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Showing 41 to 60 of 915 Records
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2010 (7) TMI 1192 - KARNATAKA HIGH COURT
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... ... ..... debt as a bad debt or irrecoverable in the books of account i.e., conclusive proof of the said debt being a bad debt. The question of the Department going into the legality or correctness of the declaration was impermissible even though after such declaration the Assessee claimed deduction. Subsequently, the Assessee is not prevented from recovering the said amount. In this case, the amount so recovered is offered to tax and tax has been paid and therefore, seen from any angle, the interest of the revenue is in no way affected. It is in that context, the Tribunal keeping in mind the statutory provisions and the said legal position has rightly set aside the order passed by the Assessing Officer as well as the first appellate authority and upheld the claim of deduction. 10. In that view of the matter, the substantial questions of law framed are answered against the revenue and in favour of the Assessee. We do not see any merit in this appeal and accordingly, dismiss the appeal.
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2010 (7) TMI 1191 - BOMBAY HIGH COURT
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... ... ..... d reveal several facts which may not be within the knowledge of the investigating agency without such interrogation, 20. For the aforesaid reasons - (a) the Writ Petition filed by the petitioners is hereby dismissed. Rule discharged. (b) Criminal Application No.425/2010 filed by the intervener is allowed and the bail granted by the Magistrate is also hereby set aside. (c) The petitioners/accused shall remain present before the Judicial Magistrate, First Class, Vashi, Navi Mumbai, on 2.8.2010 and on that day, request for police custody made by the investigating officer shall be considered. The magistrate shall pass appropriate order after hearing both parties. (d) It is made clear that in case police custody is granted, after expiry of the police custody remand, the accused/petitioners shall be at liberty to move fresh application for bail and that will be disposed of in accordance with law after hearing both parties. Rule made absolute in the Criminal Application No.425/2010.
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2010 (7) TMI 1190 - ITAT DELHI
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... ... ..... power to impose tax on the said income. 6.3 Considering the above, we find that the genuineness/correctness of the assessee’s claim has not been doubted by the revenue and the only grievance is that the same has not been filed by way of original return or revised return. The Assessing Officer has not allowed the claim only on this ground and that the Auditors Certificate was not signed by the same auditor. A genuine claim of the assessee has to be allowed and the another argument for denial by the Assessing Officer that From 10-B has not been signed by the same auditor, is devoid of merits. Hence, on the basis of the aforesaid discussion and precedents, we do not find any merit in this grievance. Accordingly, we do not find any infirmity in the order of the Ld. Commissioner of Income Tax (Appeals) and hence we affirm the same. 7. In the result, the appeal filed by the revenue is dismissed. Order pronounced in the open court on 15/07/2010 upon conclusion of the hearing.
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2010 (7) TMI 1189 - SUPREME COURT
Determination of tariff applicable to the Non-Conventional Energy generation projects of Andhra Pradesh - Non-Conventional Energy Development Corporation of Andhra Pradesh Ltd. and Transmission Corporation of Andhra Pradesh Ltd. ('NEDCAP' and 'APTRANSCO' respectively), the Regulatory Commission - fixed the energy purchase rates - restricted sale, procurement and distribution of electricity by the Developers to any other party except APTRANSCO - Power Purchase Agreement ('PPA') - Jurisdiction Regulatory Commission - Feeling aggrieved from the order of the Tribunal the Transmission Corporation of Andhra Pradesh Ltd. as well as Eastern Power Distribution Company of Andhra Pradesh Ltd. have come up in appeal before this Court u/s 125 of the Electricity Act, 2003. the main controversy, in the present case relating to the jurisdiction and fixation of tariff by the Regulatory Commission.
