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2015 (2) TMI 1387 - SUPREME COURT
Dishonour of Cheque - appellant contended that the pay order issued by the bank is nonetheless a cheque satisfying the definition of cheque under Section 6 of the Negotiable Instruments Act - HELD THAT:- Having regard to the specific prescriptions set out in Section 138 referring to 'the person' who issued the 'cheque' again referable to 'an account' of that person so on and so forth, we have our own doubts as to how far the said decision rendered in respect of pay order issued can be applied to the facts of this case. However, for other reasons which weighed with this Court for not granting any relief in this appeal, we do not wish to go into the said issue vis-à-vis the judgment relied upon by counsel for the Appellant and we leave it open for consideration as and when appropriate case arises before us.
In the case on hand Respondent No. 1/Bank has been already dropped from the proceedings by order dated 1.11.2003 which has become final and conclusive. Therefore, in the first instance, even if the Appellant was to be permitted to proceed with the complaint as against Respondent No. 2, very many issues as regards how the pay order came to be issued and the return of the same by Respondent No. 1/bank would attract the penal provisions of Section 138 etc., which cannot be examined in the absence of the concerned accused, namely, the Bank being a party before the Court. Therefore, on this ground itself there is no scope to grant any relief to the Appellant for proceeding with the complaint as against Respondent No. 2.
In the absence of necessary pleadings with particular details as regards the property based on which the transaction was stated to have been entered into between the Appellant and M/s. A.D. Exports Private Limited there is every justification in the stand of the Respondents to doubt the full transaction as between the Appellant and M/s. A.D. Exports Private Limited. More so, when a huge sum of ₹ 44,86,000/- was stated to have been parted by the said agreement holder to the Appellant who agreed to handover the possession and along with the title deeds - Appeal dismissed.
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2015 (2) TMI 1386 - SUPREME COURT
Suit for recovery of possession and damages with respect to a portion of the property being in unauthorized occupation of the Appellant/Defendant - Order XII Rule 6 of the Code of Civil Procedure - High Court exceeded its jurisdiction Under Section 115 of the Code of Civil Procedure or not - HELD THAT:- The bare perusal of the provisions of Order XII Rule 6 Code of Civil Procedure, makes it clear that it confers wide discretion on the court to pass a judgment at any stage of the suit on the basis of admission of facts made in the pleading or otherwise without waiting for the determination of any other question arose between the parties. Since the Rule permits the passing of judgment at any stage without waiting for determination of other question, it follows that there can be more than one decree that may be passed at different stages of the same suit. The principle behind Order XII Rule 6 is to give the Plaintiff a right to speedy judgment so that either party may get rid of the rival claims which are not in controversy.
On an application filed by the Plaintiff/Respondent Under Order XII Rule 6 Code of Civil Procedure seeking a judgment in the suit, the trial court dismissed the application stating that there is no unequivocal admission for passing a judgment in the suit. The High Court, however, reversed the order passed by the trial court and held that considering the earlier judgment deciding the ownership of the suit property in favour of the Appellant, the suit for possession ought to have been decreed by the trial court. Consequently, the High Court decreed the suit - it reveals that the High Court not only decreed the suit for possession but also directed the Plaintiff/Respondent to file an affidavit giving details of the cost of litigation since the appeal was allowed with cost.
There is no dispute with regard to the law settled by this Court that Order XII Rule 6 confers wide discretion on the Court to pass judgment either at the stage of the suit on the basis of admission of the facts made in the pleadings or otherwise, but the Court shall later on decide the other questions which arise for consideration in the Suit - It is equally well settled that the provision of Order XII Rule 6 of the Code is not a mandatory provision rather discretionary. While exercising power of passing judgment on admission made in the pleading or otherwise, the Court must keep the matter pending for adjudication so far as other issues are concerned.
Appeal dismissed.
