|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1378 Records
-
2016 (2) TMI 1381 - PUNJAB AND HARYANA HIGH COURT
Application for impleading him as a party to the suit allowed - Order 1 Rule 10 Code of Civil Procedure, 1908 - suit for specific performance of the agreement to sell - no privity of contract between the petitioner-plaintiff and respondent no.4 - HELD THAT:- As per the ration of law laid down by the Hon'ble Apex Court in THOMSON PRESS (INDIA) LTD. VERSUS NANAK BUILDERS AND INVESTORS P. LTD. AND ORS. [2013 (2) TMI 898 - SUPREME COURT], 'a proper party is the person whose presence would enable the Court to completely, effectively and properly adjudicate upon all the matters and issues, though he may not be a person in favour of or against whom a decree is to be made'. So, even if no relief is claimed against a person but, if his presence would enable the Court to completely, effectively and properly adjudicate upon all the matters involved in the suit, he will be considered to be a proper party and got impleaded as a defendant in the suit.
In the instant case also respondent no.4-Ranvir Singh has raised certain issues which requires his presence to enable the Court to completely, effectively and properly adjudicate upon all the matters in issue. Though, no relief has been claimed in the suit against him. But, certainly his rights are likely to be effected from the decision of the suit as he is also seeking the specific performance of the agreement to sell dated 12.08.2006 executed by respondent no.1 in his favour with respect to the same land.
Consequently, no fault can be found with the discretion exercised by the learned trial Court to allow the application filed by respondent no.4 for impleading him as a party to the suit.
There are no illegality in the impugned order calling for interference by this Court while exercising the supervisory powers under Article 227 of the Constitution of India.
The present revision petitions having, no merits, are hereby dismissed.
-
2016 (2) TMI 1380 - PUNJAB AND HARYANA HIGH COURT
Maintainability of suit for declaration and permanent injunction - suit for declaration of possession of land - time limitation - compromise decree required compulsory registration or not - HELD THAT:- In the Instant case, the plaintiff has challenged the resultant decree based on compromise on the ground that she was ailing at the relevant time and was not in a position to give free will for execution of said compromise which ultimately resulted into decree. The ailment with which the plaintiff was suffering at the relevant time was stated to be Epilepsy - In order to substantiate the plea of ailment, the plaintiff got examined Dr. Surjit Singh PW-4, who stated that Jagtar Kaur was suffering from Epilepsy from the years 1976 to 1982 and she got treatment from him upto the year 1984. The deposition of Doctor was not in the context of proving that she was confined on account of Epilepsy and was not in a position to re-capitulate the facts and there was a loss of memory or she was totally incapacitated on account of such ailment in terms of faculty of mind and physical movements.
In view of bar created under Order 23 Rule 3-A CPC, no suit shall lie to set aside the decree on the ground that compromise on which the suit was based was not lawful. At the most the plaintiff could have filed application in the said suit as all the issues are required to be decided in the same suit. Since particulars of fraud have not been pleaded and proved in the case, therefore, the suit was not maintainable in view of bar created under Order 23 Rule 3-A CPC - After the execution of decree the plaintiff cannot presumed to be co-sharer since the decree was based on compromise on account of family settlement. Plaintiff is Bua of the defendants. She was married long back and was laying in her matrimonial house. The decree based on compromise pointed out semblance of interest and was not required to be compulsorily registered as the decree recognized pre-existing right of the defendants and it cannot be said that right was created in favour of defendants for the first time.
Both the questions of law are to be answered in favour of the appellants to hold that subsequent suit is barred in terms of Order 23 Rule 3-A CPC and subsequent decree dated 06.10.1979 was not required to be compulsorily registered.
Since the civil Court decree dated 06.10.1979 was not fraudulent, therefore, filing of suit on 26.08.1983 was patently barred by limitation.
Taking into consideration the facts and circumstances of the case, this Court cannot subscribe the view taken by the lower Appellate Court inasmuch as that the decree based on compromise was legally required to be questioned in the same suit and the subsequent suit is barred in terms of Order 23 Rule 3-A CPC. The plaintiff cannot be held to be co-sharer in the land and suit based on title is within limitation.
Appeal allowed.
-
2016 (2) TMI 1379 - SUPREME COURT
Invocation of writ jurisdiction - HELD THAT:- Ordinarily writ jurisdiction cannot be invoked for directing the authorities to act contrary to law.
