|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1260 Records
-
2015 (6) TMI 1267 - DELHI HIGH COURT
Dishonour of cheque - pronote was signed by the witnesses in his presence or not - rebuttal of presumption - HELD THAT:- It is settled law that it would not be open to this Court to set aside an acquittal unless the judgment of the acquittal under appeal appears to be perverse, or based on misappreciation of the evidence.
Assuming, that the cheque had been handed over to the complainantappellant in blank by the respondent, the purpose was to enable the appellant to encash it, in the event that the loan was not repaid. Thus, the respondent gave an implied authority to the complainant-appellant to fill up the cheque and encash it - Similarly, once the pronote has been signed and executed by the respondent admittedly, it acts as an acknowledgment of the transaction. The accused-respondent has not been able to produce any evidence in his support that the pronotes had been executed for a loan of only Rs. 50,000/-.
It is settled law that the burden to rebut the presumption under Section 139 NI Act is on the accused. The burden on the accused to rebut the presumption is only to the extent of “preponderance of possibilities”, whereas the complainant has to prove its case beyond reasonable doubt. It has also repeatedly been observed that the accused can rely on the evidence brought on record by the complainant to rebut the presumption, and it is not necessary that he has to lead separate/direct evidence. However, in the present case, the accused-respondent has not been able to rebut the presumption of the cheque having been issued for consideration of the amount reflected in the cheque, in the face of the pronotes.
The accused is obliged to set up a probable defence. The defence cannot be only a “possible” defence. It cannot be premised on the mere ipse dixit of the accused. There should be some credible material or circumstance available on record which should lead the Court to conclude that the defence/explanation for issuance of the dishonoured cheque is a probable one. For the reasons aforesaid, the findings and conclusions drawn by the learned MM on facts is palpably wrong, and it is also based on an erroneous view of the law.
The impugned judgment is set aside. The accused is convicted of the offence under Section 138 of the NI Act - Petition allowed.
-
2015 (6) TMI 1266 - ITAT MUMBAI
Levy of penalty u/s 271(1)(c) - exemption u/s 10(38) for the said LTCG on account of sale of shares denied - HELD THAT:- In the case of levy of penalty, it should be proved on the file that the particulars furnished by the assessee were inaccurate particulars of income or that there was concealment of income. Every case of confirmation of disallowance cannot be regarded as a case of furnishing of inaccurate particulars of income or concealment of income.
Even it cannot be said that this case of the assessee was a case of no evidence at all. The assessee has submitted evidence in the shape of contract note, purchase bills, sale bills, bank statement, D-mat account statement reflecting the sale of shares etc. The evidence produced on the file by the assessee has not been proved wrong or false.
As decided in the case of “CIT vs. Upendra V. Mithani” [2009 (8) TMI 1159 - BOMBAY HIGH COURT] has observed in the matter of levy of penalty u/s 271(1)(c) that if the assessee gives an explanation which is unproved but not disproved i.e. it is not accepted but circumstances do not lead to the reasonable and positive inference that the assessee’s case is false, then no penalty can be imposed in such cases. When the facts of the case in hand the levy of penalty cannot be held to be justified in this case. The same is accordingly ordered to be deleted. Appeal of the assessee allowed.
-
2015 (6) TMI 1265 - AUTHORITY FOR CLARIFICATION AND ADVANCE RULING
Classification of goods - rate of tax on sale of IT Products/Cables and other Apparatus from their Trading Unit located in Free Trading and Warehousing Zone (FTWZ), J Matadee FITZ, Mannur and Vallarpuram Village, Sriperumbudur Taluk, Kanchipuram District, Tamil Nadu to another trading unit in the same FTWZ, developed under Indian SEZ Act, 2005 - HELD THAT:- In order to effect bond-to-bond transactions involving goods or services, trader’s warehouse located ina SEZ/FTWZ has to apply to the Appropriate Customs. Authority having jurisdiction over the area where the SEZ/FTWZ is located, to operate the warehouse and to transact from thereon’ in respect of goods or services. The depositor of the warehoused goods, to transfer the bonded goods from one warehouse located in SEZ/FTWZ to another warehouse located in same or different SEZ/FTWZ, has to get permission from the Customs Authorities so authorised, as per the legal formalities, prescribed by the Customs Act, 1962.
