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2014 (4) TMI 1305 - PUNJAB AND HARYANA HIGH COURT
Grant of regular bail - alleged recovery of 4 kgs. of heroin - Section 167 Cr.P.C. read with Section 36(A) of the Narcotic Drugs and Psychotropic Substances Act - HELD THAT:- Under Section 167 of the Code of Criminal Procedure and under its various sub-sections, the maximum period beyond which a person cannot be detained while investigation is under way has been provided and the same varies between 60 to 90 days keeping in view the gravity of offence. If the investigation is not completed within such stipulated period, the accused is entitled to bail under Section 167(2) of the Code of Criminal Procedure if he makes an application for such purpose. However, under the Act, the maximum period of 90 days fixed under Section 167(2) of the Code of Criminal Procedure has been increased to 180 days for several categories of offences under the Act.
The application preferred by the prosecution seeking extension of time has been produced by the learned State counsel before this Court during the course of hearing and a perusal thereof would reveal that the only basis and reason cited therein was that the report of Chemical Examiner had not been received.
There has been a noncompliance of the provisions contained in Section 36-A of the Act. The provision mandates a report of the Public Prosecutor indicating the progress of the investigation as also the specific and compelling reasons for seeking the detention of the accused beyond a period of 180 days. The reasons recorded by the trial Court in the order dated 12.03.2014 do not even advert to the conditions as provided for under Section 36-A(4) of the Act.
The Hon'ble Supreme Court in HITENDRA VISHNU THAKUR VERSUS STATE OF MAHARASHTRA [1994 (7) TMI 343 - SUPREME COURT] while dealing with the proviso inserted as clause (bb) in sub-section (4) of Section 20 of TADA which is parimateria with the proviso to sub- Section (4) of Section 36-A of the Act had categorically held that even though the proviso does not specifically mandate the issuance of a notice to the accused while seeking extension yet the issuance of a notice has to be read into the provision which would be, both, in the interest of the accused, as also the prosecution as well as for doing complete justice between the parties. Such requirement was held to be in consonance with the principles of natural justice.
This Court would have no hesitation in observing that the application submitted seeking extension of time for completion of investigation as also the order passed thereon by the Special Judge, Tarn Taran granting extension of three months have been done in a routine and mechanical fashion.
The petitioner in the present case having filed the bail application on the expiry of the stipulated period as per Section 167(2) of the Code of Criminal Procedure had acquired an indefeasible right for grant of bail notwithstanding the grant of extension of time by the trial Court for completion of investigation and presentation of final report.
Bail granted subject to conditions imposed - bail application allowed.
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2014 (4) TMI 1304 - GAUHATI HIGH COURT
Writ petition filled seeking to challenge the notice issued by ACIT - Admittedly, on the same cause of action writ petitioner had earlier filed one writ petition and the same was dismissed by the Division Bench as withdrawn on the request of writ petitioner - HELD THAT:- The applicability of the principle of Rule 1 of Order XXIII CPC to writ petitions under Article 226/227 is thus not on the ground of res judicata but on ground of public policy. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 once again.
In the instant case, the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. Even on merits there was no ground to reverse the decision of the High Court.
Present writ petition is not entertainable because it was not disputed by the learned counsel for the petitioner that the cause of action which was the subject matter of the earlier writ petition and the one involved in the present writ petition is identical an d secondly, no liberty was taken to file second petition. That being so, this writ petition deserves to be dismissed in limini in the light of the law laid down by the Hon’ble Supreme Court in the case of Sarguja [1986 (11) TMI 377 - SUPREME COURT]
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2014 (4) TMI 1303 - ITAT CUTTACK
Jurisdiction of the Assessing Officer - Change of jurisdiction relating to the areas within the jurisdiction of the different Directors General or Chief Commissioners or Commissioners - HELD THAT:- As assessee has objected the jurisdiction of the AO within the time limit as has been specified u/s 124(3)(a), therefore, the application moved by the assessee for challenging the jurisdiction was a valid one. As noted Section 124(4) lays down that where an assessee calls in question the jurisdiction of the AO, then the AO shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-section (2) before the assessment is made to CCIT or DG & CIT.
