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2015 (2) TMI 1407 - PUNJAB & HARYANA HIGH COURT
Impleadment of a party to the suit - Suit for specific performance of contract - HELD THAT:- Freshly impleaded defendant-applicant (respondent No.2 herein) has claimed to be owner of the property in dispute by way of purchase in public auction held by the Debts Recovery Tribunal and thus, is asserting right, title and interest in the property. In tune with law laid down in Sumtibai and others Versus Paras Finance Company Manknwar w/o Parasmal Chordia (D) and others [2007 (10) TMI 653 - SUPREME COURT], leaving such party unimpleaded in litigation would be resulting in truncated resolution of dispute which would lack wholesomeness. It would also not be effective, competent and appropriate adjudication. Where a third party clearly has right, title and interest in the property in dispute, impleadment of such party in the suit, rather, becomes necessary to avoid multiplicity of litigation and for competent, complete and effective adjudication of the litigation among the parties.
Looking from another angle, applicant-respondent-defendant claims ownership in the suit property even earlier to filing of the suit by the plaintiff, petitioner herein, who is real sister of the respondent-vendor- defendant who was in litigation with State Bank of Patiala before the Debts Recovery Tribunal and this property having been sold in public auction had lost her title in the said property.
The impugned order affirmed - the revision petition is dismissed.
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2015 (2) TMI 1406 - SUPREME COURT
Civil court amenable to writ jurisdiction Under Article 226 or not - whether the view taken in SURYA DEV RAI VERSUS RAM CHANDER RAI & ORS. [2003 (8) TMI 527 - SUPREME COURT] that a writ lies Under Article 226 of the Constitution against the order of the civil court, which has been doubted in the reference order, is the correct view? - HELD THAT:- In TC. BASAPPA VERSUS T. NAGAPPA [1954 (5) TMI 21 - SUPREME COURT], question before this Court was as to the scope of jurisdiction Under Article 226 in dealing with a writ of certiorari against the order of the Election Tribunal. This Court considered the question in the background of principles followed by superior courts in England which generally formed the basis of decisions of Indian Courts. This Court held that while broad and fundamental norms regulating exercise of writ jurisdiction had to be kept in mind, it was not necessary for Indian Courts to look back to the early history or procedural technicalities of the writ jurisdiction in England in view of express constitutional provisions. Certiorari was meant to supervise "judicial acts" which included quasi judicial functions of administrative bodies.
In NARESH SHRIDHAR MIRAJKAR VERSUS STATE OF MAHARASHTRA [1966 (3) TMI 77 - SUPREME COURT], a nine Judge Bench judgment, a judicial order of High Court was challenged as being violative of fundamental right. This Court by majority held that a judicial order of a competent court could not violate a fundamental right. Even if there was incidental violation, it could not be held to be violative of fundamental right.
In RUPA ASHOK HURRA VERSUS ASHOK HURRA & ANOTHER [2002 (4) TMI 889 - SUPREME COURT] it was held that final order of this Court cannot be challenged Under Article 32 as violative of fundamental right. Judgment of this Court in SMT. TRIVENIBEN & ORS. VERSUS STATE OF GUJARAT & ORS. [1989 (2) TMI 404 - SUPREME COURT] was referred to with approval to the effect that a judicial order could not violate a fundamental right.
It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all other courts having limited jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision Under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for High Courts to issue writs to subordinate courts.
Judicial orders of civil court are not amenable to writ jurisdiction Under Article 226 of the Constitution - Jurisdiction Under Article 227 is distinct from jurisdiction from jurisdiction Under Article 226 - Contrary view in Surya Dev Rai is overruled.
The matters may now be listed before the appropriate Bench for further orders.
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2015 (2) TMI 1405 - DELHI HIGH COURT
Rejection of application for provisional release of goods - HELD THAT:- A copy of the order has been given to the counsel for the petitioner - the writ petition is disposed off.
