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2011 (5) TMI 1134 - ITAT DELHI
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... ... ..... through the material available on record. In the case before us it is a fact that the notices issued in case of one of the share applicants had been received back. One of the applicants had stated that she had not made any deposit in the company whereas no reply was received from two persons. It is also a fact that the assessing officer on receipt of reply or receipt of notice received un-served, no further opportunity was provided by him to the assessee. Therefore, in our considered opinion, the ld. CIT (Appeals) should have admitted the additional evidence and adjudicated upon. We, therefore, admit the additional evidence and direct the ld. CIT (Appeals) to decide the issue afresh, after considering the additional evidence filed by the assessee. Ld CIT(A) will decide the issue on merits after affording the assessee a reasonable opportunity of being heard. 7. In the result, the appeal filed by the assessee is allowed. The order pronounced in the open court on 27th May, 2011.
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2011 (5) TMI 1133 - CALCUTTA HIGH COURT
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... ... ..... nts. In the absence of reasons based on which it can be said that the accounts are complex or not, mere assumption that they are complex would not satisfy the test, nor would the appointment of Special Auditor merely for the purpose of examination of related supporting vouchers, bring the matter within ambit of Section 142(2A). In the instant case, it is apparent that what weighed with the Commissioner was certain acts and omissions. The Commissioner did not approve the mode of allocation of expenditure. The reasons do not indicate what exactly was so complex in the accounts of the petitioner company, that required special audit. The impugned order cannot be sustained and the same is set aside and quashed. Mr. Sinha appearing on behalf of the Revenue prays for stay of operation of this order. Such prayer is granted for a period of four weeks from date. Urgent certified copy of this order be supplied to the parties, if applied for, upon compliance of all requisite formalities.
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2011 (5) TMI 1132 - SC ORDER
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... ... ..... vision Bench seeking permission to withdraw the appeal preferred by the petitioners. Accordingly, the special leave petitions are dismissed as not pressed. We direct that if the petitioners take steps for withdrawal of the appeal before the next date fixed by the Division Bench, the contempt proceedings initiated against the petitioners shall remain stayed till the said application is disposed of.
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2011 (5) TMI 1131 - CALCUTTA HIGH COURT
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... ... ..... ts origin, and under the law of the country of its origin which law governs the award by choice and consent. We, thus, find that the facts of the said case is totally opposite the case before us and the case rather supports the view we have adopted in this case as regards the prima facie lack of jurisdiction of the Indian Court in view of the agreement between the parties as to applicability of the law of the State of Illinois. The aforesaid decision, therefore, does not support the Appellant in any way. 27. We, thus, although do not approve all the reasons assigned by the learned Single Judge in refusing the prayer of injunction, find that the ultimate conclusion was correct and as such, we approve the ultimate conclusion of the learned Single Judge that the application for injunction should be dismissed for the reasons discussed by us in this order. 28. The appeal is, thus, dismissed. 29. In the facts and circumstances, there will be, however, no order as to costs. I agree.
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2011 (5) TMI 1130 - ITAT AHMEDABAD
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... ... ..... we find that while confirming the part addition made by the Assessing Officer on the allegation of low G.P., there is no concrete finding that there is any definite concealment of income and part addition was confirmed by the Tribunal on estimate basis only and it was held by the Tribunal in quantum appeal that as against 6% G.P. rate applied by the Assessing Officer, G.P. of 2.5% should be applied to calculate the profit in grey cloth. There is no concrete finding regarding concealment of income by the Assessing Officer or by CIT (A) in quantum proceedings or in penalty proceedings. Under these facts of the present case, various judgments cited by the Ld. A. R. of the assessee as noted above are squarely applicable and by respectfully following these judgments, we hold that the Revenue could not establish the factum of concealment of income and hence penalty u/s.271(1) (c ) is not justified. We therefore, delete the penalty. Order pronounced in Open Court on 27 - 05 - 2011.
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2011 (5) TMI 1129 - ITAT CHENNAI
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... ... ..... on that the issue under consideration is a debatable issue or an issue in respect of which more than one view is possible. We find that Hon’ble Supreme Court in the case of Learned Commissioner of Income Tax Vs. Max India 295 ITR 346 has reiterated the view that passing of an order u/s.263 is not envisaged in the Act in respect of debatable issue where more than one view is possible. Thus the opinion of the Learned Commissioner of Income Tax cannot be upheld. 15. In view of the above in our considered view the Learned Commissioner of Income Tax was not justified in treating the order of assessment dated 07.12.2007 passed by the Learned Assessing Officer as erroneous as well as prejudicial to the interest of Revenue in view of the reasons stated in the impugned order. We therefore set aside the order passed u/s.263 by the Learned Commissioner of Income Tax and allow the appeal of the assessee. Order signed, dated and pronounced in the Court on this 13th day of May, 2011.