HELD THAT:- the restriction with regard to third party sales was not only creation of a directive issued or approval granted by the Regulatory Commission, but was actually in furtherance to the contract entered into between the parties. Rights and liabilities arising from a binding contract cannot be escaped on the basis of some presumptions or inferences in relation to the facts leading to the execution of the contract between the parties. The jurisdiction of the Regulatory Commission, in the facts of the case, arises not only from the statutory provisions under the different Acts but also in terms of the contract executed between the parties which has binding force. Lastly, but with great emphasis, it was argued on behalf of the respondents that enforcement of the purchase price at the rate determined by the Regulatory Commission along with complete prohibition on the right of the Non-conventional Energy Generator/Developers to sell generated power to the third parties would compel them to shut down their projects. The rates are so unfair that it would result in extinguishment of the power generating units from the State of Andhra Pradesh on the one hand, while on the other, it is bound to prejudicially affect the larger public interest. According to the respondents they have invested large sums of money in developing these generating units and it will be unfair to compel their closure, particularly, when for all these years they have supplied electricity generated by them solely to APTRANSCO or its predecessors. All these projects, admittedly, were established in furtherance to the scheme and the guidelines provided by the Central Government which, in turn, were adopted with some modification by the State Government. The State Electricity Board implemented the said scheme and initially had permitted sale of generated electricity to third parties, however, subsequently and after formation of the Regulatory Commission which, in turn, took over the functions of the State Electricity Board, the incentives were modified and certain restrictions were placed. The reasons for these restrictions have been stated in the affidavit filed on behalf of the appellants which, as already noticed by us, is not a matter to be examined by this Court in exercise of its extra-ordinary jurisdiction. These matters, essentially, must be examined by expert bodies particularly, when such bodies are constituted under the provisions of a special statute.
The two corporations proposed thereunder were to be constituted to perform various functions and to ensure efficiency and social object of ensuring a fair deal to the customer. These objects and reasons clearly postulated the need for introduction of private sector into the field of generation and distribution of energy in the State. Efficiency in performance and economic utilization of resources to ensure satisfactory supply to the public at large is the paramount concern of the State as well as the Regulatory Commission. The policy decisions of these constituents are to be in conformity with the object of the Act. Thus, it is necessary that the Regulatory Commission, in view of this object, take practical decisions which would help in ensuring existence of these units rather than their extinguishment as alleged.
In view of our detailed discussion, we dispose of these appeals with the order.
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2010 (7) TMI 1188 - SUPREME COURT
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... ... ..... dv., Mr. Rahul Kaushik,Adv., Mr. B.V. Balaram Das,Adv. For the Respondent None ORDER Heard learned counsel for the petitioner. Delay condoned. The special leave petition is dismissed.
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2010 (7) TMI 1187 - ITAT BANGALORE
Exemption u/s 80G - Renewal of recognition u/s 80G denied on the ground that the assessee had violated the conditions as laid down in s.80G(5)(ii) and (iii) - assessee trust is doing charitable work without any discrimination on the basis of caste, creed or religion - HELD THAT:- The assessee trust’s hospital had treated 8,51,127 patients of non-Christian community out of 9,00,406 total patients received treatments which works out to 94.5%. Likewise, for the F.Y.2009-10, the total number of patients received various treatments from its hospital were 9,07,641, out of which, 8,50,146 patients were not belonging to the Christian community. This very fact belies the finding of the Ld. DIT(E) that the assessee-trust had served only its community and was being run for the benefit of Catholics.
When the assessee-trust was established in sixties the very object must have been for the benefit of Catholics, however, in practice the other community patients who have out-numbered the Christian community indeed received treatments from its hospital cannot be looked in isolation. Even on a glimpse of statistics provided, we find that out of the total number of 685 students admitted in its Medical College, 195 students were from Hindu community, 24 from Muslim and the remaining were from various sects of Christian community. Likewise, the number of staffs employed in its various institutions such as Research Institute, Medical College, Hospital etc., we find that a fair number of staffs were from other communities too.
This precisely contradicts the finding given by the Ld. DIT (E) in his impugned order that 80% of the total number of students from Christian community and the position of non-teaching staff were around 90% from its community and so on so forth.
Assessee-trust has been serving the humanity in its noble profession – rendering timely treatment to the needy without discriminating the caste, creed, community etc.- one should approach its cause with a wider perception rather than trying to read between the lines.
Provisions of s.80G(5)(iii) cannot be applied to the instant case since the assessee trust’s beneficiaries being the society at large and NOT to be beneficiary of Catholics alone as alleged by the Ld. DIT(E). - Decided in favour of assessee.
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2010 (7) TMI 1186 - ORISSA HIGH COURT
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... ... ..... g or mining for minerals". If the contention urged on behalf of the Petitioners were correct, not only would the enactment of Rule 59 but also its amendment be rendered an exercise in futility on the part of the Central Government. Xxx xxx xxx. It need be reiterated that so far as the State of Orissa is concerned, reliance was placed on 1962 notifications (Notification No. 5988-MG dated 5.6.1962, Notification No. 11791/MG dated 6.12.1962). It would, therefore be abundantly clear that such notifications were prior to 1963 amendment of Rule 59 of M.C. Rules and therefore were clearly without necessary legislative competence. In view of the conclusion of the Gujrat High Court which has been affirmed by the Apex Court in Amritlal Nathubhai Shah v. Union Government of India (1976) 4 SCC 108, I have no hesitation to hold that the State Government had no legislative competence to reserve the land as on 1962 prior to 9th July, 1963 when the amendment to Rule 59 came into force.