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2015 (2) TMI 1404 - MADRAS HIGH COURT
Right to maintenance - Payment of maintenance, medical, clothing and educational expenses - seeking an order to protect the right to reside in the share household, under Section 17 of the Act - seeking protection order, under Section 17(e) of the Act, not to alienate or encumber the property - HELD THAT:- The Protection of Women from Domestic Violence Act, 2005, is to rectify the causus omission in the ordinary civil law. The expression, "Causus Omissus", as explained in various decisions, means (1) Omitted case, (2) What a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or some other cause, a case remains to be provided for, it is said to be a Causus Omissus.
In a given case, Wife would not have made any claim for maintenance under Section 125 of the Code of Criminal Procedure, or any other law, for the time being in force. However, under Section 23 of the Act, she can make a claim for maintenance. In such circumstances, the Magistrate has the power to order monthly payment of maintenance, under Section 20(3) of the Act. Though the words, "appropriate lumpsum payment" in Section 20(3) of the Act, may suggest to mean that it is a permanent alimony, yet from the reading of the Act, the power of the Magistrate, to order for lumpsum payment, arising out of necessity, including educational, medical expenses and such other need, enumerated in Section 20 of the Act, is not circumscribed.
Reading of the Act in entirety makes it clear that the legislature has enumerated certain contingencies and circumstances, in relation to domestic violence and empowered the Court to pass just and proper orders, to redress the grievance of the aggrieved person. From the reading of the Act, it is manifestly clear that the Domestic Violence Act, is independent of other laws.
It provides for redressal of all kinds of deprivation or any economic or financial resources to which the aggrieved person is entitled under any law or custom, whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance.
Wife and son have not filed any appeal against the denial of maintenance. But the petitioner has filed Crl. A. No. 180 of 2012 against the directions to pay Rs. 5,00,000/- towards the educational expenses to son. The appellate Court has modified the same, to the extent directing wife to furnish proof of admission in VLB College or any other college, and also to furnish complete fee structure to be paid, for the year 2012, alongwith the proof of capitation fees, if any, before the trial Court and further directed the petitioner to pay 50% of the capitation fees within two days of filing the proof of fees structure before the trial Court - The appellate Court has also directed the balance of 50% of the capitation fees to be paid by the husband and on production of the admission letter, before the trial Court. In addition to the above, the appellate Court has directed Rs. 50,000/- to be paid to the son, with liberty to utilise the same, for his other personal expenses. Monthly maintenance of Rs. 5,000/- for the son has been ordered to be deposited on or before, every 5th day of the English Calendar Month, in the personal account of the son.
Husband is directed to pay a sum of Rs. 2,11,200/- towards the college fees for 3rd and 4th years, in two installments. The first installment should be paid within 10 days, from the date of receipt of a copy of this order. The 2nd payment should be made within one month thereafter. Payment of Rs. 50,000/- to the Son, on admission, is sustained, having regard to the amount spent towards purchase of books, travel, etc., for all these years. Monthly maintenance of Rs. 5,000/- ordered to the Son is modified and ordered to be paid to the Wife. The 4th respondent-College is directed to permit the Son to continue his education in B. Tech (IT) course, without any interruption. Conversion of the amount of maintenance, earlier ordered to the Son, in favour of the Wife, would not preclude the learned Judicial Magistrate No. 1, Coimbatore, to consider the merits of the case and pass suitable orders, as to the entitlement of maintenance of both the respondents. Arrears of maintenance, at the rate of Rs. 5,000/-, ordered to be paid to the wife, upto date, shall be paid, within one month, from the date of receipt of the order.
Both the Criminal Revision Cases are disposed of.
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2015 (2) TMI 1403 - ITAT MUMBAI
Liability towards interest expenditure claimed by the appellant - HELD THAT:- This issue was stated to be covered by the earlier decision of the Tribunal, as while deciding this ground Ld. CIT(A) has relied upon the decision in the case of Hitesh S. Mehta [2013 (10) TMI 1065 - ITAT MUMBAI] wherein tribunal has restored back the issue to the file of AO and in assessee’s own case in respect of assessment years 2002-03, 2008-09, 2000-01, 2001-02, similar issue has been restored back to the file of AO.