If all the provisions under SEZ Act, 2005 TN SEZ (Special Provisions) Act, 2005, Section-5(1) and (2) of CST Act, 1956 and Section-67 of the Customs Act, 1962, the transfer of bonded goods from one warehouse in FTWZ to another bonded warehouse located in the same FTWZ or another FTWZ is to be treated as having taken place beyond the Customs Frontiers of India not cleared for home consumption and would therefore not falling under the purview of either the TNVAT Act, 2006 or the CST Act, 1956. Summarily, the transfer of warehoused goods in a bonded warehouse located in FTWZ to another warehouse located in same or another FTWZ, is to be treated as sale or purchase effected in the deemed foreign territory, i.e. beyond the Customs Frontiers of India, not liable to tax under TNVAT Act, 2006 or under CST Act, 1956.
It may therefore be clarified that the sale of IT products/cables ‘and other apparatus from their Trading Unit located in Free Trading and Warehousing Zone (FTWZ), J Matadee FTZ, Mannur and Vallarpuram Village, Sriperumbudur Taluk, Kanchipuram District by the applicant -dealer to another dealer who is also having trading and warehousing facility in the same FTWZ or in another FTWZ is eligible for exemption under TNVAT Act, 2006. Dated this the 22nd day of June 2015.
-
2015 (6) TMI 1264 - MADRAS HIGH COURT
Forging of sale deed in respect of a theater owned by her - offences under Section 467, 468, 471 and 420 IPC - HELD THAT:- This Court perused both the FIRs. Crime No.216 of 2012 relates to an incident that took place on 24.04.2012, where the defacto complainant/Bhuvaneswari was abused and assaulted by Subramaniam and his family members and that is why, the police registered a case for offences under Section 294[b], 323 and 506 [i] IPC. Whereas, in this complaint, Bhuvaneswari alleged that Subramaniam has forged the sale deed in respect of a theater owned by her and that is the reason, why the police have registered a case for offences under Section 467, 468, 471 and 420 IPC. Thus, the allegations in Crime No.216 of 2012 and Crime No.179 of 2015 are totally different.
That apart, this Court cannot go into disputed question of facts in a petition under Section 482 Cr.P.C. The Hon'ble Supreme Court in State of Haryana Vs Bhajan Lal [1990 (11) TMI 386 - SUPREME COURT] has laid down the guidelines for quashing an FIR. The complaint in Crime No.179 of 2015 discloses the commission of cognizable offence and therefore, this Court cannot quash the FIR, in view of the law laid down by the Hon'ble Supreme Court in the aforesaid judgment.
Petition dismissed.
-
2015 (6) TMI 1263 - CALCUTTA HIGH COURT
Dishonour of Cheque - adequate opportunity was given to the petitioner for cross-examination - denial of further cross-examination - HELD THAT:- Adequate opportunity was given to the petitioner for cross-examination of P.W.1. No specific case has been made out as to how the petitioner would be prejudiced in the instant case if further cross-examination is not allowed as the courts below have correctly recorded that only ambiguous questions were cited for further cross-examination.
The prayer for further examination of P.W.1 is not a bona fide one and the same was made solely for the purpose of delaying the proceeding and was rightly turned down.
This revision petition is dismissed with a direction upon the trial court to conclude the trial as expeditiously as possible without granting unnecessary adjournments to the either of the parties.