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2015 (2) TMI 1385 - CALCUTTA HIGH COURT
Heirs of the de-facto complainant can be allowed to continue the prosecution or not - who is the aggrieved person - HELD THAT:- The de-facto complainant Madhurilata Bose, a 70 years old lady, wife of Late P.C.Bose used to reside at her husband's place at 78, Ballygunge Place, Kolkata-700019 since the year 1993. Her husband died in the year 1995. Even thereafter she lived there till the year 2003 along with her youngest daughter Sonali Rakshit (O.P. No. 3 herein). Between the period from 2003 to 2009 she lived with her eldest daughter Smt. Ratna Basu Roychowdhury (O.P. No. 2 herein). In the year 2009 her son Debasish Bose (Petitioner No. 1 herein) fraudulently and dishonestly induced her to believe that he intended to help her financially by inducting tenants in the ground floor of the said premises and he made her sign a few papers.
She was then suffering from various ailments including vision problem and she was in dire need of money for treatment. In the year 2010 the petitioner No. 1 further represented to her that the said premises required renovation to fetch maximum rent from the tenants and asked her to stay with the O.P. No. 3 at Uttarpara. Believing such representation to be true she began to reside at Uttarpara with O.P. No. 3. Since then the petitioner No. 1 did not allow her to come back. During the end part of 2010 the petitioner No. 1 along with the petitioner No. 2 Smt Kalyani Biswas who is her second daughter, threatened her not to ever think of returning to the said premises and disclosed that it has been mutated in the name of petitioner No. 1.
The question as to whether the heirs of the de-facto complainant can be allowed to continue the prosecution is no longer res integra as the same has been concluded by the decision of the Hon'ble Supreme Court cited by the Leaned Counsels for the parties in JIMMY JAHANGIR MADAN VERSUS BOLLY CARIYAPPA HINDLEY (DEAD) BY LRS. [2004 (11) TMI 520 - SUPREME COURT]. It has also been held by the Hon'ble Supreme Court that the injured person or relative of the deceased is entitled to appear before the Magistrate and can make his submission at the time of consideration of the report by the Magistrate. Thus the core question which falls for consideration now is as to whether the legal heirs of the deceased de-facto complainant who are the victims can be permitted to file Naraji Petition.
It is evident that "victim", who is the ultimate sufferer in the commission of a crime, has been given recognition as an aggrieved party by introducing the abovesaid amendment in Cr.P.C. There is no manner of doubt that right from the occurrence of the incident till the decision of trial, appeal or revision, till the highest Court of law, the "victim" is as much interested in the decision as is the accused or the State. In fact, the "victim" on account of being the injured person and the sufferer, deserves to be recognized as the most aggrieved party in a crime. It is a happy state of affairs that the stand of the victim are now vindicated in shape of amendment in the Cr.P.C. - It becomes clear as day that the law now recognizes importance of victim in a crime and also in all the subsequent proceedings contemplated by the Code, which take place right from lodging of an FIR till decision in appeal or revision.
There are no illegality or infirmity in the impugned order passed by the Learned Chief Judicial Magistrate, Alipore allowing the petition filed the present Opposite Parties under Section 302 Cr.P.C. and by permitting them to file Naraji Petition, so as to warrant any interference by this Court - revision dismissed.
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2015 (2) TMI 1384 - ITAT KOLKATA
Rectification of Mistake - Estimated profit in respect of the turnover disclosed by the assessee in its Profit & Loss A/c. by applying the rate of 35% - addition representing the undisclosed turnover found in the course of search - income from other sources - HELD THAT:- The words used in the order are clearly profit for the assessment year. Having specifically adjudicated the issue of the profit for the assessment year, now the claim of the assessee for further clarifications is nothing but review of the order. Obviously when profit for the assessment year is mentioned, the profit has to be decided for the turnover in it is entirety.
In these circumstances, as it is noticed that the Miscellaneous Applications filed by the assessee are only in regard to seeking of clarification as is evident of the Miscellaneous Applications and as no error has been pointed out in the order of the Tribunal, the Miscellaneous Applications as filed by the assessee stand dismissed.