Thus respectfully following the aforementioned decision of the Tribunal in assessee’s own case we restore this ground for all the years to the file of AO with similar directions and this ground for all the years is considered to be allowed for statistical purposes.
MAT - calculation of book profit u/s 115JB - HELD THAT:- As decided in assessee’s own case for A.Y 2008-09 [2014 (10) TMI 1075 - ITAT MUMBAI] issue allowed for statistical purposes with a direction to decide it afresh as per the provisions of law after giving finding on the claim of interest thus this ground is allowed for statistical purposes.
Charging of interest u/s 234A, 234B and 234C - HELD THAT:- Tribunal in the case of assessee for assessment year 2008-09 [2014 (10) TMI 1075 - ITAT MUMBAI] - Agreed, levy of interest is mandatory and sometimes consequential depending upon the facts of each case. thus direct the Assessing Officer to recomputed the interest liability after reducing the amount of tax deductable at source. We direct accordingly, thus, this ground is allowed for statistical purposes.
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2015 (2) TMI 1402 - SUPREME COURT
Applicability of G.O. Ms. 124 dated 7th March, 2002 to the posts for which selection process has already started pursuant to 1999 advertisement - retrospective in nature or not - If the said G.O. Ms. is retrospective, whether it is required to review the entire select list disturbing the appointments already made during the period between the 2001 and 7th March, 2002? - HELD THAT:- In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha [1961 (4) TMI 82 - SUPREME COURT], the Constitution Bench of this Court while considering the question as to whether an Act is to be made operative prospectively or retrospectively held a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent.
A statutory provision is held to be retrospective either when it is so declared by express terms, or the intention to make retrospective clearly follows from the relevant words and the context in which they occur.
By Presidential order, 1975 the State Government has not been empowered to pass any order under sub-paragraph (1) of paragraph 3 or paragraph 8 with retrospective effect. Apart from the fact that the State Government was not empowered by the Presidential Order, 1975 to pass any orders with retrospective date, in absence of any terms or the intention to make it retrospective date, the G.O. Ms. No. 124 dated 7th March, 2002 cannot be given effect from a retrospective date - In any case, the State Government cannot pass any order amending a procedural law regarding reservation in the matter of selection to posts, with retrospective effect, once the procedure of selection starts.
The G.O. Ms. No. 124 dated 7th March, 2002 is prospective and is not applicable to the process of selection started pursuant to Advertisement No. 10 of 1999 including the 973 executive posts which were ordered to be filled up by the High Court pursuant to the advertisement. The Tribunal erred in directing the APPSC to re-caste the merit list pursuant to G.O. Ms. No. 124 dated 7th March, 2002. The High Court by the impugned judgment dated 27th December, 2004 rightly held that the order passed by the Court will not affect the appointments already made to the executive post between 2001-2002 but erred in holding that the selection is to be made in accordance with G.O. Ms. No. 124 dated 7th March, 2002.
The Respondents are directed to fill up the rest of the posts including the posts of Municipal Commissioners Grade-III, Asstt. Commercial Tax Officers, Asstt. Labour Officers in executive cadre and Asstt. Section Officers in non executive cadre, which are vacant, as per President Order, 1975 and the Government orders in consonance with the Presidential Order which were prevailing in the year 1999 when the Advertisement was issued. The inter se seniority between the persons appointed in the 1st round and the persons appointed afterwards in the same cadre, if any, shall be decided by the appropriate authority in accordance with the rules, depending on the merit ranking obtained by them.
Appeal allowed.
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2015 (2) TMI 1401 - JHARKHAND HIGH COURT
Cognizance of offence - against the petitioners under Sections 323/417 of the Indian Penal Code - no offence under Sections 323/417 of the Indian Penal Code made out - HELD THAT:- The complainant specifically alleged at paragraph No. 2 that petitioners induced him to invest money in the contract work allotted to them by Idea Mobile Tower Company and they will return the said amount after payment of the bill. Petitioners also assured the complainant that they will give him half of the profit. Paragraph No. 3 of the complaint petition shows that complainant agreed to invest money in the contract work of accused on the aforesaid inducement. Paragraph No. 5 of the complaint shows that complainant invested Rs. 1,65,000/- in the work of petitioners. It is further stated that after payment of the bill amount, petitioners refused to pay the amount as promised. At paragraph No. 12 it is stated that when complainant went to the house of petitioners and requested for returning the money, he was assaulted by the petitioners.