Need to refer to Director General, Chief Commissioner or Commissioner concerned - Section 124(2), it is apparent that incase the assessee objects about the jurisdiction and the AO is not satisfied, AO is bound to refer the question of the jurisdiction to the Director General or the Chief commissioner or the Commissioner, incase it relates to the same Director General or Chief Commissioner or the Commissioner, but where the question of jurisdiction relating to the areas within the jurisdiction of the different Directors General or Chief Commissioners or Commissioners, the AO is bound to refer it to the Director General, Chief Commissioner or Commissioner concerned and if those people are not in agreement, then it should be decided by the Board or by such Director General or Chief Commissioner or Commissioner as the Board may specify this by notification in the Official Gazette.
In the impugned case, we noted that the AO himself has decided the issue of the jurisdiction and sent the notice to the assessee u/s. 142(1), which remained uncomplied and accordingly the best judgment assessment was passed u/s. 144.
AO was not correct in law in deciding the issue of the jurisdiction himself. We, therefore, set aside the order passed by the Assessing Officer and restore the issue to the AO with the direction that the Assessing Officer may proceed with the assessment after getting the issue relating to the jurisdiction determined in accordance with the provisions of Section 124(2) of the I.T. Act.
Appeal filed by the assessee is allowed statistically, whereas the appeal of the Revenue stands dismissed.
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2014 (4) TMI 1302 - MADRAS HIGH COURT
Condonation of delay in filing appeal - failure to produce medical certificate to prove the fact that she was bed ridden - HELD THAT:- A careful perusal of the law laid down by the Supreme Court in various decisions, clearly revealed that to remove injustice the delay has to be condoned and should not rejected on technical grounds.
In this case since the revision petitioner has given sufficient reason for condoning the delay, but the trial Court dismissed the application only on the main ground that the revision petitioner has not produced medical certificate to show that she was ill and her doctor advised her to take bed rest till 27.7.2006. The above said finding of the trial Court is perverse and illegal and hence, the order passed by the trial Court is to be set aside and the revision petition is to be allowed.
In the result, the civil revision petition is allowed and the order passed by the trial Court is set aside and the delay of 440 days in filing the appeal is condoned and the above said application is allowed accordingly.
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2014 (4) TMI 1301 - ITAT KOLKATA
Disallowance u/s 14A r.w.r 8D - applicability of Rule 8D - HELD THAT:- Hon’ble High Court in in Birla Corporation Limited Versus Commissioner of Income Tax-II, Kolkata [2014 (2) TMI 1032 - CALCUTTA HIGH COURT] has held “the applicability of Rule 8D is prospective”. At the outset, assessee fairly stated that the Tribunal is taking a consistent view as regards the disallowance u/s. 14A of the Act that 1% is to be disallowed of the exempted income.
Tribunal Kolkata Bench has also confirmed the same in many cases, one of the same is in the case of Select Products Pvt. Ltd. [2014 (3) TMI 1218 - ITAT KOLKATA] Hence, we direct the AO to recompute the disallowance by restricting at 1% of the exempted income. We direct the AO accordingly.
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2014 (4) TMI 1300 - BOMBAY HIGH COURT
Assessment of trust - necessity to remand the case back to the Director by ITAT - ITAT was not satisfied with the order passed by the Director of Income Tax (Exemptions) u/s 12AA(3) and took upon the matter to itself allowing exemption to assessee trust - revenue contented if the Tribunal was not satisfied with the order passed by the Director of Income Tax (Exemptions) u/s 12AA(3) then as an appellate Court or an authority, all that needed to be done was to quash that order and send the matter back to the Director of Income Tax (Exemptions) and for scrutiny as to whether the objects are identical and whether all requirements of the statute are complied with rather takin upon the matter to itself - HELD THAT:- In the present case, what the Tribunal noted and on fact is that the appellant before is Sri Shanmukhananda Fine Arts and Sangeetha Sabha Charitable Trust. The assessee society is a registered society and covered by both, the Societies Registration Act, 1960 and Bombay Public Trust Act, 1950. It is termed as a Charitable Institution. It changed the objects and that was permitted by the Charity Commissioner.