-
2015 (6) TMI 1262 - ITAT CHENNAI
Amount written off as irrecoverable - failure of the assessee in producing the relevant particulars relating to the discounts and also for the reason that the debtors are undertakings of the State Government, the CIT(A) has confirmed the addition made by the AO - HELD THAT:- It is a limited request of assessee that he be given one more opportunity for filing the relevant details, if any, before the AO for demonstrating that debts in question pertain to discounts given by the assessee to the said corporations. He also mentioned that in remand proceedings, the AO can also adjudicate the issue relating to allowing the said debts as business loss. We order accordingly and direct the AO to adjudicate the issue afresh after considering the material placed before him even it means furnishing of additional evidences for the first time before him. Accordingly, ground No.2 is allowed for statistical purposes.
Export promotion expenses - Disallowance of claim of the assessee primarily for want of details - Claim of the assessee that the said amount constitutes reimbursement of expenses - HELD THAT:- We find it relevant to remand this issue also to the file of the Assessing Officer for want of relevant facts. AO shall adjudicate this issue afresh considering the details, if any, filed before him, after giving an opportunity of being heard to the assessee. He shall also consider the orders of the ITAT in the assessee’s own case for other assessment years. This ground is also allowed for statistical purposes.
Nature of expenditure - computer software expenses - HELD THAT:- We find that there is no relevant facts on the record to adjudicate if the said expenditure falls in revenue or capital field. So, all the parameters relating to the nature of capital asset should be brought on record by the AO. It is not clear as to how the ‘crash recovery software’ gives enduring benefits and is capable of yielding income on stand alone basis.
As decided in CIT vs Amway India Enterprises [2011 (11) TMI 4 - DELHI HIGH COURT] has provided certain guidelines to decide on capital or revenue nature of the expenses in software. In the remand proceedings, the Assessing Officer is directed to decide the issue afresh after considering the above cited judgments relating to the issue under consideration and granting the assessee a reasonable opportunity of being heard.
Appeal of the assessee is allowed for statistical purposes.
-
2015 (6) TMI 1261 - ITAT CHENNAI
Determination of taxable income - Tribunal reduced the assessed income[deleted majority of the additions] by placing reliance on the additional material filed - Both, the assessee and the Department filed appeals before the High Court in Ku. Pa. Krishnan [2012 (8) TMI 130 - MADRAS HIGH COURT] who inturn found that the Tribunal ought not have gone into the additional evidence, rather should have remitted the matter back to the file of the AO - HELD THAT:- In view of the judgment of the High Court setting aside the order of the Tribunal and remitting back the matter to the file of the Assessing Officer, it is a bounden duty of the Assessing Officer to consider all the additional evidence filed by the assessee and thereafter decide the matter in accordance with law.
Unfortunately, inspite of direction of the High Court, the Assessing Officer has not referred any of the additional evidence filed by the assessee in the impugned assessment order.
As rightly submitted by assessee and the Ld. Sr. Special Public Prosecutor for the Department, AO has not considered the additional evidence filed by the assessee. Therefore, there is a clear violation of the direction issued by the High Court. This Tribunal is of the considered opinion that when the High Court directed the AO to consider the additional evidence, the Assessing Officer has no other option except to consider the additional evidence filed by the assessee and discuss the same in the assessment order by making a reference in respect of each and every additional evidence filed by the assessee and thereafter the Assessing Officer has to pass a speaking order.
Since the direction of the High Court was not complied with and the Assessing Officer failed to consider the additional evidence filed by the assessee, this Tribunal is of the considered opinion that the matter needs to be reconsidered by AO as directed by the High Court. Appeal of the assessee is allowed for statistical purposes.
-
2015 (6) TMI 1260 - ITAT MUMBAI
TP Adjustment - International Transactions which its associate concern and the assessee has failed to furnish the report from accountant in the prescribed form containing the TP Study as per provisions of section 92E - HELD THAT:- Admittedly, the assessee has entered into International Transactions which its associate concern and the assessee has failed to furnish the report from accountant in the prescribed form containing the TP Study as per provisions of section 92E of the Act. Hence, the assessing officer has proceeded to determine the ALP of the International Transactions by disallowing 10% of the purchase value. Before us, both the parties have submitted that the ALP has to be determined only in the manner prescribed under the Act.