Prima-facie it is found that the offences under Sections 323/417 of the India Penal Code are made out. Accordingly, there are no merit in this application, thus, same is dismissed.
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2015 (2) TMI 1400 - ITAT CHENNAI
TDS u/s 195 - Disallowance u/s 40(a)(i) - payments made to non-residents - assessee has not deducted TDS on agency commission and consultancy charges - assessee before ITAT submitted that the issue may be remitted back to the file of the A.O. for verification - HELD THAT:- We find that neither the A.O. nor the Ld. CIT(Appeals) discussed the factual aspects of the issue. Therefore we set aside the order passed by the Ld. CIT(Appeals) and remit the matter back to the file of the A.O. to decide the issue after considering all the facts with regard to agency commission and consultancy charges and after giving reasonable opportunity of being heard to the assessee.
Disallowance u/s 14A - As again the authorities below have not discussed the facts relating to the actual expenditure incurred by the assessee. Therefore we set aside the order passed by the CIT(Appeals) and direct the A.O. to decide this issue also afresh after examining the facts of the case.
Appeal filed by the Revenue is allowed for statistical purposes.
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2015 (2) TMI 1399 - ITAT MUMBAI
TDS u/s 194J - addition u/s 40(a)(ia) - Non deduction of TDS - assessee has submitted that the assessee had not claimed these payments as expenditure, hence there was no question of disallowance of any expenditure - HELD THAT:- We are in agreement with the above finding of the Tribunal. When there is no claim of expenditure there cannot be any disallowance of expenditure. Respectfully following the decision of the Tribunal in the immediate preceding assessment year in the own case of the assessee [2015 (3) TMI 185 - ITAT MUMBAI], this issue is decided in favour of the assessee and the disallowance made by the lower authorities under section 40(a)(ia) is hereby ordered to be deleted.
Disallowance u/s 40(a)(ia) which has been correctly deleted by the CIT(A) on the basis of certificates furnished under section 197 of the Act by the payee hospitals
Disallowance on account of unreconciled receipts - as agitated on behalf of the Revenue that the Ld. CIT(A) deleted the disallowance without properly appreciating the factual and legal matrix of the case - HELD THAT:- A perusal of the impugned order reveals that the Ld. CIT(A), after going through the reconciliation statement, had accepted the contention of the assessee that the difference was on account of different method of accounting of Revenue. Assessee had shown income much more than as reflected in the ICS data. He agreed with the contentions of the assessee that the differential amount had been shown either in earlier or later years. We do not find any infirmity in the above findings of the CIT(A) in deleting the disallowance on account of differences in the reconciliation statement.
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2015 (2) TMI 1398 - SUPREME COURT
Reversal of acquittal recorded under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 - illegal gratification - demand of bribe - HELD THAT:- It is agreed that the High Court that the trial court while appreciating the prosecution evidence completely ignored the presumption required to be taken under Sub-section (1) of Section 20 of the Prevention of Corruption Act, 1988. Sub-section (1) of Section 20 provides that where, in any trial of an offence punishable Under Section 7 or Section 11 or Clause (a) or Clause (b) of Sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
In the present case, there was no question of giving benefit of reasonable doubt to the accused.
In Himachal Pradesh Administration v. Om Prakash [1971 (12) TMI 127 - SUPREME COURT], explaining the expression "reasonable doubt", this Court has observed that It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether.
In view of law laid down by this Court, as above, and after considering evidence on record in the light of Section 20 of Prevention of Corruption Act, 1988, we hold that the trial court did err in law in giving benefit of reasonable doubt in the present case relating to corruption.
