting fans and Electrical fittings - deduction shall not be allowed in respect of the plant which was previously used within or outside India by any other person, machinery or plant installed in any office premises or any residential accommodation including in the nature of guest house, any office appliance or road transport vehicles or any machinery or plant, the whole of the cost of which is allowed as deduction by way of depreciation or otherwise - HELD THAT:- Applying the tests laid down by the Hon’ble Supreme Court in Scientific Engeering House Pvt. Ltd. [1985 (11) TMI 1 - SUPREME COURT] to the facts in the instant case, it could be said that the fans installed in the administrative office of the assessee constituted plan and machinery for the purpose of granting depreciation u/s.32 of the Act. We also find that in the case of CIT vs. Delhi Air Port Service [2001 (9) TMI 39 - DELHI HIGH COURT] has held that air conditioner fixed in a bus is an integral part of the bus and therefore depreciation on such air conditioner is allowable at the rate applicable to the bus. In the case of CIT vs. Nathubhai H. Patel [2005 (11) TMI 49 - GUJARAT HIGH COURT] the Hon’ble Gujarat High Court has held that air conditioner and fans in the clinic are entitled to additional depreciation. - Decided in favour of assessee.
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2014 (8) TMI 1222 - SUPREME COURT
Cruelty - continuing offence or not - whether the allegations made in the F.I.R. constitute a continuing offence? - HELD THAT:- It is found from the F.I.R. that all the incidents alleged by the complainant in respect of the alleged cruelty are said to have occurred at Delhi. The cruel and humiliating words spoken to the 2nd Respondent/wife by her husband, elder brother-in-law and elder sister-in-law for bringing less dowry are said to have been uttered at Delhi. Allegedly, arbitrary demands of lakhs of rupees in dowry have been made in Delhi. The incident of beating and dragging the Respondent No. 2 and abusing her in filthy language also is said to have taken place at Delhi.
The offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon the Respondent No. 2 "continued unabated" on account of no effort having been made by the Appellants to take her back to her matrimonial home, and the threats given by the Appellants over the telephone. It might be noted incidentally that the High Court does not make reference to any particular piece of evidence regarding the threats said to have been given by the Appellants over the telephone - it cannot be held that the Court at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said offence.
The appeal is allowed.
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2014 (8) TMI 1221 - ITAT CHENNAI
Assessment of trust - surplus distributed among the members - whether 95% of surplus of the assessee trust distributed among its members can be brought to tax at maximum marginal rate in the hands of the assessee treating the assessee as AOPs? - HELD THAT:- The co-ordinate Bench of this Tribunal in SARVODAYA MUTUAL BENEFIT TRUST [2013 (11) TMI 1270 - ITAT CHENNAI] and upheld the order of CIT (A) in holding that 95% of surplus distributed among the members is not liable to be taxed.
The share of every beneficiary is quantified. Therefore, we find that the Commissioner of Income-tax(Appeals) is justified in coming to the conclusion that the assessee trusts and the SHGs are inter-related and they are all concerns governed by the principles of mutuality. The 95 per cent surplus distributed by the assessee trusts to the various SHGs working under them is nothing but the income of those SHGs themselves. It is not something that those groups are getting from outside by way of income. It is the fruit of their efforts. After finalising the accounts and computing the surplus, the profits are divided among those members, whose shares are determinate and whose roles are well defined.
We endorse the view of the CIT (Appeals) that all these SHGs working under the assessee trusts are concerns governed by the principles of mutuality and accordingly the 95 per cent of surplus distributed among them are not in the nature of income. The Commissioner of Income-tax(Appeals) has rightly held that 95 per cent of the surplus distributed by the assessee trusts cannot be brought to tax. His orders on this point are confirmed and the grounds raised by the Revenue on this point are rejected.
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2014 (8) TMI 1220 - SUPREME COURT
Partition of suit property - Whether the plaintiff No. 1 and defendant Nos. 10 to 17 are entitled for partition of the suit schedule properties as they have been excluded from the possession of the properties by ouster by the sons of deceased Valli namely, Kunhan and Ayyappan for more than 50 years from the date of her death? - whether they have lost their right by adverse possession of the defendant Nos. 1 to 9 by ouster and their claim is barred by limitation? - HELD THAT:- The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the doctrine of adverse possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognised by the doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one’s own rights over property is also capable of being called a manner of “dealing” with one’s property which results in extinguishing one’s title in property and vesting the same in the wrongdoer in possession of property and thus amounts to “transfer of immovable property” in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section.”