When the Act prescribes a particular procedure, it is the duty of both the parties to adhere to those procedures. We are of the view that this issue of case for a fresh examination. We direct the assessee to furnish the report of the accountant before the AO in the set aside proceedings and there after the AO shall proceed to examine this matter in accordance with the law.
Disallowance of advertisement and public relation expenses - AO disallowed the claim of the assessee, apparently by invoking the Explanation given u/s 37(1) - HELD THAT:- We notice that the tax authorities have taken a generalized view that the advertisements have been banned by Government regulations and hence these expenses are not allowable. In fact, the tax authorities seem to have not examined the break-up details of the advertisement expenses. It is the submission of the assessee that these expenses were not incurred on public advertisements.
The assessee has furnished relevant regulations - A perusal of the same would show that the restriction is placed on the News papers and Cable TV operators in carrying advertisement of liquors. It is not the case of the department that the assessee has carried out advertisement in news papers and cable TV channels, which is in fact prohibited. It is also submitted that the advertisement expenses incurred by the assessee was allowed in the earlier years. Under these set of facts, we are of the view that the advertisement expenses incurred by the assessee are not hit by the Explanation given u/s 37(1) of the Act. Accordingly, we set aside the order of Ld CIT(A) on this issue and direct the AO to allow this expenses claimed by the assessee.
Disallowance of Excise Vend Fee and Octroi Duty - HELD THAT:- According to the assessee, the above said payments have been made by M/s Wine Enterprises on behalf of the assessee and hence it has accounted for the same and reimbursed the amounts in the subsequent year. This claim of the assessee has not been examined by the tax authorities. At the same time, we notice that the assessee has also failed to substantiate its claim by furnishing the relevant documents and it has also failed to show that M/s Wine Enterprises has not claimed the impugned payments as its expenditure.
Hence, we are of the view that this issue requires fresh examination at the end of the AO. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the AO for fresh examination. Assessee is also directed to furnish necessary documents to substantiate its claim.
-
2015 (6) TMI 1259 - ITAT MUMBAI
Nature of expenditure - software expenses - revenue or capital in nature - Expenses incurred on registration of domain was disallowed by the AO on the plea that same is capital in nature - HELD THAT:- Hon’ble Bombay High Court in the case of Raychem RPG Ltd. [2011 (7) TMI 953 - BOMBAY HIGH COURT] has held that software did not form part of the profit-making apparatus, it facilitate the assessee’s trading operations or enable the management to conduct the assessee’s business more efficiently or more profitably but it was not in the nature of profit-making apparatus. Therefore, expenditure on software is to be allowed as revenue expenditure.
Hon’ble Delhi High Court in the case of Asahi India Safety Glass Ltd. [2011 (11) TMI 2 - DELHI HIGH COURT] has held that software expenditure is incurred not to create new asset or a new source of income but to upgrade the system. Even the extent of expenditure is not a decisive factor in determining its nature. It was held that software expenditure so incurred is revenue in nature.
We do not find any merit in the action of the lower authorities for treating software expenses as capital in nature. Accordingly, the AO is directed to allow software expenses as revenue expenditure.
Disallowance of repairs and maintenance, renovation expenses by treating the same as capital - contention of AO was that the said expenses add on the cost of the system and in turn gives benefit of enduring nature to the assessee’s business - HELD THAT:- The amount incurred on purchase of Ram and hard disk drive is recurring in nature and no advantage of enduring benefit is achieved by the assessee. Accordingly, there is no justification for treating the same as capital expenditure. In regard to the expenditure incurred on interior work done at Bangalore office no new asset was created but expenditure was made to have a better look and facilitate efficient working in the office of the rented premises. Accordingly, we do not find any merit in the action of the lower authorities for treating these expenses as capital in nature.