Considering the rival submissions of learned Counsel for the parties, there are no reasons to interfere with the impugned order passed by the High Court convicting and sentencing the Appellant Under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
The appeal is liable to be dismissed.
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2015 (2) TMI 1397 - SUPREME COURT
Seeking grant of bail - arranging undeserving candidates to get admission to the M.B.B.S. - Main contention advanced on behalf of the Appellant is that the Appellant has already been in custody for about one year and there is no prospect of commencement of trial in the near future - HELD THAT:- It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time.
Undoubtedly, the offence alleged against the Appellant has serious adverse impact on the fabric of the society. The offence is of high magnitude indicating illegal admission to large number of undeserving candidates to the medical courses by corrupt means. Apart from showing depravity of character and generation of black money, the offence has the potential of undermining the trust of the people in the integrity of medical profession itself. If undeserving candidates are admitted to medical courses by corrupt means, not only the society will be deprived of the best brains treating the patients, the patients will be faced with undeserving and corrupt persons treating them in whom they will find it difficult to repose faith. In these circumstances, when the allegations are supported by material on record and there is a potential of trial being adversely influenced by grant of bail, seriously jeopardising the interest of justice, there are no ground to interfere with the view taken by the trial Court and the High Court in declining bail.
It is certainly a matter of serious concern that the Appellant has been in custody for about one year and there is no prospect of immediate trial. When a person is kept in custody to facilitate a fair trial and in the interest of the society, it is duty of the prosecution and the Court to take all possible steps to expedite the trial. Speedy trial is a right of the accused and is also in the interest of justice - the prosecution and the trial Court must ensure speedy trial so that right of the accused is protected. This Court has already directed that the investigation be finally completed and final charge sheet filed on or before March 15, 2015.
It is directed that if the trial is not completed within one year from today for reasons not attributable to the Appellant, the Appellant will be entitled to apply for bail afresh to the High Court which may be considered in the light of the situation which may be then prevailing.
Appeal disposed off.
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2015 (2) TMI 1396 - DELHI HIGH COURT
Seeking directions for the members of the petitioner no. 1/Union being appointed to the posts of Assistant Grade III Technical (W-1) with the grade pay of Rs. 1,900/- instead of Rs. 1,800/- - HELD THAT:- The first argument that the Sixth Central Pay Commission Report has been given in Delhi and therefore this Court will have territorial jurisdiction, is an argument which has no substance because the Sixth Central Pay Commission Report was given qua government employees and the petitioners are admittedly not government employees but they are employees of respondent no. 2 and working with the respondent no. 3 (which is the unit of the respondent no. 2) at Noida. Taking that the Sixth Central Pay Commission Report has to be implemented qua the employees of the respondent no. 2 who are posted at Noida, yet, this Court would have no territorial jurisdiction even if the Sixth Central Pay Commission report is to be given effect by the respondent no. 2 being the corporate office, inasmuch as, the actual implementation by giving of service benefits to the petitioners/employees will not be at Delhi but will only and only be at Noida, U.P. - merely because the situs of the office of the maker of an executive order or instructions passed or will be passed, is by the respondent no. 2 being the corporate office at Delhi the same will not give territorial jurisdiction to this Court inasmuch as the necessary executive order or the instructions or the policy which emanates from that executive order or instructions or office memorandum will have to be given effect to and implemented at the office of the petitioners/employees at Noida, U.P. and the situs of issuing of this office order or executive instructions or police decision or instructions being an immaterial aspect qua territorial jurisdiction as held by the Supreme Court in the case of Kusum Ingots & Alloys Ltd. [2004 (4) TMI 342 - SUPREME COURT]. The first argument urged on behalf of the petitioner is therefore rejected.
The second argument of the corporate office being situated in Delhi and which will give territorial jurisdiction to Delhi will stand decided in terms of the first argument which is rejected.