The High Court held that the daughters of Valli alone would be entitled to the suit properties but the Trial Court has held on the basis of evidence on record that they were excluded from possession by their brothers for more than 50 years from the date of death of Valli. Hence, their rights, if any, are lost by adverse possession and by ouster and their claim is barred by limitation.
In the absence of averments in the plaint regarding custom followed in the marriage of the daughters of Valli and that their marriage was not in Kudivaippu form therefore, can their rights be excluded upon the suit schedule properties of Valli as per customs prevalent in their community under the Hindu Law? - HELD THAT:- In the absence of evidence on record to show that they were not ousted from possession from the suit schedule properties and that they have been in joint possession of the same with their deceased brothers during their life time and thereafter with their legal representatives as the co- sharers, the finding of fact recorded by the Trial Court on this aspect of the case cannot be disputed with. The defendant Nos. 1 to 9 have stated that the daughters of deceased Valli were married in the Kudivaippu form. However, they have failed to prove the same. However, the Trial Court has recorded its finding on the contentious issue No. 4 in favour of the defendant Nos. 1 to 9 on the basis of undisputed facts and evidence on record, it has rightly held that the above defendants have perfected their title to the suit schedule properties by way of adverse possession by ouster of the plaintiff No. 1 and defendant Nos. 10 to 17 from the said properties, which finding of fact is accepted by us by recording our own reasons in this judgment - the daughters of Valli are excluded from their rights upon the suit schedule properties of Valli and are not entitled for the share as claimed by them in their suit.
Whether the partition deed (Ex.-B1) in the year 1953 is binding between the deceased Kunhan and Ayyappan in view of the litigation between them as per documents (B-2 to B-4) in respect to the suit schedule properties of Valli? - HELD THAT:- This point is also required to be answered in favour of defendant Nos. 1 to 9 - There was litigation between the fathers of the defendant Nos. 1 to 9 in relation to the said partition, no doubt, the father of the defendant Nos. 8 and 9 failed in the aforesaid civil litigation as per the documentary evidence-Exs.-B2 to B4. Therefore, the same is binding on the father of defendant Nos. 8 and 9.
Whether the plaintiff Nos. 2 to 4 are entitled for their share in the suit properties? - HELD THAT:- The defendant Nos. 1 to 9 placing reliance upon the purchase certificates Exs.-B5 and B6 have no relevance to the fact situation. Therefore, the plea urged by them in this regard is wholly untenable in law for the reason that they are neither cultivating tenants nor deemed tenants of the suit schedule properties as there is no evidence produced by them in this regard in the Original Suit. Therefore, the purchase certificates which were obtained by their deceased fathers from the Land Tribunal have no relevance to the facts of the case.
Appeal allowed.
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2014 (8) TMI 1219 - ITAT HYDERABAD
Accrual of income - Assessment of accrued interest brought to tax - A.O. calculated interest on the advances given for the year on the number of days for which the temporary advance was given and brought such amounts to tax on accrual basis - A.O. computed interest on these advances at 18% because the company made a claim on M/s. SCSL for repayment of these advances along with damages claimed at 18% p.a. from the date of advance - HELD THAT:- As in assessee’s own group of cases for the A.Y. 2010-2011 unless and until the liability to pay the advances and the rate of interest at which the temporary advances are to be repaid is determined by the Civil Court, it cannot be said that the same has accrued or arisen to the assessees. However, if the assessees had advanced interest bearing funds as interest free advances, the interest paid by the assessees towards such borrowed funds would have to be disallowed and treated as the income of the respective assessees.