Since the High Court has not considered the merits of the appeal preferred before the Division Bench, the matter remanded to the Division Bench for re-hearing the appeal on its own merits without being influenced by any observations made in this order.
Appeal allowed.
-
2016 (2) TMI 1378 - KARNATAKA HIGH COURT
Addition of 1.6% of an expenditure u/s 37(1) - onus to prove the genuineness of expenditure - whether tribunal right in law in restricting the addition to 1.6% in respect of wages instead of 10.3% and 6.6% adopted by the assessing authority? - HELD THAT:- One of the vital basis for the decision of the Tribunal and when this Court has by the aforesaid Judgment in [2015 (7) TMI 536 - KARNATAKA HIGH COURT] has set aside the said order of the Tribunal and has remanded the matter wherein held that on careful perusal of the order passed by the Tribunal, we are of the opinion that the order of the Tribunal cannot be sustained inasmuch as the Tribunal has not applied its mind judiciously to the facts and circumstances of the case. In view of the same, interest of justice requires that the matter has to be re-dealt by the Income Tax Appellate Tribunal, Bangalore.
Thus we find that similar course deserves to be adopted even in the present matter.
-
2016 (2) TMI 1377 - ITAT DELHI
Determination of income - method of accounting adopted for revenue reorganization - Accounting of real estate transactions - AO applying the percentage completion method (PCM) and rejecting the project completion method accounting adopted by the assessee - whether Accounting Standard (AS-9) which sanctions the project completion method, was correctly applicable in the circumstances of the cases? - HELD THAT:- Hon’ble High Court [2015 (11) TMI 1283 - DELHI HIGH COURT] has upheld that conclusion of the ITAT [2012 (4) TMI 621 - ITAT DELHI] that the adoption of PCM is in establish method of accounting and without there being any rationale or new development in the fact and circumstances of the case as well as without bringing out any defect on record in the accounting procedure adopted by the assessee, the revenue could not have concluded that the project completion method was not appropriate for the assessee. Hence, order of Hon’ble High Court is also applicable in favour of the assessee to the present case pertaining to AY 2010-11 and accordingly sole ground of the revenue being devoid of merits is dismissed in the result appeal of the revenue is dismissed.
-
2016 (2) TMI 1376 - SUPREME COURT
Compensation on acquisition of land - Fixation of the land value based on acquisition proceedings initiated in 1981 in Village Judian - HELD THAT:- The pre-amended provision put a cap on the maximum; the compensation by court should not be beyond the amount claimed. The amendment in 1984, on the contrary, put a cap on the minimum; compensation cannot be less that what was awarded by the Land Acquisition Collector. The cap on maximum having been expressly omitted, and the cap that is put is only on minimum, it is clear that the amount of compensation that a court can award is no longer restricted to the amount claimed by the applicant. It is the duty of the Court to award just and fair compensation taking into consideration the true market value and other relevant factors, irrespective of the claim made by the owner.
In Bhag Singh and Others v. Union Territory of Chandigarh BHAG SINGH VERSUS UT. OF CHANDIGARH THRU LAND ACQUISITION COLLECTOR [1985 (8) TMI 373 - SUPREME COURT], this Court held that there may be situations where the amount higher than claimed may be awarded to the claimant.
In Krishi Utpadan Mandi Samiti v. Kanhaiya Lal [2000 (9) TMI 1092 - SUPREME COURT], this Court held that under the amended provisions of Section 25 of the Act, the Court can grant a higher compensation than claimed by the applicant in his pleadings.
In the case of the appellants herein, it is an admitted position that the properties do not abut the national highway. Admittedly, it is situated about 375 yards away from the national highway and it appears that there is only the narrow Nahan Kothi Road connecting the properties of the appellants to the national highway. Therefore, it will not be just and proper to award land value of Rs.250/- per square yard, which is granted to the property in adjoining village. Having regard to the factual and legal position obtained above, we are of the considered view that the just and fair compensation in the case of appellants would be Rs. 200/- per square yard.
These appeals are disposed off fixing the land value at Rs. 200/- per square yard and the appellants shall also be entitled to all the statutory benefits. The amount as above shall be paid and deposited after adjusting the deficit court fee, if any, before the Executing Court within a period of three months from today.