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2011 (5) TMI 1128 - SC ORDER
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... ... ..... Gupta, Adv. and Mr. B.V. Balaram Das, Adv. For the Respondent None. ORDER Heard learned counsel for the petitioner. Delay condoned. The special leave petitions are dismissed.
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2011 (5) TMI 1127 - ITAT MUMBAI
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... ... ..... and other Supreme Court’s judgment, held as follows - “6. ……… we cannot altogether lose sight of the rule that every court or tribunal has an inherent power to dismiss a proceeding for non-prosecution when the petition / appellant before it does not wish to prosecute the proceedings. In such a situation, unless the statute clearly requires the court or tribunal to hear the appeal / proceeding and decide it on merits, it can dismiss the appeal / proceeding for.” The Delhi Bench of this Tribunal in M/s. Multiplan India Pvt. Ltd. (1991) 38 ITD 320 (Del.), has held that in a similar circumstances, the appeal may be dismissed as unadmitted. 4. Applying the aforesaid propositions of the Hon'ble Jurisdictional High Court as well as the Tribunal, we treat these appeal as unadmitted and hold the same as liable to be dismissed. 5. In the result, all the appeals of the assessee are dismissed. Order pronounced in the open Court on 4th May 2011.
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2011 (5) TMI 1126 - ITAT PUNE
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... ... ..... the Assessing Officer everything should be open before him for adjudicating the issue at hand. 4. After hearing both the parties and perusing the material on record, we find that the assessee has filed the requisite audit report at appellate stage which was not entertained by the CIT(A) inspite of the fact that the reasons for non-filing of the requisite audit report at the relevant point of time were given at appellate stage. Same should have been judiciously appreciated which has not been done. So in the interest of justice, we restore this issue to the file of the Assessing Officer with a direction to decide the same as per fact and law after providing adequate opportunity of hearing to the assessee. Since we are restoring the matter to the file of the Assessing Officer on a preliminary issue, we are refrained to comment on the merits of the issue at hand. 5. In the result, the appeal is allowed for statistical purposes. Order pronounced in the open court on 31st May 2011.
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2011 (5) TMI 1125 - DELHI HIGH COURT
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... ... ..... . As regards Ashok Rathi, no charge sheet has been filed against him as there was no sufficient evidence available against him to show that he took money for hiring the assassins. As noted above, the statement of Aman Sharma is that just after Honey's death he heard three-four persons standing and wondering whether there was hand of Binder in the murder of Honey or not, in which the Petitioner stated that if it was the hand of Binder, they would see him. 8. In view of the fact that there is no cogent material except the disclosure statement of the co-accused against the Petitioner deem it fit to grant of anticipatory bail to the Petitioner. Consequently, the Petitioner be released on his furnishing a personal bond in the sum of ₹ 1 lakh with two sureties of the like amount subject to the satisfaction of the Arresting Officer. However, the Petitioner will join the investigation as and when directed by the Investigating Officer. 9. Petition is disposed of Order dasti.
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2011 (5) TMI 1124 - COMPETITION COMMISSION OF INDIA
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... ... ..... o the gravity of the contravention and must be determined after having due regard to the mitigating and aggravating circumstances of the case. 81 The Commission notes that denial of market access is one of the severe forms of abuse of dominant position. Although penalty up to ten (10) percent of the relevant turnover of AICF can be imposed, the Commission finds it appropriate to impose penalty at the rate of two (2) percent of the average relevant turnover for the financial years 2014-15, 2015-16 and 2016-17. Consequently, the Commission imposes a penalty of INR 6,92,350/- only (Rupees six lakhs ninety two thousand three hundred and fifty only) upon AICF for infringing the provisions of Section 4 of the Act. 82 The Commission directs AICF to deposit the aforesaid penalty amount within 60 days of the receipt of this order and file a report to the Commission on compliance of the aforesaid directions. 83 The Secretary is directed to forward copies of this order to all concerned.
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2011 (5) TMI 1123 - SUPREME COURT
Guilty of criminal contempt - Offence punishable u/s 12 r/w Sections 15 and 2(c) of the Contempt of Courts Act, 1971 ("the Act") - order of conviction and sentence passed - before the Magistrate, unfortunate incident had occurred, tendered apology and regret for their action, prayed for leniency and setting aside the order of the High Court sentencing the contemnors to jail -
Controversial behaviour of the Contemnors - Before considering the acceptability of the affidavits filed by the appellants, in order to visualize seriousness of the matter, it is useful to refer the exchange of words and behaviour of the appellants (in English version) while the Magistrate remanded the accused Soran to police custody.
''When all the officers were sitting in the chamber of the Magistrate, they over-heard Mr. Prashar shouting in the Court in loud voice saying, "You are indulging in gangism. You are passing orders of your choice. The contempt can not harm me. I will see to it as to how you remain in service."