Thereafter, the Trust named Bharatiya Music and Arts Society was amalgamated with the assessee society on 27th January, 2005. The Director sought to question this and even the lapses allegedly committed by the assessee society in not communicating to the Income Tax Department the changes made in the objects of the Trust.
Finding that the other Trust which amalgamated with the assessee society was also established and founded for the same objects and purpose and that a case therefore was not made out for withdrawal of the registration, that the Income Tax Appellate Tribunal, after setting aside the order of the Director, granted full relief. In the given facts and circumstances, the Tribunal found that it was not necessary to remit or remand the case back to the Director.
That was essentially because the facts were never in dispute. It is in these circumstances and finding that the view taken by the Tribunal is a possible one, that the present appeal does not deserve to be admitted. No substantial question of law.
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2014 (4) TMI 1299 - CALCUTTA HIGH COURT
No consensus-id-idem on actual rent in 1995 in respect of the suit premises - matter referred to a Third Judge - HELD THAT:- Since the figure arrived at by the trial court in the range "between Rs. 14/- and Rs. 18/- per sq. ft" per month is with reference to the rent at the R.N Mukherjee Road property of Rs.20 per sq. ft per month, on the basis of the additional evidence, the suit premises on Kiran Shankar Ray Road which has its entrance on Old Post Office Street should have commanded roughly 20 per cent more on account of rent than the comparable R.N. Mukherjee Road property at the relevant time. The rent of the R.N. Mukherjee Road Property was Rs.20 per sq. ft per month. The rent in respect of the suit premises in 1995 is thus assessed to be 20 per cent in excess of the value of rent at the R.N. Mukherjee Road property of Rs. 20; or, Rs.24 per sq. ft per month.
The question posed in the reference is answered accordingly by holding that the rent in 1995 in respect of the suit premises would have been Rs.24 per sq. ft per month.
In accordance with the mandate of Clause 36 of the Letters Patent, the majority view of the Judges who have heard the relevant point in the appeal is recorded as Rs.24 per sq. ft per month being the rate of rent in the suit premises in the year 1995.
The reference is disposed of.
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2014 (4) TMI 1298 - BOMBAY HIGH COURT
Winding up under section 433(f) of the Companies Act, 1956 - petitioner contended that it is just and equitable to wind up the company, inter-alia, on the ground that the substratum of the company has almost completely been eroded - seeking grant of interim relief - HELD THAT:- The power of the company court to pass interim orders commences from the time the petition for winding-up is presented/lodged/filed. There are cases where it is necessary to pass urgent interim orders the moment the petition is filed. This would be so irrespective of whether the petition for winding up is on the ground that the company is unable to pay its dues or on the ground that it is just and equitable to do so.
The contention that power of the company court to pass interim relief is only when the company petition is finally heard is rejected. The power of the company court to grant interim reliefs commences upon the presentation of the petition itself.
Appeal disposed off.
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2014 (4) TMI 1297 - BOMBAY HIGH COURT
Dismissal of application filed under Order 7, Rule 11(d) of CPC on 3.3.2011 - seeking relief of declaration in respect of easement of necessity and easement by grant and also permanent injunction - HELD THAT:- It is well settled law that a rightly concluded order based upon wrong reasons cannot be upset or reversed only because the reasons are incorrect. Therefore, it will have to be seen whether the statements made by the respondent No. 1 in the plaint, without any doubt or dispute, show that the suit is barred by any law in force.