-
2015 (6) TMI 1258 - ITAT RAIPUR
Addition on low gross profit - assessee is in wholesale business of purchase and sale of iron, steel, plates, etc - HELD THAT:- AO has not brought on record any cogent material in support of the claim that assessee’s books of account are liable to be rejected. A very slight decline in gross profit ratio cannot give rise to rejection of books of account in this case. There is no rule that the gross profit ratio should follow a constant ratio with mathematical precision. We further note that there has been a huge and over 100% increase in the turnover as compared to preceding year. Hence, the explanation that increase in turnover has affected margin cannot be brushed aside. In these circumstances, we uphold the order of the learned CIT(A) and delete the addition on account of low gross profit. Ground no.1, is dismissed.
Addition u/s 40A(2)(b) on account of interest paid - Assessee submitted before us that bank interest rate cannot be compared with the rate of interest on unsecured loan and that even bank charges interest @ 24% on credit card - As regards loan from Shri Trilochan Singh Chawla, he submitted that it was for a short period of six months - HELD THAT:- We agree that the interest paid on unsecured loan cannot be compared with bank interest rates. Furthermore, similar rate of interest has been paid by the assessee in other assessment years which has been accepted by the Revenue. The instance of Shri Trilochan Singh Chawla, has been suitably distinguished by the learned Counsel. In these circumstances, in our considered opinion, the rate of interest paid by the assessee to the persons specified under section 40A(2)(b) cannot be considered to be excessive. Accordingly, we uphold the order of the learned CIT(A). Ground no.2, is dismissed.
Assessee had paid commission to two persons who are the persons specified under section 40A(2) - HELD THAT:- We note that there has been substantial increase in the turnover of the assessee, hence, the claim that it was the efforts of the commission recipients that brought a huge increase in the turnover cannot be rejected. It is a settled law that the Assessing Officer cannot sit into the shoes of the assessee and decide as to what is reasonable. Accordingly, we uphold the order of the learned CIT(A). Ground no.3, is dismissed.
Addition on low household withdrawals - referring to the capital gains of the assessee AO opined that all the members of the assessee family are bestowed with substantial accumulation of capital. Making an estimate of income and drawings shown by the members of the assessee, AO was of the opinion that withdrawal of ₹ 3,480 per month per member was not sufficient - HELD THAT:- We agree that the Assessing Officer has made addition on presumption. The Assessing Officer has computed that per member per month withdrawal by the assessee’s family was ₹ 3,500. Hence, we do not find any reason to interfere with the order of the learned CIT(A). Accordingly, ground no.4 is dismissed.
-
2015 (6) TMI 1257 - ITAT RAIPUR
Rejection of books of accounts - Addition by applying NP @0.73% by invoking provisions u/s 145(3) - HELD THAT:- We are also of the opinion that the graph of the business profit is always not a straight line but it fluctuates year to year. The reasons for the fluctuations as given by the assessee that there was higher expenditure of electricity, stated to be main ingredient for the manufacturing of steel products and MS Ingots. It is also worth to mention that the AO has not given any specific reason for rejection of books of accounts.
When the day to day consumption register was maintained and the sales/purchase were stated to be verifiable by supporting bills/vouchers, hence in our opinion as well; the invoking of the provisions of section 145 that too in a cursive manner was not appreciable in the eyes of law. For this legal proposition few case laws have been cited but keeping brevity in mind same are not to be discussed in detail. We, therefore, uphold the view taken by the ld. CIT(A). This ground is dismissed.