The Hon’ble Punjab and Haryana High Court in the case of Abhishek Industries [2006 (8) TMI 123 - PUNJAB AND HARYANA HIGH COURT] has held that the nexus between the interest bearing funds and the interest free advances will have to be proved before making the disallowance of interest and bringing it to tax. We find that neither the Assessing Officer nor the CIT(A) has examined the issue from this angle. Therefore, the orders of the CIT(A) and the Assessing Officers are set aside and the issue is remitted to the file of the Assessing Officer of the respective assessees for de novo consideration in the light of our observations above - if the amounts advanced to M/s. SCSL by the respective assessees are from their own funds, then the interest expenditure cannot be disallowed and brought to tax.
Thus we remit the matter back to the file of the A.O. to decide it denovo. Appeals of the Revenue are allowed for statistical purposes.
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2014 (8) TMI 1218 - CHHATTISGARH HIGH COURT
Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - HELD THAT:- In order to attract the penal provisions under the N.I. Act "debt or other liability" must be a "legally enforceable debt or liability". If the said instrument is not supported by consideration, there is no question of attracting Section 138 of the N.I. Act.
Section 138 of the N.I. Act treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The Explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque - The very fact that the Respondent has taken repossession of the vehicle and has also sold the said vehicle and the sale value of the said vehicle has also been adjusted for meeting the loan repayment, the agreement on the basis of which the postdated cheques were issued cannot be put for clearance for the reason that the Respondent by virtue of the two acts on their part; firstly, of taking possession of the vehicle and, secondly, of sale/auctioning the said vehicle, stood determined. Therefore, the cheques which have been subsequently put for clearance and got dishonoured would not fall within the ambit of legally enforceable debt or other liability.
The Petition under Section 482 of CrPC is allowed and the complaint case initiated by the Respondent against the Petitioner deserves to be and is hereby quashed.
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2014 (8) TMI 1217 - DELHI HIGH COURT
Validity of Revision order u/s 263 - 100% depreciation on the purchase and lease back arrangement - as per tribunal Section 263 is not applicable to the facts of the present case - Whether the Tribunals view relating to Explanation 3 to Section 43(1) and Explanation 4-A to the said Section is correct? - HELD THAT:- Question of genuineness of the transaction was examined by the Assessing Officer and it was highlighted that the transaction was between two unrelated parties and the assessee had to purchase the assets by payment of a substantial amount. Therefore, it was pleaded, there was no question of over valuation of the assets and it was highlighted that the seller company would have suffered or paid tax as the capital gains on the sale of assets, on which, depreciation had been claimed by the purchaser assessee.
Even the claim of 100% depreciation did not result in reduction of tax liability as over a duration of lease, ₹ 174.69 lakhs was to accrue as income by way of these rentals as against claim of depreciation of ₹ 150 lakhs. It is therefore clear that the Assessing Officer, when he raised the said queries had in mind Explanation 3 to Section 43(1) of the Act and whether or not, the same should be applied in the facts of the present case.
Tribunal, in the impugned order, has rightly observed that in view of the correspondence and reply given by the assessee, the Assessing Officer had required the assessee to file details with regard to the claim of the depreciation and justify the same. The assessee had supplied with said information and justified the claim for said depreciation. Apparently, the Assessing Officer was fully satisfied with the said explanation offered by the assessee including why Explanation 3 to Section 43(1) of the Act should not be invoked. In these circumstances, we do not think, the finding of the Tribunal by relying up the judgment of the Supreme Court in Malabar Industrial Co. Ltd [2000 (2) TMI 10 - SUPREME COURT] can be faulted. The present case is not one of no enquiry, but at best the revenue can plead and claim that it was a case of insufficient or inadequate enquiry as alleged. This aspect was examined by the Delhi High Court in CIT Vs. Sunbeam Auto Ltd.[2009 (9) TMI 633 - DELHI HIGH COURT] and on the aspect whether power under Section 263 can be exercised for further detailed or full verification
It is an acceptable position that explanation 4A to Section 43(1) would not apply to the year in question, as it was inserted by the Finance (No. 2) Act, 1996 w.e.f. 1.10.1996 - the questions of law are answered in favour of the respondent-assessee
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2014 (8) TMI 1216 - ITAT PUNE
Validity of Rectification u/s 254 - Non service of notice of hearing on the respondent-assessee - denial of natural justice - no opportunity of being heard - HELD THAT:- It was obligatory on the part of the Income-tax authority to effect service of notice of hearing on the assessee since the service could not be effected by post at the address given by the revenue in the memorandum of appeal. Tribunal was therefore well within its powers to direct the Income-tax department to effect service on the assessee particularly since the department, as an executive organization is well equipped with the requisite staff strength of Notice Server, Income-tax Inspector etc. for the purpose of serving various statutory notices on the tax payer. Since the revenue has shown apathy with regard for serving the notices of hearing on the respondent assessee Revenue has also not made any request to get the notice served by alternate way i.e., by way of publication etc. which is laid down in rule 20 of CPC.