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2015 (2) TMI 1383 - KARNATAKA HIGH COURT
Reopening of assessment u/s 147 - Objections against assessment proceedings - petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details - HELD THAT:- It is apparent that without furnishing a copy of the statement stated to have been given by Mukesh Choksi and without notifying the petitioner regarding basis of the transaction that petitioner is said to have entered into with Mukesh Choksi, respondent has passed the impugned order. The entire basis for the impugned order is the sworn statement of Mukesh Choksi. Unless petitioner is given opportunity to have his say in the mater with regard to the said statement and its contents, it cannot be said that petitioner was given an opportunity of being heard in the matter. Hence, it has to be held that the impugned order is passed without providing any fair and reasonable opportunity of being heard to the petitioner.
Petitioner places reliance on the judgment of the Division Bench of the Delhi High Court in the case of Mr. Ashok Mittal [2014 (4) TMI 208 - DELHI HIGH COURT] wherein also petitioner therein had specifically objected for the assessment proceedings stating that he had no transaction with either Mukesh Choksi or any other related companies, but the Assessing Officer had solely proceeded on the basis of the statement and the list provided without there being any other information or details furnished to the petitioner though petitioner therein had sought for such details. The High Court of Delhi has held that there was absence of fair and reasonable opportunity and such an assessment order could not be sustained and could be interfered with under Article 226 of the Constitution of India.
In the light of the facts and circumstances as adverted to above and as the petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details regarding the alleged share amount, I am of the view that the matter requires to be re-considered by the respondent by providing fair and reasonable opportunity of hearing to the petitioner and by furnishing the details/copy of the statement based on which the impugned assessment order has been passed.
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2015 (2) TMI 1382 - ITAT CHENNAI
Deemed dividend u/s 2(22)(e) - treating of loans/advances in the normal course of business as ‘deemed dividend’ - HELD THAT:- From the records, it is evident that the assessee-company is not the shareholding company of M/s. Fairmacs Shipping & Transport Services Pvt. Ltd.. To fall within the scope of ‘deemed dividend’ u/s.2(22)(e) payment should have been made by way of advance or loan to a shareholder, being a person who is the beneficial owner of shares. Thus, the amounts can be treated as ‘deemed dividend’ only if it is advanced to a person (including juristic person) who is a beneficial shareholder.
Special Bench of the Tribunal in the case of ACIT vs. Bhaumik Colour Pvt. Ltd. [2008 (11) TMI 273 - ITAT BOMBAY-E] has held that the deemed dividend can be assessed only in hands of a person who is a shareholder of lender company and not in hands of a person other than a shareholder.
The view taken by the Special Bench has been approved by the Hon’ble Madras High Court in the case of CIT v. Printwave Services (P.) Ltd [2014 (11) TMI 694 - MADRAS HIGH COURT] while dealing with similar controversy held that since the assessee–company is not beneficial or registered owner of shareholding in the company (sister concern), no dividend, normal or deemed could have been received by the assessee-company. Therefore, the provisions of Sec.2(22)(e) will not apply. Appeal of assessee allowed,
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2015 (2) TMI 1381 - DELHI HIGH COURT
Comprehensive settlement towards full and final settlement of all their claims in respect of the movable and immovable assets left by the deceased parents - HELD THAT:- In view of the affidavits filed by the plaintiff and the defendants No.3 & 4 and the amounts received by them, as agreed, all the parties jointly state that the defendant No.1 be declared as the sole, absolute and exclusive owner of the property bearing No. A-53, Vasant Marg, Vasant Vihar, New Delhi and the commercial property/office space bearing No.C-001A, First Floor, Super Mart Commercial Complex-I, DLF Qutab Enclave Complex, Phase IV, Gurgaon, Haryana. Ordered accordingly.
The suit is decreed in terms of the settlement recorded on 7.11.2014.
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2015 (2) TMI 1380 - ITAT BANGALORE
Benefit of exemption u/s.54G - Short term capital gain - as claimed that the capital gain is not chargeable to tax and is exempt u/s.54G - whether the property transferred by the Assessee was a capital asset, being machinery or plant or building or land or any rights in building or land used for the purposes of the business of an industrial undertaking situate in an urban area? - HELD THAT:- Explanation to section 54G(1) of the Act expressly provides that having regard to the population, concentration of industries, need for proper planning of the area and the other factors, the Central Government by general or special order declared to be an urban area for the purpose of sub-section(1) of section 54G of the Act.