-
2016 (2) TMI 1375 - CHHATTISGARH HIGH COURT
Disallowance of deduction u/s 80IA r.w.s. 80IA(4)(iv) - power generated by the Respondent partly consumed and partly sold and the rate with regard to the latter - Appeal against MAHENDRA SPONGE AND POWER LTD. [2015 (6) TMI 1243 - ITAT RAIPUR] wherein held on this very fact that the said assessee was a manufacturer of Iron steel and captive power plant has supplied electricity to its manufacturer unit which was at higher rate than the power supplied to Chhattisgarh State Electricity Board and computation of the market value of the power is correct after considering it with the rate of power available in the open market namely the price charged by the Board.
HELD THAT:- We find that the issue has been decided in the case of M/S GODAWARI POWER & ISPAT LTD. [2013 (10) TMI 5 - CHHATTISGARH HIGH COURT] as held market value of the power supplied to the Steel-Division should be computed considering the rate of power to a consumer in the open market and it should not be compared with the rate of power when it is sold to a supplier as this is not the rate for which a consumer or the Steel- Division could have purchased power in the open market. The rate of power to a supplier is not the market rate to a consumer in the open market - AO committed an illegality in computing the market value by taking into account the rate charged to a supplier
Sitting in coordinate jurisdiction, there is no occasion for us to re-examine the matter and arrive at any other determination. The fact that a Special Leave Petition may have been preferred against the same and in which there is no interim order, does not persuade us to entertain this appeal.
-
2016 (2) TMI 1374 - PUNJAB AND HARYANA HIGH COURT
Denial of indemnity and a provision for recovery granted to the insurer - seeking for enhancement - HELD THAT:- At the Appellate Court, the owner has filed an application under Order 41 Rule 27 CPC that has elicited through RTI a response to say the licence number had been wrongly given as 18690/Ag/2003 when it was actually 16690/Ag/ 2003 and that it had been issued in the name of Balkar Singh. A response through RTI is of a public officer and it is a public document and would require no further corroboration in the manner contemplated under Section 77 of the Evidence Act. The document must be taken to be true of what its recitals state. The certified copy of the licence issued also shows that the licence had been renewed at the DTO Office at Mansa on 26.08.2008, which was valid up to 19.09.2011. This also shows that the driver had a valid driving licence at the relevant time. The additional evidence is relevant and important to decide that the owner and driver were entitled to full indemnity. The award denying indemnity and providing for a right of recovery against for the insurer is set aside.
The appeals filed by the owner and driver are allowed - The amount deposited by the owner and driver at the time of preferring the appeals are ordered to be returned to the owner.
-
2016 (2) TMI 1373 - ITAT LUCKNOW
Penalty u/s 271D - foundation of the penalty proceedings not in existence - whether no proceedings were initiated or pending in respect of the captioned assessment year, penalty proceedings u/s 271D or 271E can be initiated? - case of the assessee is that the original assessment order was passed by the Assessing Officer u/s 143(3) on 08/10/2009 and thereafter, learned CIT passed order u/s 263 of the Act as per which learned CIT set aside the said assessment order dated 08/10/2009 and directed the Assessing Officer to re do the assessment - Subsequently, the order of learned CIT u/s 263 of the Act was set aside by the Tribunal and therefore, now the surviving order is the original assessment order passed by the Assessing Officer u/s 143(3) on 08/10/2009
HELD THAT:- As per the penalty order passed u/s 271D on 27/11/2012, we find that the same is on the basis of fresh assessment order passed by the Assessing Officer u/s 144/263 on 28/12/2011, which does not survive because the order of learned CIT u/s 263 was set aside by the Tribunal and therefore, the consequential order of the Assessing Officer u/s 144/263 does not survive. It is also seen that the notice u/s 271D was issued on 11/05/2012 and 12/10/2012 and the order u/s 271D was passed on 27/11/2012.
As decided in Baldev Singh [2012 (2) TMI 650 - ITAT CHANDIGARH] there is no merit in initiation of penalty proceedings u/s 271D and 271E because no proceedings for the relevant year were pending at the relevant point of time. In the present case also, when proceedings were initiated u/s 271D on 01/05/2012, no proceedings were pending in respect of the present assessment year. In fact, the original assessment order was passed by the AO u/s 143(3) on 08/10/2009 and subsequent assessment year u/s 144/263 was also already passed on 28/12/2011 and this is admitted position that in course of original assessment proceedings completed on 08/10/2009, there was no whisper about initiation of proceedings u/s 271D of the Act.