The third argument urged on behalf of the petitioner that this Court would have territorial jurisdiction in view of Section 27 of the Act is once again an argument without merit - All that Section 27 of the Act states is that the provision of this Act will have an effect notwithstanding anything inconsistent thereof in any other law, however, the said provision in no way makes the cause of action arise in Delhi because this provision does not state that a cause of action arising in Noida automatically arises in Delhi merely because Noida is covered in the National Capital Region. Noida is covered in the National Capital Region only for the purpose of said 1985 Act which is only for development of the National Capital Region as per the Act. The Act does not change the law with respect to the arising of cause of action qua the territorial jurisdiction of Courts. The third argument urged on behalf of the petitioner is also therefore rejected.
There is no merit in the petition, and the same is therefore dismissed with costs of Rs. 15,000/- payable to the Prime Minister's National Relief Fund within a period of four weeks from today.
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2015 (2) TMI 1395 - SUPREME COURT
Retention of land illegally - Fraud played by the declarants upon the Tehsildar and appellate authorities to get the illegal orders obtained by them to come out from the clutches of the land ceiling provisions of the Act - HELD THAT:- The apprehension in the mind of the Appellants that their statutory, fundamental and constitutional rights guaranteed under the provisions of the Act and Articles 14, 19 and 21 read with 300A of the Constitution of India are infringed at this stage is premature and misconceived. Therefore, the question of issuing notices to them by the State Government before passing the orders in appointing the Deputy Commissioner as an Enquiry Officer to conduct administrative enquiry in relation to the land holdings of the land of the Company, the share holders and the Appellants herein to find out whether the land revenue records of the land of the villages referred to supra are destroyed and fabricated on that basis the declarants have declared that they do not own surplus land, the State Government has not passed effective orders at this stage to take away the valuable rights of the Appellants as claimed by them and therefore, the question of giving opportunity to them at this stage and conducting enquiry before passing the orders is wholly untenable in law, as the orders are only administrative in nature by appointing an officer to enquire into the alleged fraud on the officers, who have decided the declarations of the share holders and sub-lessees favourably on the basis of fabricated revenue records by destroying original records of the land of villages referred to supra, with the deliberate intention to come out from the clutches of the Act.
The rights of the Appellants are not affected on the date of passing of the orders by the State Government.
The orders impugned in the writ petitions which are affirmed by the High Court, are perfectly legal and valid and therefore, the same do not warrant interference by this Court in exercise of power of this Court Under Article 136 of the Constitution - the impugned judgment and order of the Division Bench in affirming the orders of the State Government is not required to be interfered with for one more reason, namely, the High Court, after adverting to certain findings recorded in the criminal cases with regard to the land ceiling and on the alleged fraud against the declarants in getting the orders passed Under Section 21 of the Act, has recorded the findings and reasons holding that the orders of the State Government do not warrant interference as the same are in the interest of public at large.
Appeal dismissed.
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2015 (2) TMI 1394 - ITAT JAIPUR
Rectification of mistake - Rejection of books of account of the assessee - method of accounting of percentage completion method rejected - HELD THAT:- We have heard the rival contentions and perused the materials available on record. We find merit in the arguments of the ld. Counsel for the assessee. This Bench of ITAT has followed the consolidated order in associated concerns thereby upholding the books of account maintained by the assessee as well as project completion method followed by it.
The mistake as pointed out by the assessee amounts to mistake apparent from record - we uphold the books of account of the assessee and also uphold method of accounting of project completion method as followed by this Bench of ITAT in assessee's group of cases. Thus in the entirety of the facts and circumstances, the additions are deleted and the appeals of the assessee are allowed.
Except above, there is no change in the body of the order - MA of assessee allowed.
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2015 (2) TMI 1393 - MADRAS HIGH COURT
Violation of principles of natural justice - though 20 days time was sought by the petitioner on 19.12.2014, when the notices were received for the respective assessment years with proposal to reverse the claim of ITC on the ground that the selling dealer has not filed monthly returns and payment of tax to the respective assessing officer, without granting or rejecting the request, the respondent has passed orders on 30.12.2014.