CBDT has issued notification dated 27/04/2006 for the purpose of exemption of capital gains u/s 54G in conformity to the Explanation above, declaring Bangalore as urban area. Such notification as we have already seen has been held by the Hon’ble Karnataka High Court [2005 (5) TMI 690 - KARNATAKA HIGH COURT] as applicable from the date of notification and has no retrospective effect. In view of the legal position mentioned above, the assessee’s contention is not tenable.
Bangalore was notified as urban area - assessee raised another issue that u/s 280ZA of the Act, which was a section providing for relief to Assessees who relocate their industries to Backward area, Bangalore was notified as urban area for the purpose of giving relief for shifting the industry from Bangalore to other backward area - Section 280ZA of the Act was introduced by the Finance Act 1965 with effect from 01/04/1965 and omitted by the Finance Act 1987 with effect from 01/04/1988.
Section-280Z provided for relief by way of reduction of a fraction of tax on capital gains arising from the sale of the assets at the old place from where an industrial undertaking is shifted in terms of the scheme of the Central Government announced for this purpose. In order to be eligible for the concession specified conditions have to be fulfilled. Though the expression industrial ‘undertaking’ has not been defined in this chapter, it should bear the meaning assigned to it in section 80J of the Act formerly section 84 of the Act.
CBDT has issued notification urban areas u/s 280Y(d) vide Notification No.S.O.3419 dated 22/09/1967 thereby Bangalore Corporation is declared as “urban areas” for the purpose of XXIIB of the Act. Moreover, this notification is applicable for tax credit certificates for shifting of industrial undertaking from urban areas u/s 280Y(d) r.w.s. 280ZA of the Act and same cannot be held to be applicable for exemption u/s 54G of the Act.
As also seen that the Hon’ble High Court of Karnataka has held that Notification dated 27.10.2006 cannot apply retrospectively. In such circumstances, we are of the view that the ld. CIT(Appeals) was justified in upholding the order of the Assessing Officer denying the benefit of section 54G to the assessee.
Assessee filed before us Notification No.9447 dated 6.1.1994. The said Notification was issued by the Central Govt. notifying areas which have to be regarded as urban areas for the purpose of section 2(1A) & 2(14) of the Act, which defines agricultural income and capital assets respectively. It was pointed out by him that municipal area of Bangalore and area upto a distance of 8 Kms. from municipal limits of Bangalore in all directions have been notified as urban areas. According to him, definition of urban area cannot be different for the purpose of section 54G.
We are unable to accept the aforesaid argument of the ld. counsel for the assessee. The benefit conferred u/s. 54G of the Act is a specific benefit. Explanation below section 54G(1) of the Act contemplates notification by the Central Government for the purpose of allowing deduction u/s. 54G of the Act. The Notification issued under a different provision of the Act which is meant for different purpose cannot be applied while dealing with the provision of section 54G of the Act. We therefore reject the argument of assessee.
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2015 (2) TMI 1379 - CESTAT BANGALORE
CENVAT Credit - amount to be reversed attributable to the trading activity of the appellant in respect of which cenvat credit is not admissible - HELD THAT:- If services are identifiable to have been used only for providing dutiable services exclusively, there is no need to reverse any portion of the credit on the basis of proportion of trading activity to the total turnover or even for exempted services. Since the calculation did not take this aspect into account then matter has to go back for fresh consideration.
The impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh adjudication after giving reasonable opportunity to the appellants to present their case and call additional evidences in support of the case - Appeal allowed by way of remand.
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2015 (2) TMI 1378 - MADRAS HIGH COURT
Entitlement to officers/employees to visit overseas countries/centres as part of LTC/HTC - validity of circular issued by the State Bank of India - reimbursement of LTC - HELD THAT:- There is no dispute that the Bank would be paying LTC amount to the concerned officers pursuant to the interim order granted by this Court. Interim Order is subject to the result of the writ petition. The learned counsel for the petitioner is correct in his contention that the there is no taxable income for deduction at source.