Tribunal can take help on procedural aspect as laid down under relevant provisions of the Civil Procedure Code where Income-tax Act and rule thereunder are not able to meet particular situation. This view is fortified by ratio laid down in the case of M.K. Mohammed Kunhi [1968 (9) TMI 5 - SUPREME COURT] wherein it has been held that Tribunal has power identical to appellate court under C.P.C.Once revenue is not able to get exact address of assessee, how it will follow the same, in case matter is decided in favour of revenue. In the facts and circumstances of the case, we have no alternative but to dismiss the appeal.
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2014 (8) TMI 1215 - ITAT CHENNAI
Revision u/s 263 - Reopening of assessment u/s 147 - HELD THAT:- CIT issued 263 show cause notice on 13.3.2014. It transpires that the CIT’s show cause notice is not within two years from assessment order dated 28.12.2006. It does not satisfy the basic condition stipulated in section 263(2) of the Act which envisages that no order u/s 263(1) shall be made after the expiry of two years from the end of financial year in which the order sought to be revised was passed.
We draw support from case law CIT vs ICICI Bank Ltd [2012 (2) TMI 308 - BOMBAY HIGH COURT] wherein similar facts and circumstances are involved as reopening in question did not contain the issue raised in section 263 proceedings. Therefore, we hold that the CIT’s assumption of jurisdiction u/s 263 of the Act is beyond the time limit specified under the provisions of the Act. Thus, the CIT’s order is not sustainable. As we have accepted the assessee’s grounds on legality itself, we do not deem it appropriate to deal with the merits involved in this appeal. Assessee’s appeal is allowed.
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2014 (8) TMI 1214 - COMPANY LAW BOARD CHENNAI BENCH
Oppression and mismanagement - seeking transfer of equity shares to enhance the holding to 45% without insisting upon to execute personal guarantee in favour of KSFC - seeking directions from this Bench to the respondents to purchase the petitioner's entitlement of 45% equity shares out of respondent company's total equity shares determined by the Independent Valuer - HELD THAT:- It is not a case fall under the definition of section 397 and 398. From the pleading and document it is evident that the respondents have fulfilled their obligation in implementing the compromise petition. The petitioner has failed to substantiate that how he is entitled to 45% of the equity share, without fulfilling the terms and condition as mentioned in the compromise petition. It is only an understanding between the panics that the petitioner will be entitled to 45% of the equity shares.
The contention of the petitioner that this Bench appointed valuer on the basis of joint memo filed by the parties to determine the value of equity shares of the Company for considering the petitioners claim under relief 18.3 (viii). It is only a claim made by the petitioner, but the petitioner's entitlement to 45% of the equity shares in the company has not been determined by any court or authority. Admittedly the petitioner is holding 25,00,000 equity shares constituting 17.5% of the shares. Even on the merits of the case, the petitioner failed to fulfil the obligation on his part and for that reason me petitioner cannot put, blame on the part of the respondents. The petitioner has filed the present petition by invoking Section 397/398 and 402 of the companies Act, 1956 alleging certain acts of oppression and mismanagement in the affairs of company. From the pleading and document, the petitioner has not made out any case either on oppression or mismanagement in the affairs of the Company. On the other hand the R1 Company is a going concern and performing very well. There is no dispute or denial that the respondent Company under the leadership of board of directors and assisted by the top level management team have a good corporate governance.
It is a well settled law that even an isolated act cannot be construed an act of oppression and mismanagement. In this case even the averments, grounds and reliefs do not constitute any oppression and mismanagement in the affairs of the Company by the respondents.