In our considered opinion, under the facts of the present case, this Tribunal order rendered in the case of Baldev Singh (supra) and also in the case of Manohar Lal [2011 (1) TMI 538 - PUNJAB AND HARYANA HIGH COURT] are squarely applicable and hence, respectfully following these judgments, we hold that the penalty imposed by the AO in the present case is not valid because the initiation of penalty proceedings is not valid in the eyes of law. We, therefore, delete the penalty.Apeal of the assessee stands allowed.
-
2016 (2) TMI 1372 - ITAT MUMBAI
Validity of reopenIng of assessment - Notice after a period of four years - reasons to believe - HELD THAT:- We are of the opinion that if the AO wants to invoke the provisions of section 147 after a period of four years, he has to compulsorily elaborate that there was failure on part of the assessee to disclose truly and fully the relevant facts to decide the taxability of that particular year. The courts are of the view that not only the fact of failure of the assessee has to be mentioned it has to be explained as to how assessee had failed and his failure ended in under assessment/escapement of income.
Where the provisions of section 147 are being invoked after the period of four years from the end of the relevant assessment year, in addition to the AO having reason to believe that any income chargeable to tax had escaped assessment, it must also be established as a fact that such escapement of assessment had been occasioned by either the assessee failing to make a return under section 139 either, etc. , or by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year.
Undisputed facts of the present cases are that the assessee original assessment was completed u/s. 143(3) of the Act, that the AO had not mentioned, in the reasons recorded for reopening of the assessments, that because of the failure of the assessee to disclose the material facts truly and fully income had escaped assessment. As the basic and first pre-requisite for issuing the notice is not fulfilled, so, the assessment orders passed in pursuance of such notices have to held to be invalid. Considering the facts and circumstances of both the cases, we are of the opinion that the orders of the FAA does not suffer from any legal or factual infirmity. So, upholding his orders for both the years i. e. 1997-98 and 1998-99, we decide the effective ground of appeal against the AO.
Reopening of assessment - whether assessee was entitled for deduction of the whole lease rent ? - HELD THAT:- No new material had come in possession of the AO to disturb the completed assessment. He had changed his opinion about the treatment to be given rental income. In our opinion, in absence of some cogent material AO cannot initiate proceedings u/s. 147 of the Act. We also find that if the order of the FAA was to be implemented there would not be any escapement of income for any of the years. In both the years the depreciation and interest would be more than the rental income, if the transaction with regard to leased assets was to be treated financial transaction.
With regard to the argument that the AO had not formed any opinion, as he had not discussed anything in the assessment order, we would like to mention that in the matter of Prima Paper and Engineering Industry [2015 (2) TMI 803 - BOMBAY HIGH COURT] as well settled that the power to reopen an assessment is not a power of review and mere change of opinion would not justify reopening of an assessment. This would apply even when assessment sought to be reopened is within four years from the end of the assessment year.
Revenue does not dispute the fact that the issue with regard to which the reopening is sought to be done was the subject matter of discussion and deliberation before the AO during the original proceedings leading to the order - Also it is an undisputed position that the Assessing Officer did have occasion to apply his mind to the deduction claimed by the respondent-Assessee before allowing the same. The objection of the revenue that there was no opinion formed during the original assessment proceeding as the order did not deal with the same is unsustainable. The mere fact that the assessment order does not discuss the issue of deduction would not lead to the conclusion that the Assessing officer had made no opinion with regard to the issue.
Thus we are of the opinion that the re-opening was not based on valid reasons and there was no escapement of income for both the years. Assessee appeal allowed.
-
2016 (2) TMI 1371 - ITAT RAIPUR
Addition of low gross profit - survey conducted - as per revenue surrendered amount was nullified by claiming loss within the accounting period after the survey - correctness of gross profit disclosed by the assessee in the post survey accounting period - HELD THAT:- Even after the survey operation conducted u/s. 133A on 8.8.2007, no specific defect was referred by the AO pertaining to books of account of the assessee. There was no such allegation that there was suppression of sales or inflated purchases were accounted for in the books of account. Although there was an allegation of suppression of stock and excess cash were found but that was not made the basis of the impugned addition by the AO.
AO had proceeded to compare the trading results of pre survey and post survey period but contention before us is that the AO should have examined the profit of the entire financial year. That profit should have been compared with the profit disclosed and accepted in the immediately preceding year i.e. A.Y. 2007-08. This fact has also not been challenged by the Revenue side that addition in question was made without rejection of books of account.