From the law laid down in the cases of Popat and Kotecha Property [2005 (8) TMI 691 - SUPREME COURT] and Devi Singh [1972 (7) TMI 117 - SUPREME COURT], it is clear that while deciding an application under Rule 11(d), Order 7 CPC, Court cannot go beyond the averments made in the plaint and cannot decide the disputed questions of facts or law at that stage. In the instant case, the dispute between the parties is about illegally blocking the suit road providing access to the suit property. Respondent No. 1 is claiming easement of necessity and easement by grant in respect of suit road and it is it's case that same is being denied to it - merely on the basis of statements made in the plaint, it cannot be said that section 52-A GID Act was applicable and its requirements ought to have been fulfilled before filing of the suit. The plaint, therefore, could not have been rejected under Rule 11(d), Order 7 of the CPC.
There are no illegality nor any perversity in the impugned order. It does not call for any interference. Point is answered accordingly. CRA, therefore, stands dismissed.
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2014 (4) TMI 1296 - CALCUTTA HIGH COURT
Seeking to explain the delay in registration of FIR on the basis of the complaint of the petitioners - HELD THAT:- There are occasion to come across cases where the police administration has shown laxity in the matter of registration of first information report and in investigating the same, thereby pushing the aggrieved complainant to knock the doors of the relevant magistrate. It is time for the Commissioner of Police, Kolkata Police (hereafter the CP) insofar as the police officials posted in police stations under his jurisdictional control as well as the Director General and Inspector General of Police (hereafter the DGP) for the police officials posted at police stations beyond the jurisdiction of Kolkata Police to introspect and to take stock of the performance of each of such officers who, despite being aware of the law relating to registration of first information report, simply refuse to register the same on the specious ground that an inquiry is necessary without, however, realizing the situation which would call for an inquiry.
It is high time for the police officers to be made aware of the decisions of the Supreme Court as well as this Court on the point of registration of first information report - the DGP and the CP shall take appropriate steps in this regard.
Since Mr. Amit Biswas has been transferred from the post of Officer-in-Charge, Entally Police Station on 17th January, 2014, the present incumbent on such post shall submit a status port regarding progress of investigation of of Entally P.S. Case No.22 dated 15th January, 2014 before this Court on 23rd April, 2014, when this writ petition shall be listed under the heading ‘To Be Mentioned’.
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2014 (4) TMI 1295 - CALCUTTA HIGH COURT
Disallowance u/s 14A - Non recording of satisfaction before making addition - correctness of the claim of the assessee in respect of the expenditure in relation to income which is exempt from the liability to pay tax under the Income Tax Act - HELD THAT:- As assessee submitted that the judgment in the case of Dhanuka & Sons [2011 (4) TMI 861 - CALCUTTA HIGH COURT] has no manner of application to the facts and circumstances of this case. In that case, the assessee was unable to produce any material before the authorities showing the source from which the shares were acquired. He contended that no such finding has been recorded by the Assessing Officer in this case. The AO as a matter of fact, did not record his dissatisfaction with the correctness of the claim made by the assessee - Therefore, the judgment cited by Mr. Bhowmick has not manner of application.
No substantial question of law. The appeal is, therefore, not admitted and is, consequently, dismissed.
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2014 (4) TMI 1294 - SUPREME COURT
Validity of sections made in respect of the post, namely, Medical Laboratory Technician (MLT) - all appointees not impleaded - procedure adopted for selection was vitiated as the candidates were selected only by interview without holding any written test though the past practice was to conduct an examination - HELD THAT:- In the case at hand neither any rule nor Regulation was challenged. In fact, we have been apprised that at the time of selection and appointment there was no rule or Regulation. A procedure used to be adopted by the administrative instructions. That apart, it was not a large body of appointees but only 182 appointees. Quite apart from that the persons who were impleaded, were not treated to be in the representative capacity. In this regard, it is profitable to refer to some authorities.