HELD THAT:- The petitioner has relied on the decision of this Court in the case of ALTHAF SHOES (P) LTD. VERSUS ASSISTANT COMMISSIONER (CT) , VALLUVARKOTTAM ASSESSMENT CIRCLE, CHENNAI-6 [2011 (10) TMI 567 - MADRAS HIGH COURT], wherein this Court has held The mere fact that the Department had not made an assessment on the dealer's vendor, per se, could not stand in the way of the assessing officer considering the claim of the dealer under section 19 of the Act. Going by section 17 which provided that the burden on the purchasing dealer rested to the extent of showing that he was not liable to tax under the Act and read in the context of the fact that the petitioner-dealer had given his sellers' TIN number and had also produced the invoices evidencing the purchase of materials paying tax, the Department could not successfully canvass its claim that the petitioner was not entitled to have the refund.
The matters are remitted back to the authority concerned for passing appropriate orders afresh on merits and in accordance with law after affording an opportunity of being heard to the petitioner - Petition disposed off.
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2015 (2) TMI 1392 - ITAT MUMBAI
Rectification of mistake - not following the decision of Special bench in order [2014 (11) TMI 725 - ITAT MUMBAI] - Income taxable in India - HELD THAT:- Admittedly, the Ld A.R had placed reliance on the decision rendered by the Special bench in the case of Clifford Chance [2013 (6) TMI 544 - ITAT MUMBAI] at the time of hearing which was not considered.
There should not be any dispute that the decision rendered by the Special bench should be preferred over to the decision of the Division bench. Hence, the impugned order of the Tribunal suffers from the mistake apparent from record in not following the decision of Special bench and hence the same requires to be corrected. The issue regarding the quantum of income attributable to Permanent Establishment is discussed in paragraph 12 of the order.
Miscellaneous application filed by the assessee is allowed.
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2015 (2) TMI 1391 - ITAT PUNE
Royalty receipts - Taxability of consideration received for facilitating grant of user charges in software to Indian entities as per the provisions of Indian-US Tax Treaty - HELD THAT:- The issues raised by the assessee are decided against the assessee following the decision of Tribunal in assessee’s own case relating to assessment years 2004-05 and 2006-07 [2013 (8) TMI 952 - ITAT- PUNE] payment made by the respondents to the non-resident supplier amounts to royalty and is rightly brought to tax in India. The assessee is not entitled to get the immunity of the DTAA between India and USA.
Since there is no change in the facts and circumstances. However, in view of the declaration made by the assessee in prescribed Form No.8 in terms of section 158A(1) of the Act, the Assessing Officer is directed to apply the decision of the Hon’ble Bombay High Court and / or Hon’ble Supreme Court of India, on the said issues being decided in assessee’s own case, relating to assessment years 2004-05 and 2006-07. The grounds of appeal Nos.1 to 3 raised by the assessee are accordingly, dismissed.
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2015 (2) TMI 1390 - BOMBAY HIGH COURT
Dishonour of Cheque - Failure of rebuttal of presumption - section 139 of NI Act - HELD THAT:- Admittedly, the cheque has been signed by the accused. The complainant had sent statutory notice dated 14/08/2007 to the accused wherein it was specifically mentioned that the accused had borrowed the said amount of ₹ 22,500/- and towards the repayment of the said amount, had issued the said cheque for the amount of ₹ 22,500/-. The accused was called upon to pay the cheque amount within the period of 15 days from the date of receipt of notice. There is a copy of legal notice and the A.D. Card on record. Mere denial that such a notice was received by the accused, is not sufficient to prove that the notice was not received by him. The accused did not send any reply to the said notice thereby denying the averments made therein. Hence, adverse inference is bound to be drawn as against the accused. In his cross-examination, PW1 specifically stated that the details in the cheque were recorded by the accused.
In the case of "Avon Organics Ltd." [2003 (7) TMI 745 - ANDHRA HIGH COURT] admittedly, the accused had issued a blank cheque without mentioning the date and amount to the appellant. Therefore, there was absolutely no dispute that a blank cheque was given by the accused to the complainant. The High Court held that filling up the amount portion in words and figures and put date of his own choice by the complainant amounts to alteration and such alteration cannot be done without the consent of the accused. The above judgment is not applicable to the present case.