On this issue, there are several decisions, wherein, it was consistently opined that there should be some defects to be pointed out by the revenue department so as to disturb the percentage of profit disclosed. In the absence of such discrepancy, the action of the AO remained un-substantiated. One more reason assigned by the ld CIT(A) before granting relief was that there was no uniform decrease in trading results of all the commodities. Rather in some of the commodities, the post survey profit rate was higher than the rate of profit already assessed in the past years. Therefore, we hereby confirm the findings of the ld CIT(A) and reject this ground of appeal taken by the revenue.
Disallowance of remuneration and interest paid to partners - As per the AO, the income surrendered was assessable u/s. 69C i.e. “income from other sources”, therefore, deduction claimed u/s.40(b) was not an admissible expenditure - CIT(A) deleted the addition - HELD THAT:- As we came to know that in a number of decisions, a consistent view has been taken that if the amount is surrendered pertaining to stock or business receipts, during the course of survey, then such surrender was nothing but income generated from the business activities of the assessee.
Few case laws cited are S.K. Srigiri & Bros [2007 (11) TMI 72 - KARNATAKA HIGH COURT], Jamnadas Muljibhai [2005 (1) TMI 366 - ITAT RAJKOT] and Deepa Agro Agencies [2005 (8) TMI 288 - ITAT BANGALORE-B] - thus we find no reason to interfere with the finding of ld CIT(A) and the same is hereby confirmed. This ground is accordingly rejected.
-
2016 (2) TMI 1370 - DELHI HIGH COURT
Seeking grant of interim bail - Interpretation of statute - whether the provisions and conditions of Section 37 of the NDPS Act would apply only to cases of "bail" or would also apply when the accused seeks "interim" bail? - HELD THAT:- In the light of Section 37 of the NDPS Act, right or discretion to grant regular bail is exactingly restricted, for the specified offences under the NDPS Act have serious repercussions on the society and are pernicious. The balance, therefore, mandates that regular bail should not be granted unless the negative stipulations of Section 37 of the NDPS Act are satisfied and mere satisfaction of conditions of Section 437 of the Code are not sufficient - Interpretation must elucidate the meaning which should be given to the statutory provisions, keeping in view the language used in the provision and if necessary adopt purposive interpretation when the language is capable of different interpretations. Legal interpretation is required in consonance with the statute and also the principles of bail jurisprudence.
The expression "interim" bail is not defined in the Code. It is an innovation by legal neologism which has gained acceptance and recognition. The terms, "interim" bail /"interim" suspension of sentence, have been used and accepted as part of legal vocabulary and are well known expressions. The said terms are used in contradistinction and to distinguish release on regular bail during pendency of trial or appeal till final adjudication - "Interim" bail entailing temporary release can be granted under compelling circumstances and grounds, even when regular bail would not be justified. Intolerable grief and suffering in the given facts, may justify temporary release, even when regular bail is not warranted. Such situations are not difficult to recount, though making a catalogue would be an unnecessary exercise.
The trial or the appellate Courts after conviction are entitled to grant "interim" bail to the accused/ convict when exceptional and extra-ordinary circumstances would justify this indulgence. The power is to be sparingly used, when intolerable grief and suffering in the given facts may justify temporary release - reference disposed off.
-
2016 (2) TMI 1369 - SC ORDER
Maintainability of appeal - monetary involved in the appeal - HELD THAT:- Since the tax effect is insignificant, we are not inclined to entertain this appeal - The appeal is dismissed.
-
2016 (2) TMI 1368 - KARNATAKA HIGH COURT
Legality/sustainability of the FIR registered against the petitioner - Bribery - mandate under Section 154(1) of Cr.P.C. - HELD THAT:- Divergent views are taken regarding recording of the voice of the accused prior to registration of the case. The Apex Court in the matter of Dr. Rajkumar Agarwal [2012 (8) TMI 1220 - SUPREME COURT], though noticed that the voice of the accused while demanding the bribe was recorded did not touch upon the legality or otherwise of such voice recording. In Criminal Petition No. 3750/2013 D.D. 11.2.2016 in the matter of LAKSHMIKANTHA S.G. VERSUS THE STATE AND ORS. [2016 (2) TMI 1366 - KARNATAKA HIGH COURT]], the transcription of the voice recording of the accused prior to registration of the case since was incorporated in the trap mahazar, was held as vitiating the further investigation. But here is a case where somebody on behalf of the complainant goes to the office of the Investigating Officer and is provided with a spy video camera on 15.11.2012. For the first time, the complainant meets the petitioner on the very same day and the said meeting is recorded in the camera. On 16.11.2012, FIR is registered by translating the prior events in chronological order. In the entrustment mahazar carried out subsequent to registration of the case on the very same day, the spy camera is seized after transferring its audio and video contents to a Laptop. The contents are incorporated in the entrustment mahazar. The investigation is proceeded by successfully trapping the second accused along with tainted currency notes.