In KU. RASHMI MISHRA VERSUS MADHYA PRADESH PUBLIC SERVICE COMISSION & ORS. [2006 (10) TMI 485 - SUPREME COURT], after referring to Prabodh Verma [[1984 (7) TMI 397 - SUPREME COURT]] and Indu Shekhar Singh [2006 (4) TMI 565 - SUPREME COURT], the Court took note of the fact that when no steps had been taken in terms of Order 1 Rule 8 of the Code of Civil Procedure or the principles analogous thereto all the seventeen selected candidates were necessary parties in the writ petition. It was further observed that the number of selected candidates was not many and there was no difficulty for the Appellant to implead them as parties in the proceeding. Ultimately, the Court held that when all the selected candidates were not impleaded as parties to the writ petition, no relief could be granted to the Appellant therein.
In Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors. [2008 (11) TMI 718 - SUPREME COURT], this Court approved the view expressed by the tribunal which had opined that for absence of selected and appointed candidates and without affording an opportunity of hearing to them, the selection could not be set aside.
Thus, in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ Petitioners.
When the Respondents had appeared in the interview knowing fully well the process, they could not have resiled later on or taken a somersault saying that the procedure as adopted by the department was vitiated - HELD THAT:- It is apt to refer to the principle stated in Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. [1986 (3) TMI 329 - SUPREME COURT], in the said case a three-Judge Bench, taking note of the fact that the Petitioner in the writ petition had appeared for the examination without protest and filed the petition only after he realized that he would not succeed in the examination, held that the writ Petitioner should not have been granted any relief by the High Court.
In Union of India and Ors. v. S. Vinod Kumar and Ors. [2007 (9) TMI 700 - SUPREME COURT], the Court reiterated the principle that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
The twin contentions proponed by the learned Counsel for the Appellant deserve acceptation - Appeal allowed.
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2014 (4) TMI 1293 - CESTAT AHMEDABAD
Liability of Service Tax - erection, installation, and maintenance services - billing separately for the materials and for the services - HELD THAT:- From the voluminous record which is produced, it is found that appellant has, in fact, produced records. Basically, the issue needs to be verified from the factual matrix. Hence, instead of going into the merits of the case, it is deemed fit to remand the matter back to the adjudicating authority to reconsider the issue afresh by going into all the claims by the appellant as regards discharge of VAT on supply portion and discharge on Service Tax on the services portion.
The matter is remanded back to the adjudicating authority to reconsider the issue afresh after following the principles of natural justice - appeal allowed by way of remand.
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2014 (4) TMI 1292 - ITAT AHMEDABAD
Addition of “Annual Maintenance Contract” expense made by the AO without rejecting the books of accounts u/s.145(3) - adhoc disallowance of 15% of the total expenditure claimed without any basis and the same should be extracted to a reasonable disallowance - HELD THAT:- Having heard the submissions of both the sides, we are of the view that although the assessee has placed on record the income tax returns of those parties, barring few, the details of the payment, details of tax deducted at source, which was duly supported by their respective statements recorded by the AO but still the learned CIT(A) thought it proper to adopt a reasonable percentage of disallowance. As far as the documents are concerned, a voluminous compilation is placed before us pertained to ledger account; invoices and bank statements.
Additionally, it has also been argued before us that none of the parties were related to the assessee and there was no allegation of the Revenue that the payment was made to the connected parties. In support of this contention that in a situation when the payment has been made to unconnected parties and TDS was deducted then the disallowance of expenditure was not justified, a case law of ITAT ‘D’ Bench Ahmedabad pronounced in the case of BMS Projects Pvt. Ltd. [2013 (1) TMI 1044 - ITAT AHMEDABAD] has also been cited.
Considering all we have noted that one of the party was suffering from cancer out of the five parties who have not been produced, therefore, further relief can be granted to the assessee. However to cover up any leakage and also considering the fact that rest of the four parties could not be produced we hereby restrict the disallowance to a round figure of Rs.20 lacs which according to us is a fair and reasonable estimate. Ground of the Revenue stands dismissed.