-
2015 (6) TMI 1256 - THE SECURITIES AND EXCHANGE BOARD OF INDIA, MUMBAI
Mis-selling of schemes to the public - "Ponzi Scheme" - company refused to refund the money invested by the complainant in June 2012, when the complainant approached the company for refund of the money as she wanted to discontinue with the plan - preliminary inquiry into whether or not Citrus is carrying on activities of 'collective investment scheme' in terms of Section 11AA of the SEBI Act - HELD THAT:- Promoters/Directors/persons in charge of the business of Citrus. Incidentally, the same Directors are also the promoter/directors of Royal Twinkle against whom directions were passed by SEBI on March 07, 2014. Furthermore, SEBI has received several investor complaints against Citrus alleging that Directors of Royal Twinkle are now running their collective investment schemes through Citrus.
It is obvious that the schemes launched by Royal Twinkle and Citrus are identical in nature and the same management is running the schemes of both the companies i.e. Royal Twinkle and Citrus. This fact is in direct contravention of the assertion made in the company's letter wherein they stated that they have not offered similar holiday plans through its associates, group etc.
This indicates that Citrus is deliberately making false/misleading statements. At this juncture, SEBI cannot be a mere spectator ignoring the investor complaints- specially in the light of the fact that the quantum of funds mobilized from public is a pretty sizeable ₹ 777.04 Crores as on March 31, 2013. As detailed before, Citrus has steadfastly refused to give the latest and relevant information to SEBI despite being given several opportunities to do so. The trail of all these events as well as the conduct of Citrus lead me to draw a prima facie inference that the refusal to give information is nothing but an attempt to conceal the real nature of its fund mobilizing activities.
Protecting the interests of investors is the first and foremost mandate for SEBI. Therefore, steps have to be taken in the instant matter to ensure that only legitimate investment activities are carried on by Citrus and no investors are defrauded. Further, in order to safeguard the assets/property acquired by Citrus and its promoters/directors using the funds collected from the investing public until full facts and materials are brought and final decision is taken in the matter, it is incumbent on SEBI to take preventive action by way of an immediate measure.
Thus no other alternative but to take recourse to an interim order against Citrus and its Directors for preventing them from further carrying on with its existing fund mobilizing activity by launching 'collective investment scheme', without obtaining registration from SEBI in accordance with law.
This order shall be treated as a show cause notice and Citrus and its Directors may show cause as to why the plans/schemes identified in this order should not be held as a 'collective investment scheme' in terms of the Section 11AA of the SEBI Act and the CIS Regulations and why appropriate directions under the SEBI Act and CIS Regulations, including directions in terms of Regulations 65 and 73 of the CIS Regulations should not be issued against them.
Citrus and its abovementioned Directors may, within 21 days from the date of receipt of this Order, file their reply.
-
2015 (6) TMI 1255 - MADRAS HIGH COURT
Violation of the principles of natural justice - rectification application not cosidered - grievance of the petitioner is that when the petitioner had already filed application seeking certain rectification giving three clear reasons and found no response - without issuing any notice on the pending application under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 seeking rectification, ex-parte order passed - HELD THAT:- The learned Additional Government Pleader (T) is unable to support the impugned order. The reason is that when the petitioner's application filed under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 seeking certain rectification on three reasons has not been considered, he has come to this Court by filing writ petition no.10546/2011 and this Court also directed the respondent to pass appropriate order on the pending application dated 31.03.2011, while so, the first respondent without issuing any notice and without giving any reasonable opportunity has passed the impugned exparte order.
The impugned order is set aside and the matter is remanded back to the first respondent to pass a speaking order after giving personal hearing to the petitioner - petition allowed by way of remand.
-
2015 (6) TMI 1254 - JHARKHAND HIGH COURT
Cognizance u/s 276B r.w.s. 278B of the Income Tax Act and u/s 409/34 of the Indian Penal Code - tax deducted at source from the employees of H.E.C.was not deposited with the Income Tax Department - whether petitioner will not come under the definition of employee in view of Section 2(35) of the Income Tax Act, 1961? - HELD THAT:- As apparent that the petitioner was neither regular employee nor he comes within the meaning of employee u/s 2(35) of the Income Tax Act, 1961. The terms on which services of the petitioner was hired by H.E.C. does not disclose that he was in any manner responsible for depositing the T.D.S. with the Income Tax Department.