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2010 (7) TMI 1185 - ITAT BANGALORE
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... ... ..... ly, there is no room for computation of short-term capital gains in the present case. 29. Regarding the protective computation of long term capital gains, we find that it was only a face saving computation made by the assessing authority while substantively treating the asset as stock-intrade. While treating the surplus as long term capital gains, the assessee has computed the long term capital gains in a rightful manner and Assessing Officer has not given any convincing reason to deviate from computation made by the assessee firm. 30. Therefore, we find that both the protective computations made by the assessing authority are not sustainable in law. 31. In the facts and circumstances of the case, we direct the Assessing Officer to accept the computation of long term capital gains returned by the assessee and complete the assessment accordingly. 32. In result, the appeal filed by the assessee is allowed. Order pronounced on Wednesday the 28th day of July, 2010, at Bangalore.
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2010 (7) TMI 1184 - SC ORDER
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... ... ..... L. Narsimhan, Mr.M.P.Devanath,Adv. ORDER Delay condoned. The Civil Appeal is dismissed.
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2010 (7) TMI 1183 - DELHI HIGH COURT
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... ... ..... Account represented an unascertained liability so as to enhance the book profit in terms of provisions of Clause (c) of Explanation to Section 115JA(1) of the Income Tax Act, 1961? 2. Whether the Income-Tax Appellate Tribunal was justified in law in not directing, that the amount of ₹ 29,60,828/- being the liability towards leave encashment due to the employees could not be deducted from the income computed under the provisions of the Income Tax Act, 1961, inspite of judgment of Apex Court in the case of Bharat Earthmovers v. CIT, reported in 245-ITR-428-SC? 3. Whether in the circumstances of the case was not the Income Tax Appellate Tribunal right in not deducting an addition made of ₹ 2,83,70,822/- despite the fact that no such deduction was either claimed in the computation of income or was debited in the Profit and Loss Account? Mrs. Prem Lata Bansal, learned counsel for the revenue accepts notice. In view of the aforesaid, no further notice need to be issued.
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2010 (7) TMI 1182 - SUPREME COURT
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... ... ..... ndent substantially balances the equities between the parties and the very argument raised on behalf of the appellants that there has been increase in the price of the land in question loses its significance. Now, no prejudice will be caused to the appellants in any manner whatsoever. 19. For the reasons afore recorded, we see no legal or other infirmity in the judgment under appeal. While dismissing the present appeal, we direct that the respondent will abide by her offer and would pay a total sale consideration of ₹ 1,50,000/- and upon payment of ₹ 1,50,000/- - ₹ 10,000/- ₹ 1,40,000/- and complying with the conditions stated in the judgment dated 28th November, 2000 of the First Appellate Court, the sale deed shall be registered in favour of the respondent in terms of the decree passed by the First Appellate Court subject to the above modifications. 20. However, in the facts and circumstances of the case, we leave the parties to bear their own costs.
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2010 (7) TMI 1181 - SUPREME COURT
Suit for specific performance of an oral agreement for "commercial collaboration for business benefits" - validity of a novel and innovative direction by the High Court, purportedly issued to discourage frivolous and speculative litigation - appellant claims to be a builder and real estate dealer - Whether a court has the power to pass an order directing a plaintiff in a suit for specific performance (or any other suit), to file an undertaking that in the event of not succeeding in the suit, he shall pay ₹ 25 lakhs (or any other sum) by way of damages to the defendant - whether the collaboration agreement, as alleged by the appellant, is specifically enforceable, having regard to the prohibition contained in Section 14(1)(b) and (d) of the Specific Relief Act, 1963.
HELD THAT:- The appellant claims to be a builder and real estate dealer. If the appellant entered into a collaboration agreement orally with numerous details as set out in the plaint (extracted in Para (2) above) and could secure a receipt in writing for ₹ 51,000/-, nothing prevented him from reducing the said terms of the alleged collaboration agreement in the form of an agreement or Memorandum of Understanding and have it signed by the owners of the property. No reason is forthcoming as to why that was not done.