It is not just on the material gathered from the spy camera the prosecution case rests, but also on the information brought in the written complaint by the complainant. When the information disclosed a cognizable offence, the S.H.O. had no other go except to register the FIR as per mandate of Section 154(1) of Cr.P.C.
The oral allegation and the supporting materials placed by the complainant have culminated in registration of the complaint. Thereafter, the Investigating Officer has investigated the matter and formed opinion to file his final report and the Court is also said to have taken cognizance of the offence - there are no illegality in registration of the case. Though a contention was taken by the petitioner that the Lokayuktha Police have no jurisdiction to register the case under the Prevention of Corruption Act, at the time of argument, such contention is not pressed. The irregularities pointed out during investigation cannot be counted upon in view of the fact that petitioner is restricting his claim only on illegality of registration of the FIR.
Now the matter since is before the Trial Court, the petitioner has to work out his remedy for discharge before the Trial Court only, if so advised. When an alternative remedy is provided under the Code of Criminal Procedure, this Court usually refrains from exercising jurisdiction under Section 482 of Cr.P.C.
Petition dismissed.
-
2016 (2) TMI 1367 - DELHI HIGH COURT
Treatment of amounts deposited as Tax Deducted at Source (TDS) - HELD THAT:- The Income Tax authorities shall consider and appropriately grant the relief which the applicant may be eligible and entitled to claim, having regard to the provisions of Section 89 for spread-over of the income tax liability (calculated on lump sum basis while deducting TDS).
If an application is made in that regard within three weeks from today, the respondent bank shall extend full cooperation and furnish all necessary calculations in this regard. The Income Tax authorities shall grant the relief to the extent permissible in accordance with law.
-
2016 (2) TMI 1366 - KARNATAKA HIGH COURT
Preliminary Investigation - Whether conversation of the accused recorded in support of the allegation for the offence under the Prevention of Corruption Act, prior to registration of FIR amounts to preliminary enquiry or investigation?
HELD THAT:- The registration of FIR is sine-quo-non for proceeding with the investigation of a case, otherwise investigation becomes illegal and is in violation of mandatory provision of Section 154 as held by Division Bench ruling of this Court in Sri Girishchandra and Another vs. State of Karnataka [2013 (2) TMI 928 - KARNATAKA HIGH COURT].
Coming to the case on hand, on the showing of the FIR itself, the Contractor approaches the IO on 26.03.2013 with the allegation that the accused is demanding bribe to get an indent for Transformer. Though the information divulged by the contractor discloses a cognizable offence without registering the case on the said information as mandated by Section 154 of Cr.P.C., IO hands over the voice recorder to him. It is only on 28.03.2013, when the contractor comes back with the recorded conversation of bribe demand, he receives a written complaint and registers the case and thereafter proceeds with entrustment mahazar and Trap.
By necessary implication in this case, the investigation commenced prior to registration of the case. Had if the IO immediately after receiving the information on 26.03.2013 had followed the procedure under Section 154(1) of Cr.P.C. thereby register the FIR and used his strategies for recording the conversation, by using the electric device, then the accused had no case to seek indulgence of this Court at the crime stage - The case of the petitioner shall succeed on two counts that (1) IO omitted to comply with the provisions of Section 154(1) of Cr.P.C., immediately after receiving information from the contractor on 26.03.2013, (2) The material collected before registration of the case now made to blend with the trap mahazar, subsequent to registration of the FIR vitiates entire investigation. The illegality noticed being abuse of process of law calls for interference in exercise of jurisdiction under Section 482 of Cr.P.C.
Petition allowed.
-
2016 (2) TMI 1365 - DELHI HIGH COURT
Inordinate delay of 1110 days in re-filing the appeal - HELD THAT:- The standard excuse that the department is putting forth in all such applications for condonation of delay in re-filing the appeal is the change of Standing Counsel for the Department and the failure by the earlier counsel to inform the Department about the appeal lying in defect.