The petitioner has not made out any case either on oppression or mismanagement and the petition has miserably failed and liable to be dismissed - Petition dismissed.
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2014 (8) TMI 1213 - ORISSA HIGH COURT
Dishonor of Cheque - territorial jurisdiction - accused resides beyond the territorial jurisdiction of the concerned Magistrate - non-conduct of mandatory enquiry under Section 202 Cr.P.C. before issuing process to the accused - HELD THAT:- The object of the provisions of Section 202 Cr.P.C. is to enable the learned Magistrate to form an opinion as to whether process should be issued or not - The enquiry envisaged under Section 202(1) Cr.P.C. is only for finding out whether or not there are sufficient grounds for proceeding against the accused. Therefore, if on the existing materials, it is not possible for the Magistrate to take cognizance of the offence, he can direct an enquiry under Section 202 Cr.P.C. However, if the materials existing are sufficient, there is no impediment for the Magistrate to take cognizance of the offence and issue process against the accused, without holding any such enquiry.
In the present case, the complainant has filed the complaint along with the relevant documents, including the original cheque, document with regard to the return of the same as dishonoured by the drawee bank, notice issued by the complainant to the accused, documents showing receipt of the same by the accused and the initial statement in form of affidavit in support of the allegations made in the complaint. Learned Magistrate has duly considered the said materials on record in taking cognizance of the offence under Section 138 N.I. Act and directing issuance of process to the accused-petitioner.
In A.C. Narayanan v. State of Maharashtra [2013 (9) TMI 948 - SUPREME COURT], the Hon'ble Supreme Court while dealing with the question whether the proceeding contemplated under Section 200 Cr.P.C. can be dispensed with in the light of Section 145 of the N.I. Act, which was introduced by way of amendment in the year 2000, has observed that In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.
There are no infirmity in the impugned order of the learned Magistrate taking cognizance of the offence under Section 138 N.I. Act and directing issuance of process to the accused-petitioner, so as to warrant any interference - appeal dismissed.
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2014 (8) TMI 1212 - MADRAS HIGH COURT
Claim of deduction from the total turnover - Rejection on the ground that though sales tax was not charged separately, the bills revealed that the dealer had charged the cost of goods including sales tax and not collected tax separately and in terms of Explanation (1-A) to Section 2 (r) of the Tamil Nadu General Sales Tax Act, 1959 - Whether on the facts and in the circumstances of the case the Tribunal was right in law in explaining the scope of (1-A) of Section 2 (r) of TNGST Act that if sale price is shown in the books of accounts, it is sufficient to get deduction amounts even though the sale invoice contains lump sum amount inclusive of tax without charging the tax elements separately?
HELD THAT:- In this case, admittedly, the respondent/assessee had raised a common ground that the form of the sale bill adopted by them is uniform all over India and the rate of sale is inclusive of all taxes. The sale bill mentions the sale price as inclusive of all taxes. It was further pleaded by the assessee that the assessee had maintained details of the sale, i.e., value of goods and tax paid separately in their account books. They are therefore entitled to the benefit of exclusion of tax component from the total turnover even in terms of Rule 5-B (a) of the TNGST Rules - in the explanation, the intentment of the statute is that any amount charged by the dealer by way of tax separately, without including the same in the price of the goods bought or sold, shall not be included in the turnover. This is to mean that tax collected will not be included in the turnover. There is no specification or indication in Explanation (1-A) that tax collected should be shown separately in the bill and only then it shall be excluded in the turnover.
Revision dismissed.
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2014 (8) TMI 1211 - BOMBAY HIGH COURT
Maintainability of appeal - HELD THAT:- The appeal was admitted on substantial questions of law - The Registrar (Judicial)/Registrar, High Court, Original Side, Bombay to ensure that the original record in relation to this Appeal is summoned from the Tribunal and offered for inspection of the parties. This paper book is treated sufficient for the purpose of admission of this Appeal. However, the Registry must further ensure preparation of complete paper book in accordance with the Rules.