The interim order granted by this Court is explained to the effect that any amount paid to the petitioner towards LTC or re-imbursement of LTC pursuant to the impugned order would not amount to income so as to enable the Bank to deduct tax at source. It is made clear that if the writ petition is dismissed, the employees are liable to pay tax on the amount paid by Bank.
Post the writ petition for final disposal on 15.06.2015. The interim order already granted with this modification would continue till the disposal of the writ petition.
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2015 (2) TMI 1377 - TELANGANA HIGH COURT
Validity of assessment order - it is alleged that the petitioner has not reported the actual sale turnover to the Sales Tax Department for the years 2008-09 and 2009-10 - reports furnished by the Regional Vigilance and Enforcement Officer, Vijayawada are not furnished to him - Violation of principles of natural justice - HELD THAT:- When the order of assessment is solely based on the material and reports submitted by the Regional Vigilance and Enforcement Officer, Vijayawada, it is obligatory on the part of authorities to supply such material along with the notice of assessment and invite objections from the petitioner, before passing the revised assessment order.
The matter is remanded for fresh consideration by the respondent/Respondent shall furnish to the petitioner, the reports/material supplied by the Regional Vigilance and Enforcement Officer, Vijayawada, and thereafter, pass appropriate orders afresh as expeditiously as possible, preferably within a period of four months from today - appeal allowed by way of remand.
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2015 (2) TMI 1376 - CALCUTTA HIGH COURT
Constitutional concept of equality - grant of fresh permits in favour of new operators - Bogey of liberalized policy relating to grant of permits under the Motor Vehicles Act, 1988 - HELD THAT:- The Motor Vehicles Act, 1988 and the rules or policy guidelines framed thereunder bind the transport authorities to act in a particular manner in the matter of grant of permits or allowing commercial plying of vehicles. Several of these statutory provisions have been noticed in the first order of reference and have been referred to by the writ petitioners in course of the present proceedings. Since statutory authorities are bound to act in accordance with law, and the manner in which the law requires them to act, the actions of the statutory authorities are justiciable. If there is a complaint that the grant of a permit or like action is in derogation of the statutory provisions or the rules or policy guidelines framed thereunder or in colourable exercise of authority, the acts complained of can be subjected to judicial review, subject to the complainant suffering or being likely to suffer a degree of prejudice thereby. If the complaint is of the irregular or illegal exercise of authority which results in the complainant being affected or likely to be affected, the status of the complainant as a business rival of the beneficiary of the irregular or illegal executive largesse will not stand in the way of the complaint being received for judicial review.
The primary question raised in the two orders of reference is answered thus: subject to the considerations as to there being an efficacious alternative remedy, a writ petition at the instance of existing operators providing stage-carriage services on different routes, who seek to challenge the grant of fresh permits in favour of new operators (either on the self-same routes on which they have been operating or touching a portion of the same) by the transport authorities is maintainable if the challenge is on the ground of illegality or arbitrariness or colourable exercise of power or otherwise being violative of Article 14 of the Constitution, notwithstanding that the action may be impelled by the commercial interests of the existing operator; provided that, the substance of the challenge is not founded only on the commercial interests of the existing operator being prejudiced by the acts complained of.
Subject to the considerations as to there being an efficacious alternative remedy, the court exercising jurisdiction under Article 226 of the Constitution of India may entertain applications by holders of stage or contract-carriage permits under the Motor Vehicles Act, 1988 questioning any action or inaction on the part of the transport authorities in dealing with complaints or allegations in relation to acts of other operators in plying their vehicles for carrying passengers, whether holding permits or not, which acts constitute violation of the provisions of the Act or the rules or policy guidelines framed thereunder; provided that, the substance of the challenge is not founded only on the commercial interests of the existing operators being prejudiced by the acts complained of.
The reference is disposed of.