This explanation does not impress the Court. It is not possible to accept that no one in the Department followed up on the filing of appeals and allowed a period of almost three years to elapse before the appeal could be re-filed. Department has a cell in the High Court which is under the supervision of a Deputy CIT. He ought to be keeping track of the filing of appeals and should be able to know if any appeal entrusted to the panel counsel for filing has not been listed even once before the Court for a long time.
The application for condonation of the delay of 1110 days in re-filing the appeal is dismissed.
-
2016 (2) TMI 1364 - ITAT BANGALORE
Depreciation on net working equipments used for audio/video conference and video streaming - @15% OR 60% - HELD THAT:- As decided in assessee own case [2014 (12) TMI 890 - ITAT BANGALORE] AO, instead of classifying the entire equipment as plant and machinery and not computer, is required to examine each item in detail as regards its functional dependency on the computer and its independent existence. The items which are functionally dependent on computers are definitely part of computer and the items with independent existence may not be computers but wherever it is found that the device is not used independent of the computer system and the purpose of audio visual conferencing and video streaming, the same shall be treated as computers and wherever it is used independently for any other purpose it shall be treated as plant and machinery. The AO, shall, thus allow depreciation at the rate of 60% on the equipment which could be classified as computer and at the rate of 15% on the equipment which could be classified as plant and machinery - Ground no.1 & 2 of the assessee are treated as allowed for statistical purposes.
Set off of brought forward depreciation of loss - claim denied despite being made in the return of income - HELD THAT:- We find that the claim of brought forward loss was not considered by the AO. The AO is directed to verify such claim and to give a set off of brought forward loss as allowed under law. Ground no.3 is allowed for statistical purposes.
TP Adjustment - treatment given by the lower authorities to the international transactions pertaining to payments made by it for administrative support services received by it from its associated enterprises - Lower authorities have considered the value of the benefit if any received by the assessee from its AE as nil due to failure of the assessee to produce evidence in this regard - Similar failures were there in the earlier years also - HELD THAT:- As per the learned DR, assessee ought to have brought all the evidence in support of its claim that it had received benefits from its AE, due to the services rendered before the DRP, in view of the Tribunal’s order for assessment year 2008-09. However, it is also possible that the order dated 19-09-2014 would have been received by the assessee only much later. There is a distinct probability that the assessee after receipt of the order of the Tribunal for assessment year 2008-09 [2014 (12) TMI 890 - ITAT BANGALORE] did not have sufficient time to gather and produce such details before the learned DRP for substantiating its case due to short interval. Due to this reason, we are of the opinion, that the benefit of doubt can be given to the assessee for the impugned assessment year also. We therefore, give similar directions as given in the earlier years.
-
2016 (2) TMI 1363 - RAJASTHAN HIGH COURT
Classification of goods - rate of tax - Multi Functional Device - taxable @ 4% under Schedule IV of the VAT Act or @ 12.5%/14% in the Residuary Entry of Schedule V of the said Act? - device carry out the function of scanning, photocopier, fax machine and as computer printer, under the provisions of the Rajasthan Value Added Tax Act, 2003 - HELD THAT:- The Multi Function Device comprising of computer printer, fax machine, photocopier and scanner-all-in-one, with the fast technology development, is an office equipment, which combines the aforesaid three or four devices and functions in one unit, and is largely used while attached with computer, though it may be used in some respects, as stand alone equipment, or even with or without being attached to the computer, like fax machine, as a part of it. The scanner, which produces digital image of the documents canned can be used only with the aid of computers, if the scanned image has to be transmitted to any other destination, though such transmission can be made possible through mobile phone also, as contended by the learned counsels for the Revenue. With the technology fast developing, it is now possible to do so and use Multi Functional Device with remote sensors in the computer system or Wi-fi. Therefore, actual and physical connection with the computer may not be even necessary - The dissection or separation of the various parts of this machine to decide the taxability of rate thereof, is not called for, but if admittedly, this device can be used as computer printer also, there appears to be no justification to tax it in the Residuary Entry, ignoring the specific entry relating to computer printers and its peripherals. It is well settled legal position that the Residuary Entry can be resorted to only if the commodity in question cannot be brought under the specific entries, and this proposition, is not disputed by either side before this Court.
That as a matter of fact, the entry is wider, which includes not only computer printers, but computer peripherals also. This Court finds no justification in the contention raised by the learned counsels for the Revenue, that the word ‘peripherals’ has to be construed narrowly to limit and include only accessories like, mouse, webcam or keyboard, as computer peripherals, to be taxed @ 4% under the said entry, and not to include therein the Multi Functional Devices.