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2014 (8) TMI 1210 - SUPREME COURT
Seniority of the Appellant vis-à-vis Respondent No. 4 - Treatment in the category of 'Trained Graduate Teachers' on being B. Ed. degree (to respondent no. 4) - Appellant had joined the said school as Assistant Teacher before Respondent No. 4 and was senior to him in the post of Assistant Teacher - whether it is the Appellant who is senior to Respondent No. 4 or it is Respondent No. 4 who is senior to the Appellant?
HELD THAT:- The position which emerges is that for appointment of a Primary Teacher, the qualification that is stipulated in Schedule-B is that he or she should have passed S.S.C. examination or matriculation examination or lokshala examination or any other examination recognised as such by Government and the Primary Teachers Certificate examination or Diploma in Education examination, or a Diploma in Education (per-primary of two years' duration). Thus, among various alternate qualifications which are prescribed for appointment to the post of Primary School Teachers, one of the prescribed qualification is Diploma in Education Examination (D. Ed.). Therefore, a person holding this qualification would be treated as satisfying the qualification stipulated in Rule 6. As a consequence, he would be treated as 'Trained Graduate', as defined in Rule 2(1)(j), which means a person possessing the qualifications mentioned in Sub-clauses (i) to (vi) of Clause (1) of item II in Schedule "B".
The Appellant was having the requisite minimum qualification for appointment to the post of Assistant Teacher in the Primary School and it was not a case of appointment of an unqualified teacher when the Appellant was appointed to the said post on 24.08.1979 - In the present case, when it is found that the Appellant was qualified to be appointed as Assistant Teacher in Primary School on the date of his appointment, acquisition of higher qualification at a later date, even when such a higher qualification is requisite qualification for the higher post, will not be determinative for fixing the seniority.
In the case at hand there is a specific Rule, namely, Rule 12 of the Rules, which deals with seniority. The clear and unambiguous criteria for determining seniority is the continuous officiation counted from the date of acquiring the educational qualification as prescribed under Schedule "B". It is stated at the cost of repetition that since the Appellant was holding the requisite qualifications, i.e. D. Ed., for appointment to the post of Assistant Teacher in Primary School, as prescribed under Schedule "B" to the Rules, her seniority was to be counted on the basis of continuous officiation. Since she joined the post of Assistant Teacher on 24.08.1979 and Respondent No. 4 came to be appointed subsequently, i.e. on 01.09.1980. The Appellant would naturally be senior to Respondent No. 4.
A direction is issued to appoint the Appellant as Head of the School by replacing Respondent No. 4 therefrom - Appeal allowed - decided in favor of appellant.
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2014 (8) TMI 1209 - MADRAS HIGH COURT
Exemption u/s 11 - Denial registration under Section 12AA - whether registration can be granted to the trust with both charitable and religious objects? - HELD THAT:- The issue involved in this appeal is covered by a decision of this Court M/S. SEERVI SAMAJ TAMBARAM TRUST [2014 (2) TMI 32 - MADRAS HIGH COURT] wherein this Court, following the decision of this Court reported in Arulmighu Sri Kamatchi Amman Trust [2012 (2) TMI 159 - MADRAS HIGH COURT] dismissed the appeal filed by the Revenue holding that the Revenue would not be justified in refusing the grant of registration at the threshold.
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2014 (8) TMI 1208 - CALCUTTA HIGH COURT
Seeking discharge their obligation in terms of the provisions of SARFAESI Act of handing over possession of a secured asset to the petitioners which had been put up for sale by auction and has since been purchased by them - bid money received and sale certificate issued, but possession not transferred - HELD THAT:- There cannot be any doubt that in relation to a property [which is a secured asset within the meaning of section 2(zc) of the SARFAESI Act and is put up for auction for recovery of the secured debt of the secured creditor in terms of the provisions thereof] occupied by persons either in the capacity of an owner or as a tenant or as a lessee, such occupation would amount to an intrusion on the property and if it is for the auction purchaser to get rid of those occupants after the sale is effected to have vacant physical possession thereof according to law, the value that such property would fetch in auction is likely to be lesser compared to a situation where the selfsame property is put up for auction, free of occupants.