Since prima facie it does not appear that the petitioner is in any manner responsible for the offences alleged, we feel inclined to allow this petition by invoking the power conferred upon this Court u/s 482 Cr.P.C. Accordingly, the order of cognizance dated 04.10.2001 passed by learned I/c Special Judge, Economic Offence, Ranchi in connection with Complaint Case to the extent of prosecution of present petitioner stands quashed. The order impugned shall remain in force so far remaining accused persons are concerned, unless the order is not set aside wholly - M.P. stands allowed.
-
2015 (6) TMI 1253 - MADHYA PRADESH HIGH COURT
Suit for declaration and permanent injunction - legal provision to delete the name of dead defendant - Order 1 Rule 10(2) C.P.C. - Scope f the words 'name of any party improperly joined' - HELD THAT:- The word improperly is wide enough to include the name of a defendant who was no more when suit was filed. Learned counsel for the parties, during the course of arguments, fairly admitted that defendant No.2 died even before filing of the suit. If plaintiff was not aware about his death and impleaded him as defendant No.2, it can be said that he was improperly impleaded. Apart from this, no prejudice is caused to petitioner by the impugned order. Thus, it cannot be held that the Court below has committed any error in permitting the deletion of the name of said defendant under Order 1 Rule 10(2) CPC. It cannot be forgotten that the procedural law is made for smooth functioning. It is not made to strangulate the litigants on hyper technical grounds.
There are no error in the impugned order which warrants interference by this Court - petition dismissed.
-
2015 (6) TMI 1252 - ITAT MUMBAI
Penalty u/s.271D & 271E - loans in violation of the provision of Section 269SS - HELD THAT:- We found that in the instant case there was already credit in the account of Mr. Rahul G. Shah, which was not paid in cash but was credited in the name of his wife. Such credit either in the account of Rahul G. Shah was never doubted insofar as there was already credit existing in the books of account of assessee, or crediting this amount in the name of his wife by debiting account of Rahul G. Shah was doubted as non-genuine. The amount of Director’s remuneration credited to the account of Mr. Rahul G. Shah does not amount to any loan by assessee company to R.G.Shah, therefore, the AO was not justified in treating such credit of Director’s remuneration in his account as loan transaction and thereby imposing penalty u/s.271D - No justification for imposition of penalty by assuming that amount crediting in the name of assessee’s wife by debiting assessee’s loan account, which was already there in the books of account amounts to any contravention of provisions of Section 269SS so as to impose penalty u/s.271D&271E. Debiting assessee’s account was treated by the AO as repayment of loan and crediting his wife’s account was treated by the AO as receipt of loan.
Period of limitation - We found that penalty proceedings u/s.274 r.w.s.271D & 271E, were initiated on 2-8-2007. As per Section 275(1)(c), penalty could be imposed only before end of the financial year or within the six months in which the penalty proceedings were initiated. As the later period expired on 31-3-2008, the penalty could have been imposed by that date only. Thus, the penalty imposed in 11-9-2012 was barred by limitation
-
2015 (6) TMI 1251 - ITAT DELHI
Admission of aditional evidences to CIT-A - Additional evidences submitted under Rule 46A before the CIT (A) but the CIT (A) has not admitted the same - HELD THAT:- We find that the Tribunal has earlier restored the matter to the Assessing Officer for providing an opportunity of being heard to the assessee, however, the order was passed ex-parte. The assessee submitted additional evidences under Rule 46A before the CIT (A) but the CIT (A) has not admitted the same. We find from the order of the CIT (A) that the CIT (A) himself recorded that the evidences filed by the assessee goes to the root of the issues.
In this view of the matter, we admit the additional evidences. Accordingly, we set aside the orders of the authorities below and restore the matter back to the file of the Assessing Officer to decide afresh after providing an opportunity of being heard to the assessee. It is ordered accordingly.