In the case of HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE [2001 (7) TMI 1172 - SUPREME COURT], the Apex Court has held that it is obligatory upon the Court in terms of Sections 138 and 139 of the N.I. Act, to raise the presumption in every case where the factual basis of the raising of presumption has been established.
Thus, it can be said that once the execution of the cheque was admitted by the accused, it was for him to first rebut the presumption arising out of Section 139 of the N.I. Act. It was for him to prove that the contents of the cheque, except the signature, were filled in by the complainant without his consent. In the present case, the accused has not taken any probable defence which could rebut the said presumption. As has been rightly observed by the learned C.J.M., the accused, during the cross-examination of PW1, has only resorted to denial of the statements made by the complainant in his affidavit in evidence. Mere denial was not sufficient to rebut the presumption that had arisen in favour of the complainant.
The Lower Courts have rightly dealt with the matter and have held the accused guilty of the offence punishable under Section 138 of the N.I. Act - there are no jurisdictional error committed by the Lower Courts - the Revision Application is dismissed.
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2015 (2) TMI 1389 - SUPREME COURT
Seeking enhancement of compensation for the land acquired for 50 and 80 feet D.P. Road - compensation for land acquired for Dhobi Ghat - HELD THAT:- In the present case is that the dispute relates to mutation; in the revenue record the land has been mutated and recorded in the name of the Appellant-Corporation. This was opposed by the Respondent No. 2 who had not been granted relief by the competent authorities at the different stages. Therefore, he moved before the High Court against the mutation.
It is settled that mutation does not confer any right and title in favour of any one or other, nor cancellation of mutation extinguishes the right and title of the rightful owner. Normally, the mutation is recorded on the basis of the possession of the land for the purposes of collecting revenue - In the present case, it is found that a disputed question of fact was raised by the parties with regard to the title over the land in question. The Appellant-Corporation on the one hand based its claim of title on payment of amount by depositing it in the court and possession of the land taken pursuant to the agreement reached between the Appellant-Corporation and the father of the Respondent No. 2.
In view of the fact that there is a disputed question of fact, it was not a fit case for the High Court to decide the question of mutation doubting the title in a petition under Article 226 of the Constitution and thereby reversing the concurrent finding of fact by the competent authorities - appeal allowed.
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2015 (2) TMI 1388 - CALCUTTA HIGH COURT
Rectification u/s 154 - period of limitation - whether the period of four years provided in sub-section (7) of Section 154 shall start from the date of the original order or from the date of the amended order? - Original assessment u/s 143(3) for the assessment year 1993-94 was passed on 22nd March, 1996 allowing deduction under Chapter VIA without setting off unabsorbed depreciation and deduction allowed by the order dated 22nd March, 1996 was rectified under Section 154 - HELD THAT:- Once the order dated 22nd March, 1996 was amended in order to give effect to the appellate order, it is the order dated 27th December, 1999 which became the operative order. The original order dated 22nd March, 1996 lost its existence. The law well settled is that two operative orders cannot coexist in the same field. The order of assessment passed on 22nd March, 1996 was admittedly amended on 27th December, 1999 in order to give effect to the appellate order. The order dated 22nd March, 1996 merged into the order dated 27th December, 1999.
The Income Tax Act is a special legislation. Therefore, questions arising out of the aforesaid Act have to be answered taking recourse to the provisions contained therein. But in case of doubt or difficulty assistance can be taken from the general law of the land. The cause of action for rectification is evidently a mistake. It is the mistake, which is sought to be rectified. A cause of action to rectify a mistake, in the general law of the land, does not arise until the mistake has been discovered. Therefore, Section 17 of the Limitation Act provides that the period of limitation in a suit or an application governed by the Limitation Act shall commence from the date of discovery of the mistake. The revenue in this case is however armed with the judgment of the Apex Court in the case of Hind Wire [1995 (1) TMI 2 - SUPREME COURT].
For the aforesaid reasons, we are of the opinion that the proceedings under Section 154 were within the prescribed time and the Tribunal took the correct view of the matter. The appeal is, therefore, dismissed.
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