In para 13 of the judgment in the case of Xerox India Limited v. Commissioner Of Customs, Mumbai, Mumbai [2010 (11) TMI 20 - SUPREME COURT], the Hon'ble Supreme Court held that about 85% of the total parts and components alongwith manufacturing cost is allocated to printing and it is to be used principally in Automatic Data Processing Machine (ADPM) and it is also connectible to the Central Processing Unit (CPU), and therefore, it is classifiable in entry 84.71.60 and not in the Residuary Entry 84.79.89.
Similarly, in the case of Canon India (P) Ltd. v. State of Tamil Nadu [2015 (2) TMI 751 - MADRAS HIGH COURT], the Division Bench of the Madras High Court, in a case arising under the Tamil Nadu General Sales Tax Act, held that image runners (multifunction network printers) would fall under entry 18(i) of Part B of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959 and would be taxable at 4%. The contention of the Revenue that image runner sold by the dealer could act as copier machine and other functions, like printing, scanning and faxing were added features to this machine, and therefore, it was taxable at 12%, was rejected by the Division Bench of the Madras High Court.
Therefore, upon a detailed analysis and with reference to various technical literature and material, the cases laws in favour of the Assessees, this Court is satisfied that the commodity in question, namely, Multi Functional Device could not be taxed by the Assessing Authority under the Residuary Entry for the period from 01.04.2006 to 09.03.2010, and the said commodity would fall within the ambit and scope of entry relating to computer printers and computer peripherals, taxable @ 4% in Schedule IV of the VAT Act.
The levy of tax in the Residuary Entry @ 12.5%/14% therefore, cannot be held, and to that extent, the order impugned of the learned Tax Board and the authorities below deserve to be quashed and set aside. They are accordingly set aside. As far as the question of imposition of interest and penalty is concerned, this Court is also satisfied that the levy of interest would fall, since the levy of additional tax itself is quashed by this Court, and the question of imposition of penalty, therefore, would not simply arise.
The revision petitions filed by the Assessees are allowed and the revision petitions of the Revenue are dismissed.
-
2016 (2) TMI 1362 - SUPREME COURT
Applicability of ESI Act - whether casual workers are covered under definition of employee as defined in Section 2(9) of the Employees State Insurance Act, 1948 (ESI Act) and pertaining to period for which Turf Club is liable to pay from 1978-79 or from 1987? - HELD THAT:- Reliance upon Regulations 26 to 31 of Regulations of 1950 is also of no avail as the Regulations make it clear that for the wage period, contribution has to be made by the employer as provided in Regulation 31 otherwise he is liable to make payment as provided in Regulation 31A and amount carry interest, which is recoverable as arrears of land revenue. It is also settled that interest cannot be waived. Regulation 36 also makes it clear that when an employee is employed by an employer for a part of the wage period, the contribution in respect of such wage period shall fall due on the last date of the employment in that wage period. The intendment of regulation is clear to cover work rendered in part of wage period.
This Court in Regional Director, Employees’ State Insurance Corporation, Madras v. South India Flour Mills (P) Ltd. [1986 (4) TMI 368 - SUPREME COURT] has overruled the decision of the Madras High Court in Employees’ State Insurance Corporation v. Gnanambikai Mills Ltd. [1973 (2) TMI 142 - MADRAS HIGH COURT] in which the High Court laid down that though casual employee may come within the definition of the term “employee” under section 2(9) of the Act, yet they may not be entitled to sickness benefits in case their employment is less than the benefit period or contribution period and that it does not appear from the Act that casual employee should be brought within its purview.
Coming to the submission that the ESI Corporation should be held bound by the consent terms, the submission is factually incorrect, misconceived, legally untenable and otherwise also devoid of the substance - the demand in the instant case is based upon the notification dated 18.9.1978 which left no room to entertain any doubt that the establishments of the aforesaid department in question were also covered under the ESI Act. Thus, no benefit can be derived by the consent terms which related to the earlier period when notification dated 18.9.1978 had not been issued. Notification has statutory force and agreement cannot supersede it. It is also clear that several departments of race club were covered under the notification issued in 1968. Thus, the submission raised on the basis of consent terms is hereby rejected.
The Turf Club is liable to make the contribution as per notification dated 18.9.1978 along with interest at such rate as provided in the Act and the Rules till the date of actual payment. Let the amount be contributed within a period of three months from today. Consequently, the appeals preferred by ESI Corporation are allowed.
........
|