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2014 (4) TMI 1291 - SUPREME COURT
Criminal conspiracy - Dishonest application for a car loan of Rs. 5 lakhs and opened a bank account bearing No. 1277 on 24.08.2002 without proper introduction - commission of offences Under Section 120B Indian Penal Code read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Sections 420/471 Indian Penal Code - HELD THAT:- The charges framed against the accused-Appellant, it may be repeated, are Under Section 120B Indian Penal Code read with Section 13(2) read with Section 13(1)(d) of the PC Act and Sections 420/471 of the Indian Penal Code. It is true that in NIKHIL MERCHANT VERSUS CENTRAL BUREAU OF INVESTIGATION AND ANR. [2008 (8) TMI 966 - SUPREME COURT] the charges framed against the accused were also Under Sections 120B read with Section 5(2) and 5(1)(d) of the PC Act, 1947 (Section 13(2) read with 13(1)(d) of the PC Act, 1988) and Sections 420, 467, 468, 471 of the Indian Penal Code.
In para 28 of the judgment in NIKHIL MERCHANT VERSUS CENTRAL BUREAU OF INVESTIGATION AND ANR. [2008 (8) TMI 966 - SUPREME COURT] on a consideration of the totality of the facts and circumstances in which the charges were brought against the accused this Court had come to the conclusion that The basic intention of the accused in this case appears to have been to misrepresent the financial status of the Company, M/s. Neemuch Emballage Ltd., Mumbai, in order to avail of the credit facilities to an extent to which the Company was not entitled. In other words, the main intention of the Company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the Company was not otherwise entitled.
The Court, thereafter, took into account the fact that the dispute between the parties had been settled/compromised and such compromise formed a part of the decree passed in the suit filed by the bank. After holding that the power Under Section 482 Code of Criminal Procedure to quash a criminal proceeding was not contingent on the provisions of Section 320 of the Code of Criminal Procedure, and taking into account the conclusion recorded in para 28 of the judgment, as noticed above, the Court ultimately concluded that in the facts of the case it would be justified to quash the criminal proceeding.
At the very outset a detailed narration of the charges against the accused-Appellant has been made. The Appellant has been charged with the offence of criminal conspiracy to commit the offence Under Section 13(1)(d). He is also substantively charged Under Section 420 (compoundable with the leave of the Court) and Section 471 (non-compoundable). A careful consideration of the facts of the case would indicate that unlike in Nikhil Merchant (supra) no conclusion can be reached that the substratum of the charges against the accused-Appellant in the present case is one of cheating - The offences are certainly more serious; they are not private in nature. The charge of conspiracy is to commit offences under the Prevention of Corruption Act. The accused has also been charged for commission of the substantive offence Under Section 471 Indian Penal Code.
If the High Court has taken the view that the exclusion spelt out in GIAN SINGH VERSUS STATE OF PUNJAB & ANOTHER [2012 (9) TMI 1112 - SUPREME COURT] applies to the present case and on that basis had come to the conclusion that the power Under Section 482 Code of Criminal Procedure should not be exercised to quash the criminal case against the accused, we cannot find any justification to interfere with the said decision.
The appeal filed by the accused is dismissed.
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2014 (4) TMI 1290 - GUJARAT HIGH COURT
Deemed dividend u/s 2(22)(e) - Addition based on peak amount of the debit balance - ITAT deleted the addition that after merging all accounts, the final position is zero in the balance sheet in the name of the assessee in the books of accounts of the company as on 31.03.2008 - HELD THAT:- Though the said Company did advance loan to the assessee in different accounts, it is also an established fact that in two separate accounts, the assessee was the creditor of the Company - At the end of the year, this exactly is the amount which is in net the assessee withdrew from the company, may be in different accounts.
The peak credit in different accounts never exceeded Rs.13.16 crore. Under the circumstances, the CIT (Appeals) as well as the Tribunal, both took an overall view of the accounts of the assessee and the said Company to hold that section 2(22)(e) of the Act would not apply. As is well known, section 2(22)(e) of the Act pertains to dividend, which would include several payments made by the Company.