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2015 (2) TMI 1375 - MADRAS HIGH COURT
Refusal to consider petitioner's application for issuance of Duty Credit under the DFCE Scheme - refusal on the ground that only on submission of Status House Certificate for the base year 2002-03 is produced - violation of principles of natural justice - HELD THAT:- It is to be pointed out that though an opportunity of personal hearing was granted, the impugned order does not reflect as to how and in what manner the public notice No.69/2004-09 dated 07.04.2005 is not applicable to the petitioner and in what way still the petitioner has to satisfy the recognition for the base year. Therefore, the impugned order is passed without sufficient reasons calling for interference of this Court. This court is of the view that the matter should be remanded back for fresh consideration by the respondent duly taking note of the amendment and also after affording an opportunity of personal hearing.
The matter is remanded back to the 1st respondent for fresh consideration who shall hear the petitioner in person and pass appropriate orders on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order - petition allowed.
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2015 (2) TMI 1374 - ORISSA HIGH COURT
Condonation of delay in filing appeal - whether by invoking Section 5 of the Limitation Act, the Tribunal can condone the delay, if the applicant satisfies the Tribunal that he was prevented by sufficient cause in not preferring the application for review within the prescribed period of limitation? - HELD THAT:- On a cursory perusal of Section 22 of the Act it is vivid and luminescent that the Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure. For the purpose of discharging its functions under the Act, the Tribunal shall have the same powers as are vested in a civil court under the Code of Civil Procedure while trying a suit in respect of the matter enumerated in clause (f) of sub-section (3) of Section 22 of the Act. The Tribunal while entertaining an application for review, is conferred with the same power as are vested in a Civil Court under the Code of Civil Procedure, 1908 that is to say for the purpose of entertaining an application for review, the Tribunal in our view acts as a Civil Court and is conferred to exercise all powers as are vested in a Civil Court - On a plain reading of Section 5 of the Limitation Act, 1963, it is evident that the prescribed period of limitation can be extended if Court is satisfied that the applicant had sufficient cause for not preferring the appeal or making the application within the period of limitation.
In INDUSTRIAL CREDIT AND INVESTMENT CORPN. OF INDIA VERSUS GRAPCO INDUSTRIES LTD. [1999 (5) TMI 613 - SUPREME COURT], the Apex Court, while dealing with Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which is pari materia with the Section 22(3) of the Act, held that Recovery of Debts Due to Banks and Financial Institutions Act, 1993 also confers power on the Tribunal to travel beyond the Code of Civil Procedure and only fetter that is put on its power is to observe the principles of natural justice.
The provision regarding period of limitation provided in Rule 17 howsoever peremptory or imperative the language may be, is not sufficient to displace the applicability of Section 5 of the Limitation Act. It is true that the language of Rule 17 is mandatory and compulsive, in that, it provides in no uncertain terms that no application for review shall be entertained unless it is filed within thirty days from the date of receipt of copy of the order sought to be reviewed. But the same is the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section of the Act in order that the application may be entertained despite such bar.
The logical sequitur on the analysis made in the preceding paragraphs is that neither Section 22 of the Act nor Rule 17 of the Rules expressly excluded the applicability of Section 5 of the Limitation Act. In the event an application for review is filed beyond the period of limitation along with an application for condonation of delay and the applicant satisfies the Tribunal that he had sufficient cause for not preferring an application within the time, the Tribunal can condone the delay.
The reference is answered accordingly. The Registry is directed to place the matter before the assigned Bench.
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2015 (2) TMI 1373 - KARNATAKA HIGH COURT
TDS u/s 194A - Obligation on Insurance Company to deduct the TDS from the entire interest component - HELD THAT:- The court below was not justified in directing the petitioner-Insurance Company to deposit a sum of Rs.10,000/- deducted by it towards TDS. Section 194-A(3)(ix) of the Income Tax Act, 1961 grants exemption from payment of tax on the interest component up-to a sum of Rs.50,000/-. This exemption has to be claimed by the respondent/claimants by filing necessary returns before the assessing authority. It is the statutory obligation of the petitioner-Insurance Company to deduct the TDS from the entire interest component and deposit the same before the competent authority, which has been done in this case. A certificate to that effect has been issued to the respondent/claimants. The respondent/claimants have to make a claim for refund of the aforesaid amount before the competent authority. With these observations, writ petition is allowed.