-
2015 (6) TMI 1250 - GAUHATI HIGH COURT
Interest of the actual owner of the land inspite of admission of the defendant in cross examination - adverse possession by dint of possession for 8 & 9 years by the defendant can have the right, title and interest by right of adverse possession under Article 64 of the Limitation Act - Chitha mutation can provide the claim of right, title and interest of the defendant over the suit land without having any proof of transfer of title under the transfer of Property Act - inheritance of the property of the person not known for seven years, there is requirement of any declaration under the law for devolution of the land and mutation to the sole legal heir - HELD THAT:- Admitted position of the case is that no sale deed was executed by the father of the plaintiffs to the defendant Section 54 of the Transfer of Property Act, 1882 provides that transfer of tangible immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument. In case the value of the tangible immovable property is less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property and the delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
On the face of this evidence, statutory period of 12 years was not completed to enable the defendant to claim title on the basis of adverse possession. Not only the defendant himself, but his witness D.W.6 also deposed that he had seen Rajendra being in possession of the suit land during his lifetime. The defendant miserably failed to prove the plea regarding adverse possession. The learned lower Appellate Court overlooked the most material part of the evidence of D.W. 1 defendant himself and recorded a perverse finding mat defendant established the plea of adverse possession.
The substantial questions of law will have to be answered in favour of the appellants. The appeal is allowed.
-
2015 (6) TMI 1249 - BOMBAY HIGH COURT
Dishonor of Cheque - discharge of a legally enforceable debt / liability or not - section 138 of NI Act - HELD THAT:- In the present case, the first respondent has admitted the signature on the cheque. The defence is that it was given as a security and not against any legally enforceable liability of the nature as stated by the appellant. The learned Magistrate has considered the evidence led by the parties, in order to see whether the presumption under Section 139 of the Act stands rebutted from paragraph 48 onwards of the judgment. It has been found that the first respondent has shown on preponderance of probability that payment of cheque drawn on ICICI Bank was discontinued in the year 2007.
The first respondent had come with a specific case that the accounts were settled on 23/06/2008 when the outstanding was Rs. 1,10,928/- and the reconciliation statement is produced at exhibit 68/c. Although the learned Magistrate had found on comparing of the signature that the statement exhibit 68/c bears the signature of the representative of the appellant, which is comparable to the invoices produced at exhibit 7/c, however, has not based her finding on the reconciliation statement. In my considered view, the defence set up by the first respondent at the very inception, when he issued the reply to the notice on 31/12/2009, appears to be credible and probable. The appellant had failed to establish on the basis of acceptable evidence that on 31/03/2009, an amount of Rs. 2,92,212/- was due and outstanding against the first respondent.
The finding recorded by the learned Magistrate is a plausible view, recorded on appreciation of oral and documentary evidence on record and it is not shown that the view taken by the learned Magistrate is either perverse or is an impossible view.
Appeal dismissed.
-
2015 (6) TMI 1248 - GUJARAT HIGH COURT
Winding up of Company - restraint on company's Directors, Officers, Agents and Servants from disposing of the movable and immovable properties of the Company during the pendency and final disposal of this petition - HELD THAT:- From the facts and circumstances of the present case, it emerges that the invoices and ledger accounts were also produced for the materials supplied from time to time to the respondent company by the petitioner. The petitioner issued the statutory notice on 5.8.2013, which is duly served to the respondent company. Though the said notice was received by the respondent, no reply was given by the respondent and no payment was made as stated by the petitioner, and therefore, as per the provisions of the Companies Act, the respondent company shall be deemed to be unable to pay the debts.
From the dispute raised by the respondent-company it can be said that such dispute is nothing but an after thought, and therefore, this court is of the opinion that the same cannot be termed as bonafide and reasonable dispute - this Court is left with no option, but to admit this petition - Petition admitted.
........
|