In particular clause (e) of the said subsection (22) pertains to payment by a company to which a legal friction would arise and such payment shall be deemed to be dividend distributed by such company to the person. It is well known that a legal friction can arise only at the circumstance in which the legislature envisages giving rise to the same. In the present case, when the very fundamental condition of a payment made by the Company is on facts found not established, in our opinion, both the CIT (Appeals) and the Tribunal correctly refused to apply the said section. Decided against revenue.
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2014 (4) TMI 1289 - CESTAT KOLKATA
CENVAT Credit - duty paying invoices - input service distribution - credit denied on the ground that though input service invoices were issued in the name of their Head Office and services wholly were not received by their factory, and payments were made from the Head Office, and it was not registered as an Input Service Distributor - invoices issued by the Head Office, could be considered as valid documents for availing CENVAT Credit by the Applicant at its factory or not - HELD THAT:- The Applicant had availed the CENVAT Credit on the invoices issued by the Head Office during the relevant time, i.e. April, 2005 to December, 2006. During the relevant time, the Head Office was not registered as an 'Input Service Distributor', and hence, the invoices issued by the Head Office, prima facie, could not be valid/correct documents for availing the CENVAT Credit, being not mentioned at Rule 9 of CENVAT Credit Rules, 2004. This Tribunal has been consistently directing predeposit in those cases where head office of the assessee-company is not registered as an 'Input Service Distributor' under the relevant provisions, but issue invoices distributing the Credit.
There are also no merit in the contention of the Id. Consultant, at this stage, that to be an 'Input Service Distributor', there should be more than one unit.
The Applicant are directed to deposit 10% of the CENVAT Credit of Rs.36,45,963/- within a period of eight weeks from today - On deposit of the said amount, the balance dues adjudged would stand waived and its recovery stayed during pendency of the Appeal - Compliance to be reported on 07.03.2014.
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2014 (4) TMI 1288 - BOMBAY HIGH COURT
Deduction of amortized expenses - HELD THAT:- Appeal admitted on following substantial questions of law:
(i) Whether on the facts and in the circumstances of the case and in law the Hon'ble Tribunal was justified in holding that the amortized amount of the premium on investments cannot be added back to the balance of the profits as there is no specific prohibition against the allowance of such expenditure under Sections 30 to 43B of the Income Tax Act, 1961 even though such expenditure is to be added back in terms of Clause 5(a) of the First Schedule of the Income Tax Act, 1961?
(ii) Whether on the facts and in the circumstances of the case and in law the Hon'ble Tribunal was justified in holding that the amortized amount of the premium on investments, which is not admissible under Sections 30 to 43B of the Income Tax Act and is required to be added back as per the provisions of Clause 5(a) of the First Schedule of the Income Tax Act, cannot be allowed to be added back to the balance of profits as there is no specific prohibition against the allowance of such expenditure under sections 30 to 43B of the Income Tax Act, 1961?
(iii) Whether on the facts and in the circumstances of the case and in law the Hon'ble Tribunal was justified in holding that the preoperative expenses amounting to Rs.1,40,30,352/- can be amortized and claimed over a period of several years when there is no provision under the Income Tax Act to admit such an allowance?
(iv) Whether on the facts and in the circumstances of the case and in law the Hon'ble Tribunal was justified in holding that the preoperative amortized expenses can be claimed as a deduction in a previous year in which it has not been incurred?
(v) Whether on the facts and in the circumstances of the case and in law the Hon'ble Tribunal was justified in holding that profit of Rs.47,45,859/- on sale of investments is exempt in view of the CBDT Circular No.528 dated 16.12.1988 even though the said circular was for General Insurance Corporation of India and its subsidiaries which are wholly owned enterprises of the Union of India?