The role and status of lawyers at the beginning of Sovereign and Democratic India is accounted as extremely vital in deciding that the Nation's administration was to be governed by the Rule of Law. They were considered intellectuals amongst the elites of the country and social activists amongst the downtrodden.
The role of lawyers in the framing of the Constitution needs no special mention. In a profession with such a vivid history it is regretful, to say the least, to witness instances of the nature of the present kind. Lawyers are the officers of the Court in the administration of justice.
HELD THAT:- Considering the plea made by Mr. Ram Jethmalani, learned senior counsel and President of the Supreme Court Bar Association, in tendering unconditional apology, recorded even at the initial stage before the High Court and before the Magistrate, Faridabad before whom the unwanted incident had occurred and the present affidavits filed before us once again expressing unconditional apology and regret with an undertaking that they would maintain good behaviour in future and in view of the language used in `proviso' and `explanation' appended to Section 12(1), we accept the affidavits filed by all the Appellants.
Considering the fact that the newspaper has merely published what had happened in the Court, we are of the view that it would be just and fair to apply the same relief to him also. We reiterate that acceptance of an apology from a contemnor should only be a matter of exception and not that of a rule.
A Court, be that of a Magistrate or the Supreme Court is sacrosanct. The integrity and sanctity of an institution which has bestowed upon itself the responsibility of dispensing justice is ought to be maintained. All the functionaries, be it advocates, judges and the rest of the staff ought to act in accordance with morals and ethics.
Advocates Role and Ethical Standards - ''An advocate shall not stand as a surety, or certify the soundness of a surety for his client required for the purpose of any legal proceedings."
Advocates have a large responsibility towards the society. A client's relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and justice system.
An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable.
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2011 (5) TMI 1122 - ITAT CHENNAI
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... ... ..... onvertible foreign exchange, and therefore, directed the Assessing Officer to consider the sale of granite monuments made to another 100% Export Oriented Unit at par with exports made abroad while allowing exemption u/s 10B of the Act after verifying details of convertible foreign exchange received in India by the assessee. 7. We find that both the parties before us have agreed that the issue is covered in favour of the assessee by the deicison of the Tribunal in assessee’s own case for Assessment Year 2003-04. As the ld. D.R. could not point out any distinguishing features or change in the facts, we do not find any infirmity in the order of the Commissioner of Income-tax Appeals allowing claim for deduction u/s 10B of the Act to the assessee. Therefore, we confirm the order of the Commissioner of Income-tax Appeals and dismiss the ground of appeal of the Revenue. 8. In the result, appeal filed by the Revenue stands dismissed. Order pronounced in the court on 24.5.2011.
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2011 (5) TMI 1121 - SUPREME COURT
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... ... ..... aid so explicitly. 41. The Regulation 4 (iii) of the Regulations is a deeming provision to the effect firstly, if an employee fails to exercise his option within a period of 6 months from the date of issue of these Regulations and; secondly, even on exercise of option, if an employee fails to refund the amount of advance taken from employers contribution of the C.P.F. within 6 months from the date of issue of these Regulations, then it shall be deemed that employee has opted to continue for the existing C.P.F. benefit. Therefore, the failure on the part of the Respondents to opt for the Pension Scheme and refund the advance taken from the employer's contribution of C.P.F. will disentitle them from claiming any benefit under the Pension Scheme. Therefore, we cannot sustain the judgment and order passed by the High Court. 4 2 . The appeals are accordingly allowed and the impugned judgment and orders passed by the High Court are set aside. There will be no order as to costs.
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2011 (5) TMI 1120 - ITAT HYDERABAD
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... ... ..... t be equated with the normal disallowance made in the course of assessment proceedings out of the expenses claimed by the assessee. There may or may not be good reasons for the disallowance of interest claimed by the assessee, but it could not be inferred in the facts of the case that the assessee has filed inaccurate particulars of its income by claiming certain deduction of interest in its computation of income. It is a case of honest difference of opinion between the assessee and the Revenue relating to allowance of certain expenses claimed by the assessee. The explanation of the assessee could not be said to be without any basis or foundation. In these facts of the case, we hold that it is not a fit case for levy of penalty under S.271(1)(c) of the Act, which is accordingly cancelled and the grounds of appeal of the assessee for both the assessment years are allowed. 6. In the result, both the appeals of the assessee are allowed. Order pronounced in the court on 20-5-2011
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2011 (5) TMI 1119 - GUJARAT HIGH COURT
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... ... ..... he payment, it will be also a ground for cancellation of the bail as it would also be a breach or violation of the undertaking given to this court. The undertaking shall be filed within a week in this proceeding. (h) co-operate with the I.O. and shall make herself available for interrogation if and when required during the day from 11 am and 5 pm and shall also give the address of her residence as well as the contact number where she could be contacted and in case of any default, in spite of giving such address and the contact no., it will be a ground for cancellation of the bail. It will be open for the I.O. to apply for remand if found necessary. (i) when she reports to the I.O., the I.O shall verify with regard to the amount deposited as well as the undertaking filed in this court. 18. It would be open to the I.O. to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits. Rule is made absolute. D.S. permitted.