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2015 (2) TMI 1372 - ITAT MUMBAI
Disallowance of deduction for gains on sale of investment - HELD THAT:- As in own case [2014 (5) TMI 729 - ITAT MUMBAI] Tribunal has considered the issue at para- 3 of its order and at para 5.4 the Tribunal following the earlier orders of the Tribunal in assessee’s own case decided the issue in favour of the assessee and against the Revenue. Respectfully following the decision of the Co-ordinate Bench we decide this issue in favour of the assessee and against the Revenue and confirm the findings of Ld. CIT(A). Ground No.1 is accordingly dismissed.
Disallowance under section 10(15) - HELD THAT:- Tribunal in the case of ICICI Prudential Insurance Company Ltd. [2012 (11) TMI 13 - ITAT MUMBAI] has considered the decision of Life Insurance Corporation of India [1977 (11) TMI 25 - BOMBAY HIGH COURT] and in the case of New India Assurance Company Ltd. [1967 (10) TMI 16 - BOMBAY HIGH COURT] the assessee is entitled to get exemption under section 10 of Act, 1961. A similar issue was considered by the Hon’ble Jurisdictional High Court in Writ Petition [2011 (12) TMI 70 - BOMBAY HIGH COURT] has quashed and set aside the notice issued for reopening of the assessment when the Revenue sought to reopen the completed assessment for disallowing the claim of deduction allowed under section 10 of the Act. In the original assessment order. Respectfully following the aforementioned judicial decision we confirm the findings of the Ld. CIT(A) on this issue and dismiss ground No.2 of the appeal.
Disallowance made under section 14A - HELD THAT:- We find that similar issue was considered by the Tribunal [2013 (10) TMI 1130 - ITAT MUMBAI] concluded by holding that the issue is decided in favour of the assessee.
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2015 (2) TMI 1371 - SUPREME COURT
Seeking grant of Bail - rejection of bail on the ground that charge-sheet was not received within time - HELD THAT:- Admittedly, the Appellant surrendered before the Magistrate on 5.7.2013. It is also not disputed that on 3.10.2013 the Appellant moved an application for his release on bail under proviso (a) to Sub-section (2) of Section 167 of the Code. However, the order sheet of the case shows that there is endorsement of the Magistrate on 3.10.2013 that the charge sheet has already been received.
The charge sheet against the Appellant, in the original record, shows that the Investigating Officer signed it and submitted the same on 30.9.2013. Though the clerk concerned has not made any endorsement as to when actually the charge sheet was received, but there is endorsement of the Chief Judicial Magistrate which shows that he has mentioned "seen" on 3.10.2013 and signed at the top of the first page of the charge sheet. Order sheet of the court of the Magistrate also corroborates that on 3.10.2013 the clerk concerned reported to Chief Judicial Magistrate that the charge sheet had already been received.
In CHAGANTI SATYANARAYAN VERSUS STATE OF AP. [1986 (5) TMI 265 - SUPREME COURT], it has been held by this Court that period of ninety days Under Section 167(2) of the Code shall be computed from the date of remand of the accused and not from the date of his arrest Under Section 57 of the Code. However, in the present case, we have to see the relevant date as the date when the accused surrendered and remanded by the court.
The High Court has not erred in law in dismissing the petition Under Section 482 of the Code, and upholding the refusal of bail to Appellant prayed by him Under Section 167(2) of the Code - Appeal dismissed.