The property stands in the name of second respondent (Defendant No. 2), but she did not sign the receipt. There is nothing to show that the second respondent participated in the alleged negotiations or authorized her husband-the first respondent to enter into any collaboration agreement in respect of the suit property. The receipt is not signed by the first respondent as Attorney Holder or as the authorized representative of the owner of the property. From the plaint averments it is evident that appellant did not even know who the owner was, at the time of the alleged negotiations and erroneously assumed that first respondent was the owner. The execution of a receipt for ₹ 51,000/- by the first respondent even if proved, may at best make out a tentative token payment pending negotiations and finalization of the terms of an agreement for development of the property.
The agreement is alleged to have been entered on 10.6.2004. But the plaintiff issued the first notice calling upon defendants to perform, only on 9.3.2007 and filed the suit on 30.6.2007. There was no correspondence or demand for performance, in writing, prior to 9.3.2007, even though the alleged agreement was a commercial transaction.
Every person has a right to approach a court of law if he has a grievance for which law provides a remedy. Certain safeguards are built into the Code to prevent and discourage frivolous, speculative and vexatious suits.
Code, nowhere authorizes or empowers the court to issue a direction to a plaintiff to file an undertaking to pay damages to the defendant in the event of being unsuccessful in the suit. The Code also does not contain any provision to assess the damages payable by a plaintiff to defendant, when the plaintiff's suit is still pending, without any application by defendant, and without a finding of any breach or wrongful act and without an inquiry into the quantum of damages. There is also no contract between the parties which requires the appellant to furnish such undertaking. None of the provisions of either TP Act or Specific Relief Act or any other substantive law enables the court to issue such an interim direction to a plaintiff to furnish an undertaking to pay damages. In the absence of an enabling provision in the contract or in the Code or in any substantive laws a court trying a civil suit, has no power or jurisdiction to direct the plaintiff, to file an affidavit undertaking to pay any specified sum to the defendant, by way of damages, if the plaintiff does not succeed in the suit. In short, law does not contemplate a plaintiff indemnifying a defendant for all or any losses sustained by the defendant on account of the litigation, by giving an undertaking at the time of filing a suit or before trial, to pay damages to the defendants in the event of not succeeding in the case.
As the provisions of the Code are not exhaustive, Section 151 is intended to apply where the Code does not cover any particular procedural aspect, and interests of justice require the exercise of power to cover a particular situation. Section 151 is not a provision of law conferring power to grant any kind of substantive relief. It is a procedural provision saving the inherent power of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court. It cannot be invoked with reference to a matter which is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code. It cannot be used either to create or recognize rights, or to create liabilities and obligations not contemplated by any law.
The direction to the plaintiff to furnish an undertaking to pay ₹ 25 lakhs to defendants in the event of losing the case, is an order in terrorem. It is made not because the plaintiff committed any default, nor because he tried to delay the proceedings, nor because he filed any frivolous applications, but because the court is unable to find the time to decide the case in view of the huge pendency.
We appreciate the anxiety shown by the High Court to discourage land-grabbers, speculators, false claimants and adventurers in real estate from pressurizing hapless and innocent property owners to part with their property against their will, by filing suits which are vexatious, false or frivolous. But we cannot approve the method adopted by the High Court which is wholly outside law. In a suit governed by the Code, no court can, merely because it considers it just and equitable, issue directions which are contrary to or not authorized by law.
The High Court can certainly innovate, to discipline those whom it considers to be adventurers in litigation, but it has to do so within the four corners of law.
It is well-settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit.
Having regard to the facts and circumstances, we are of the view that this is a fit case where the suit property should be exempted from the operation of Section 52 of the TP Act, subject to a condition relating to reasonable security, so that the defendants will have the liberty to deal with the property in any manner they may deem fit, inspite of the pendency of the suit. The appellant-plaintiff has alleged that he is a builder and real estate dealer. It is admitted by him that he has entered into the transaction as a commercial collaboration agreement for business benefits. The appellant has further stated in the plaint, that under the collaboration agreement, he is required to invest ₹ 20 lakhs in all, made up of ₹ 16,29,000/- for construction and ₹ 3,71,000/- as cash consideration and that in lieu of it he will be entitled to ground floor of the new building to be constructed by him at his own cost. Treating it as a business venture, a reasonable profit from such a venture can be taken as 15% of the investment proposed, which works out to ₹ 3 lakhs. Therefore it would be sufficient to direct the respondents to furnish security for a sum of ₹ 3 lakhs to the satisfaction of the court (learned Single Judge) as a condition for permitting the defendants to deal with the property during the pendency of the suit, under Section 52 of the TP Act.