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2011 (5) TMI 1118 - ITAT MUMBAI
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... ... ..... adopt a reasonable basis for effecting the apportionment. While making that determination, the AO should provide a reasonable opportunity to the assessee of producing its accounts and relevant or germane material having a bearing on the facts and circumstances of the case.” 12. In view of the ratio laid down by the Hon’ble jurisdictional High court in the case of Godrej & Boyce Mfg. Co. Ltd. (supra), we remit the matter back to the file of the AO with a direction decide the issue afresh in the light of the said judgment of the Hon’ble Jurisdictional High court after providing reasonable opportunity of being heard to the assessee. Accordingly this ground of appeal raised in all the years under consideration are treated as allowed for statistical purposes. 13. In the result, appeals for AY 2004-05 and 2005-06 are allowed and the appeal for AY 2006-07 is treated as allowed for statistical purposes. Pronounced in the open court on this day of 27th May, 2011.
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2011 (5) TMI 1117 - ITAT DELHI
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... ... ..... Commissioner of Income Tax (Appeals). In our considered opinion, if the matter is not enquired earlier, the same cannot act as an estoppel for the revenue authorities that the same cannot be enquired in the concerned assessment year. However, as noted by the Ld. Commissioner of Income Tax (Appeals), proper details in this regard, has not been submitted. The ld. counsel of the assessee also did not elaborate on the system adopted in this regard with cogent material, except asserting that this system was followed for a long period. Hence, in the interest of justice, we remit this issue to the files of the Assessing Officer to consider the same afresh. Needless to add that the assessee should be given adequate opportunity of being heard. However, the assessee is directed to provide necessary details in this regard before the authorities below. 12. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 20/5/2011.
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2011 (5) TMI 1116 - KERALA HIGH COURT
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... ... ..... eference that we have given to the view of V. Ramkumar (J) expressed in Anwar's case does not mean that we are approving the oft noticed practice of accused in cheque cases filing successive petition for enlargement, petitions for clarifications and such other innovative petitions as are indicated by the learned Division Bench which decided Sudheer Kumar's case (supra). We reiterate that the powers under S. 482 can be invoked by filing extension/enlargement of application like the one filed by the revision petitioners in these cases only on genuine and pressing reasons and the power should be invoked only when the High Court is convinced that the inability of the concerned accused to make the payment was due to reasons beyond his control. Relief should be granted only after ensuring that the same will result in rendition of justice to both sides and will bring forth complete and final quietus on the issues between the parties. All the references are answered as above.
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2011 (5) TMI 1115 - SUPREME COURT
Powers of High Court in case of petition against International arbitration agreement - HELD THAT:- In terms of Clause 34.12 of the PSC entered into by 5 parties, the seat of arbitration was Kuala Lumpur, Malaysia. However, due to outbreak of epidemic SARS, the arbitral tribunal decided to hold its sittings first at Amsterdam and then at London and the parties did not object to this. In the proceedings held at London, the arbitral tribunal recorded the consent of the parties for shifting the juridical seat of arbitration to London. Therefore, mere change in the physical venue of the hearing from Kuala Lumpur to Amsterdam and London did not amount to change in the juridical seat of arbitration. This is expressly indicated in Section 53 of the English Arbitration Act, 1996.
In our opinion, the learned Single Judge of Gujarat High Court had rightly followed the conclusion recorded by the three-Judge Bench in Bhatia International v. Bulk Trading SA [2002 (3) TMI 824 - SUPREME COURT] and held that the District Court, Vadodara did not have the jurisdiction to entertain the petition filed u/s 9 of the Act because the parties had agreed that the law governing the arbitration will be English law and the provisions of Part-I of the Indian Arbitration Act would apply to international commercial arbitrations held outside India, unless the parties by agreement express or implied, exclude all or any of its provisions.
In the present case also, the parties had agreed that notwithstanding Article 33.1, the arbitration agreement contained in Article 34 shall be governed by laws of England. This necessarily implies that the parties had agreed to exclude the provisions of Part I of the Act. As a corollary to the above conclusion, we hold that the Delhi HC did not have the jurisdiction to entertain the petition filed by the Respondents under Section 9 of the Act and the mere fact that the Appellant had earlier filed similar petitions was not sufficient to clothe that High Court with the jurisdiction to entertain the petition filed by the Respondents.
In the result, the appeal is allowed. The impugned order is set aside and the petition filed by the Respondents under Section 9 of the Act is dismissed.
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