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2015 (2) TMI 1370 - KARNATAKA HIGH COURT
Dishonor of Cheque - legally enforceable debt or liability or not - acquittal of the accused - complaint was properly presented and prosecuted or not? - HELD THAT:- The Power of Attorney Holder who presented the complaint in his sworn statement did not utter anything as to how he acquired the knowledge about the transaction. Verifying the complainant and swearing to an affidavit in the capacity of legal consultant and Power of Attorney does not necessarily mean that he has witnessed the transaction in due course in the capacity of agent or possess due knowledge of the transaction. In the absence of specific assertion in this regard, in the complaint and his sworn statement placed by way of affidavit, the court is under no obligation to draw favorable presumption about the competency of the deponent of the affidavit. That vitiates the very cognizance taken by the Magistrate and issue of process ordered.
The cheque is issued by the accused in respect of the loan availed by her husband. The hire purchase loan agreement is not produced in evidence. The copy of the hypothecation agreement deed authorizes the payee for presentation of the postdated cheques issued towards installment payments of the loan amount. That being so, it is clear that the cheque in question was taken as security to the loan amount which had to be paid in installments - There is no evidence from his side about the actual amount due after the vehicle in question was seized. Basic requirement of offence under Section 138 of the N.I. Act, is, the Cheque ought to have been issued for discharge in whole or in part of any debt or other liability, but that is not established by the complainant.
It needs to be asserted that the case of the appellant fails for another reason also i.e. not making out a case for an offence punishable under Section 138 of N.I. Act. and the impugned judgment does not call for interference - Appeal dismissed.
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2015 (2) TMI 1369 - KARNATAKA HIGH COURT
Disallowance of payment to the sub-contractors @ 30% - payment was made by the respondent-assessee to the sub-contractors, who in turn made payment to the labourers for clearing goods on the port - assessee has submitted the very fact that 70% of the payment made has been allowed by the Assessing Officer would be a admission on the part of the Department that the sub-contractors were carrying on the business of providing labourers to the respondent-assessee and hence the genuineness of the transaction cannot be doubted - THAT:- Once 70% of the payment made to the sub-contractors by the respondent-assessee is accepted, the business nexus between the respondent-assessee and the sub-contractors cannot be disputed. The Assessing Officer also did not doubt the genuineness of the business relationship but the only question which was decided by the Assessing Officer was with regard to the quantum of the transaction. In our opinion, there was no reason given by the Assessing Officer to disallow 30% of the payment made by the respondent-assessee to the sub-contractors.
Merely because in the earlier years the respondent-assessee had made payment to the labourers directly and for the assessment year in question they had shifted the mode of payment through the sub-contractors, cannot make the entire transaction doubtful. The expenditure incurred by the respondent-assessee for the purpose in question through the sub-contractors cannot be said to be prohibited by law. Unless the payment through a sub-contractor is prohibited by law, merely because the assessee has switched over from direct payment mode to payment through sub-contractor cannot be said to be a reason for attracting the provisions of Section 37 of the IT Act and disallowing the expenditure incurred by the assessee. It is not disputed that the normal practice in the line of the business of the assessee is to pay certain extra amounts to port labourers as speed money for promptly and speedily carrying out the labour work of handling cargo beyond working hours.
In our opinion, the ratio of the decision in the Konkan’s case[2008 (7) TMI 362 - KARNATAKA HIGH COURT]applies to the facts of the present case. The only difference in the said case is that the payment was made directly to the labourers whereas in the present cases the payment has been made through sub-contractors, which would not make any difference as making payment to labourers through sub-contractors is not prohibited by law and thus would be permissible. No substantial question of law.
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2015 (2) TMI 1368 - SUPREME COURT
Dishonor of Cheque - insufficiency of funds - arraigning of a company as an accused - section 141 of N I Act - HELD THAT:- It was held in the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] where it was held that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.
The judgment rendered in Aneeta Hada's case is also applicable to the case of the accused-appellant - Appeal allowed.
Dishonor of Cheque - Appellants-accused have taken the defence that the alleged cheque was not duly recovered but it was security of loan - HELD THAT:- Though judgment in Aneeta Hada's is prospective but is applicable in all pending cases, including the trial, appeal, revision and special leave petition/appeal pending before this Court. The case of the Appellant being covered by the decision in Aneeta Hada's case, we set aside the impugned judgment and conviction passed by the trial court as affirmed by the appellate court - Appeal allowed.
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