The lack of appropriate provisions relating to costs has resulted in a steady increase in malicious, vexatious, false, frivolous and speculative suits, apart from rendering Section 89 of the Code ineffective. Any attempt to reduce the pendency or encourage alternative dispute resolution processes or to streamline the civil justice system will fail in the absence of appropriate provisions relating to costs. There is therefore an urgent need for the legislature and the Law Commission of India to re-visit the provisions relating to costs and compensatory costs contained in Section 35 and 35A of the Code.
In the result, we allow this appeal in part, set aside the order of the Division Bench and Learned Single Judge directing the plaintiff-appellant to file an affidavit undertaking to pay ₹ 25 lakhs to defendants-respondents in the event of failure in the suit. Instead, we permit the defendants-respondents u/s 52 of TP Act, to deal with or dispose of the suit property in the manner they deem fit, in spite of the pendency of the suit by the plaintiff, subject to their furnishing security to an extent of Rs. Three lakhs to the satisfaction of the learned Single Judge.
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2010 (7) TMI 1180 - ITAT HYDERABAD
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... ... ..... as capital gain is not an appropriation of profit meant for uncertain purpose. This is an amount under obligation to get adjusted in case the assessee wants to get back the vessel or allows the vendor to retain possession of the vessels. Therefore, in our opinion, it may not be correct to designate the same as reserve at all. Further more, the said amount is not debited to profit and loss account. Therefore, both the conditions required for the purpose of adding back the said amount to the book profit is not satisfied. In view of this judgment of the Apex Court in the case of National Hydroelectric Power Corpn. Ltd. (supra), in our opinion, even under Explanation 1(b ) to section 115JB the disputed amount of ₹ 15,35,10,501 cannot be added back to the book profit. In view of the above, we are unable to uphold the Order of the lower authorities. Accordingly, the same is set aside and the entire addition is deleted. 23. In the result, appeal of the assessee stands allowed.
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2010 (7) TMI 1179 - SECURITIES APPELLATE TRIBUNAL MUMBAI
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... ... ..... e allegations in the show cause notice were taken to be correct, no case is made out against the appellants and they cannot be held guilty of executing fraudulent trades since negotiated deals executed on the screen of the exchanges in accordance with their price and order matching mechanism are legal and permissible transactions sanctified by Board’s own circular dated September 14, 1999. Though we agree with him regarding the validity of such negotiated deals, we are not discussing this issue any further since we have already found the Board’s case otherwise unsustainable on merits. In the result, the appeals are allowed and the impugned orders set aside. The Board is directed to refund the amounts impounded from the appellants together with interest accrued thereon till the date those amounts were remitted to the Consolidated Fund of India. We make it clear that the appellants shall not be entitled to any interest thereafter. Parties shall bear their own costs.
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2010 (7) TMI 1178 - DELHI HIGH COURT
Petition to direct enquiry or investigation - wrongful and malafide conduct of the officials of the CAW, NCW, FRRO and DCW - illegal detention - Facts of the case, It is alleged that Petitioner No.1 was "made to stand in solitary confinement in a toilet, causing untold harassment, humiliation and infringement of his fundamental rights guaranteed under the Constitution of India. His passport was stamped with the remarks ‘Off loaded-deported due to criminal complaint’ albeit there was no criminal case pending against him nor any FIR was registered. He was released only after intervention by his solicitor.
HELD THAT:- This Court is, of the view that action of the NCW in writing to the DCP, FRRO for the issuance of an LOC against the Petitioner No. 1 was without the authority of law. The consequent action of the FRRO in issuing such LOC which resulted in the Petitioner No.1 being detained at the IGI airport on 8th April 2008 was also, therefore, illegal.
Regarding consequential relief - The power to suspend, even temporarily, a passport of a citizen, the power to issue an LOC, the power to ‘off-load’ a passenger and prevent him or her from travelling are all extraordinary powers, vested in the criminal law enforcement agencies by the statutory law. These are powers that are required under the law, to be exercised with caution and only by the authorities who are empowered by law to do so and then again only for valid reasons.
As regards the illegal detention suffered by the Petitioner No. 1 on 8th April 2008 at the instance of both the NCW as well as the FRRO, this Court directs that the FRRO as well as the NCW will each pay the Petitioner No.1 a sum of ₹ 20,000/- by way of compensation within a period of four weeks from today. The Respondent No. 1 will, if not already done, within two weeks, make the necessary endorsement on the passport of Petitioner No. 1 expunging the earlier endorsement "off-loaded (criminal complaint)". In the circumstances, this Court does not consider it necessary to examine the other prayer of the Petitioners that a further detailed investigation should be undertaken to fix responsibility on those who may have been responsible for the issuance of the LOC.