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2014 (4) TMI 1287 - ITAT MUMBAI
Disallowance u/s 14A r.w.r. 8D - assessee has submitted that neither the assessee had earned any exempt income nor any expenditure had been incurred for earning of the exempt income - HELD THAT:- As in the case of Godrej & Boyce Manufacturing Co. Ltd.[2010 (8) TMI 77 - BOMBAY HIGH COURT] has held that Rule 8D r.w.s. 14A(2) is not arbitrary or unreasonable but can be applied only if the assessee's method is not satisfactory. It has been further held that Rule 8D is not retrospective and applies from A.Y. 2008-09.
As further observed that u/s 14A resort can be made to Rule 8D of the Income Tax Rules for determining the amount of expenditure in relation to exempt income, if, the AO is not satisfied with the correctness of the claim made by the assessee in respect of such expenditure.
A perusal of the assessment order reveals that the AO without recording any dissatisfaction with regard to the claim of the assessee that no expenditure was incurred by the assessee for earning the exempt income, straightway applied Rule 8D against the mandate of the provisions of section 14A - CIT(A) also ignored the contentions raised by the assessee while confirming the disallowance.
We restore this issue back to the file of the AO with a direction that the AO will examine the contentions of the assessee made in this regard. AO will be at liberty to call for any record/evidences or statement etc. from the assessee as may be required by him for deciding the issue under consideration.
After going through the details provided by the assessee, if the AO will be satisfied with the contentions or working, if any, made by the assessee then he will assess the income accordingly - if the AO does not agree with the computation made by the assessee and in that event, he will have to record his dissatisfaction with reasoning for the same by way of a speaking order, then he will be at liberty to resort to the provisions of Rule 8D. Needless to say, the assessee will co-operate and promptly supply the necessary details etc. to the AO for deciding the issue under consideration. Appeal of the assessee is allowed for statistical purposes.
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2014 (4) TMI 1286 - ALLAHABAD HIGH COURT
Recovery of outstanding dues - petitioner filed a claim before the Micro and Small Enterprises Facilitation Council of the State of Uttar Pradesh at Kanpur claiming an award - submission of the petitioner is that once the petitioner had invoked the provisions of the 2006 Act, the Facilitation Council was conferred with the exclusive jurisdiction under Section 18 to enter upon the dispute and to initially conduct the conciliation proceedings.
HELD THAT:- Chapter V of the Act contains special provisions in regard to delayed payments to Micro and Small Enterprises. Section 15 provides that where any supplier supplies any goods or renders any services to any buyer, the buyer shall make payment on or before the date agreed upon between him and the supplier in writing or, where there is no agreement, before the appointed day. The proviso stipulates that, in any case, the period agreed upon between the supplier and the buyer shall not exceed forty-five days from the day of acceptance or the day of deemed acceptance. Section 16 provides for the payment of interest by the buyer at three times of the Bank rate notified by the Reserve Bank upon a failure of the buyer to make payment, as required under Section 15 notwithstanding anything contained in any agreement or in any law for the time being in force.
The petitioner invoked the provisions of the 2006 Act by filing a reference to the Facilitation Council on 3 October 2011. There was undoubtedly a dispute between the petitioner and the respondents in regard to the claim of the petitioner arising out of non payment of its bills. The respondents appointed a sole arbitrator on 5 October 2011 after the petitioner had invoked the intervention of the Facilitation Council on 3 October 2011 under Section 18 of the 2006 Act. Once the jurisdiction of the Facilitation Council has been validly invoked, the Council has exclusive jurisdiction to enter upon conciliation in the first instance and after conciliation has ended in failure, to refer the parties to arbitration - The Facilitation Council was clearly in error in entertaining the objection filed by the respondents and referring the petitioner to the sole arbitrator so designated by the respondents.
The impugned order of the Facilitation Council directing the parties to a reference before the sole arbitrator appointed by the respondents was manifestly illegal - the proceedings are restored back to the first respondent - The first respondent shall now act in accordance with the provisions of sub-section (3) of Section 18 and either conduct the arbitration itself or refer the arbitral proceedings to any institution or centre providing alternate dispute resolution services. The first respondent shall pass necessary orders in consequence of this direction within a period of one month from the receipt of a certified copy of this order.
Petition allowed.
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