In the event a public auction of an immovable property is conducted on as-iswhere- is-basis, a prospective purchaser would not in the normal run of events participate in the auction without utilising the opportunity of inspection of the property. He would bid in the auction bearing in mind the existing situation, position and condition of the property. If the property is encumbrance free (includes the nonoccupancy factor) and amenities attached thereto are to his liking, most certainly he would offer a higher amount. The offer would most certainly be on the lower side, should the property be encumbered (occupied) or suffer from any disadvantages. In case the property is not to his liking, he is free not to participate in the auction. Once with open eyes he participates in the auction, he cannot expect a better deal that he was not assured of on the day he offered his bid - If an encumbrance exists, say the secured creditor has only been in symbolic possession with the borrowers in actual possession of the secured asset, and the prospective purchaser bids with full knowledge of such encumbrance, it is not open to him after the sale certificate is issued to contend that it carries with it the duty of the secured creditor to put him in actual possession of the secured asset. There is no reason as to why the principle of 'caveat-emptor' shall not apply in such a situation.
The respondents do not owe a duty to hand over vacant and peaceful physical possession of the secured asset to the petitioners and making a direction in this behalf does not arise - Petition dismissed.
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2014 (8) TMI 1207 - ITAT BANGALORE
Disallowance of advance write off and deposit write off - HELD THAT:- The claim of assessee is that it represented additional custom duty deposited by M/s IBM Ind. Pvt. Ltd., which was found to be not recoverable subsequent to acquisition of business from M/s IBM Ind. Pvt. Ltd., However, nothing has been brought on record by the assessee to show that the additional customs duty deposited by M/s IBM Ind. Pvt.Ltd., was not on capital account, but on trading account only. Assessee also did not furnish the agreement relating to global transfer of business between M/.s IBM and M/s Lenovo. There was no evidence as to which products were imported by M/s IBM Ind.,Pvt Ltd., on which the additional customs duty was deposited by it. Assessee had simply effected a write off and failed to support its claim for allowance under the IT Act. CIT(A) has specifically mentioned in its order that even before him the assessee could not file any record proving the character of the write off. In such circumstances, we are of the opinion, that disallowance was rightly sustained by the CIT(A).
Write off of service tax - What we find is that the list of invoices placed at page no.109 to110 does not show the nature of the purchases made by the assessee from M/s IBM Ind.Pvt.Ltd., Assessee could have very well bifurcated the nature of in-put at the stage of purchase itself, viz, what would be the items that would go to manufacturing section and what would be the items that would go to trading segment. Once such a bifurcation is made it will not be necessary to divide the service tax paid on purchase from M/s IBM based on total turnover. Nevertheless, there is substance in the argument of the assessee that it could never claim any service tax credit against service tax paid on items which were intended for trading. Additional evidence filed by the assessee in the nature of service tax return can, in our opinion, be taken up for consideration, since it is a statutory record. Nevertheless, in order to ascertain the amount that the assessee can legitimately claim a write off from the total service tax paid, a thorough verification by the AO is required. We therefore, set aside the issue regarding the claim of write off of service tax back to the file of the AO for consideration afresh in accordance with law.
Disallowance of marketing support and transition fee - Disallowance by the AO for the reason that the expenditure was incurred by the assessee for retaining the customer/dealer base of M/s IBM Ind.Pvt.Ltd., which resulted in acquiring an enduring benefit - HELD THAT:- Co-ordinate Bench of the Tribunal has allowed the claim of the assessee for assessment year 2006-07 services rendered by IBM are for smooth and efficient carrying on the business of the assessee for a period of 5 years. This might give an enduring benefit to the assessee but every activity which given enduring benefit to the assessee would not get the character of capital nature. It has been held by the various high courts in a catena of decisions that the enduring benefit is not the only criteria to decide the nature and character of expenditure. The necessary test is whether it is for acquisition of any capital asset or for the purpose of carrying on the business, deriving revenue from it. The marketing support services cannot however be considered as acquisition of a capital asst. The support services are for the purpose of sale of the products manufactured by the assessee and, therefore, it is clearly established that it is for efficient running of the business and deriving revenues therefrom. In such circumstances, we are inclined to hold that the fees paid by the assessee for marketing support services rendered by IBM is clearly revenue in nature and is allowable as deduction u/s 37. - Decided against revenue.
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