Accordingly, the writ petition is disposed of.
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2010 (7) TMI 1177 - MADRAS HIGH COURT
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... ... ..... ceeds together with interest, than nothing at all. 12. This court expresses a sincere hope that atleast hereinafter the criminal courts would follow the decision of the Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat, in true letter and spirit. 13. These Criminal Original Petitions are allowed. The concerned Lower Court shall, upon production of the certified copy of this order, fix a date for production of the vehicle before it. Upon production, the lower court shall cause photographs of the vehicle to be taken and record Panchnama thereof. The petitioner shall then be at liberty to effect sale of the vehicle. The photographs and Panchnama prepared shall be read as evidence in lieu of marking of the vehicles. 14. The Registry is directed to circulate a copy of this order to all Sessions / Metropolitan/ Judicial Magistrate Courts. This Court places on record its deep appreciation for the kind assistance of the learned senior counsel Mr. Ashok Kumar, Amicus Curiae.
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2010 (7) TMI 1176 - SC ORDER
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... ... ..... .S. Sudheer, Adv. Mr. Rishi Maheshwari, Adv. Mr. Ujjwal K. Jha, Adv. Mr. Braj K. Mishra, Adv. Mr. Vikram, Adv. Mr. Abhishek Yadav, Adv. Mr. Aparna Jha, Adv. Mr. Praveen Swarup ,Adv ORDER Mr. Rupesh Kumar, learned counsel for the appellants started his submissions at 3.45 p.m. and was on his legs when the Court rose for the day. The matter remains part-heard.
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2010 (7) TMI 1175 - ITAT INDORE
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... ... ..... nefit others rather than one’s self. The action which follows from charitable thinking is always directed as benefit to others. It is this direction of thought and efforts and not the result what is done in term of financially measurable gain which determines that it is charitable quoted from Sole Trustee Lok Shikshan Trust vs. CIT(101 ITR 234) (SC) . Since the main predominant object of the assessee is profit making, therefore, we find no infirmity in the impugned order in denying registration u/s 12A/12AA of the Act to the assessee. Thus, on this issue, we affirm the stand taken by the ld. first appellate authority. Before part with, we record our appreciations to Shri P.M. Choudhari along with Shri Anil Kamal Garg, ld. Counsels for the assessee and Mr. Girish Dave, ld. CCIT, DR for properly assisting the Bench by their valuable, tempting and useful arguments. Finally, the appeal of the assessee is partly allowed. Order pronounced in the open Court on 6th July, 2010.
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2010 (7) TMI 1174 - ITAT DELHI
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... ... ..... e are therefore inclined to agree with the contention of learned AR that non-utilization of the amount within the period of three years is to be seen for declining the claim of deduction only after expiry of three years and not in the relevant assessment year in which assessee has duly deposited the amount in the capital gains tax account before last date of filing the return. In the interest of justice and fair play, we restore this ground also back to the file of the AO for verifying all the relevant details with regard to investment in new residential plot as well as deposit in the bank account under capital gains tax scheme and its utilization thereafter if any within the statutory period as stipulated in the relevant provisions of Section 54 and for deciding the same as per law. We direct accordingly. 6. In the result, the appeal of the assessee is allowed for statistical purposes, in terms indicated hereinabove. Decision pronounced in the open Court on 23rd July, 2010.
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2010 (7) TMI 1173 - ITAT MUMBAI
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... ... ..... 2003-04. We find the Tribunal vide ITA No.394/Mum/08 order dated 29-01-2010 has dismissed the ground raised by the Revenue on this issue. It has been held in the said decision that there is no infirmity in the order of the CIT(A) who deleted the addition by following the orders of the ITAT in the earlier year. We find the Tribunal vide ITA No.2412/Mum/08 order dated 22-03-2010 for the asst. year 2004-05, following the order of the Tribunal in the assessee’s own case for the asst. year 2003-04, has dismissed the ground raised by the Revenue on this issue. Respectfully following the consistent view of the Co-ordinate Benches of the Tribunal in assessee’s own case and in absence of any contrary material brought to our notice against the orders of the Tribunal, this ground by the Revenue is dismissed. 14. In the result, the appeal filed by the assessee is partly allowed and the appeal filed by the Revenue is dismissed. Order pronounced on the 29th day of July, 2010.
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