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2017 (8) TMI 1728 - SUPREME COURT
Debarring the medical college of the Petitioner in the name and style of "Kanachur Institute of Medical Sciences and Research Centre" from making admission in MBBS Course for the academic years 2017-18 and 2018-19 and authorizing as well the Medical Council of India, to encash the bank guarantee of Rs. 2 crores furnished by it - requirement of opportunity of fair hearing - audi alteram partem Rule - HELD THAT:- The fact that the Petitioner's college/institution is a minority institution and that a major festival for the said community was scheduled on 12.12.2016 and that the day previous thereto i.e. 11.12.2016 was a Sunday, are facts which may not be wholly irrelevant. The observation of the Hearing Committee that Petitioner's college/institution has not explained the deficiency of faculty is belied by its representations and also the observations amongst others of the Oversight Committee.
The Hearing Committee seems to have ignored the explanation provided by the Professor and Head of Department of Surgery, explaining the treatment given to the three patients named in Clause xii (a) to (c) of the Inspection Report in concluding that, the Petitioner's college/institution had not responded thereto. Its deduction that there might have been more instances of multiple entries in the OPD patient statistics based on five such instances is also visibly presumptive. The striking feature of the observations of the Hearing Committee, on the basis of which the impugned decision has been rendered, is the patent omission on its part to consider the relevant materials on record, as mandated by this Court by its order dated 1.8.2017. The findings of the Hearing Committee, thus stands vitiated by the non-consideration of the representations/explanations of the Petitioner's college/institution, the documents supporting the same, the recommendations/views of the MCI, the observation of the earlier Hearing Committee, DGHS and Oversight Committee, as available on records.
The approach of the Respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to 'fair hearing', it is not longer res integra is an important ingredient of audi alteram partem Rule and embraces almost every facet of fair procedure.
In view of the persistent defaults and shortcomings in the decision making process of the Respondents, the Petitioner's college/institution ought not to be penalised. Consequently, on an overall view of the materials available on record and balancing all relevant aspects, the conditional LOP granted to the Petitioner's college/institution on 12.09.2016 for the academic year 2016-17 deserves to be confirmed.
The impugned order is set aside - petition allowed.
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2017 (8) TMI 1727 - CALCUTTA HIGH COURT
Probation of the will - contention of Bikash is that Mary withdrew various sums of money from the joint accounts held in the name of Mary and Abha. The moneys that she withdrew belonged to Abha and accordingly formed part of Abha's estate and hence Mary must pay back/deposit all such moneys withdrawn by her.
HELD THAT:- A probate court is required to decide whether the Will in question was the last Will of the testator, whether the same was duly attested by at least two witnesses and whether the testator had mental capacity to execute the Will. The Probate Court has also the jurisdiction to consider whether execution of the Will was vitiated by fraud, undue influence, coercion etc. being practised upon the testator or whether the Will was executed by the testator under some mistake or induced by false representation. It is settled law that a Probate Court is not entitled to go into the question as to whether or not the testator had title or possession in respect of the property covered by the Will. The probate granted by a Testamentary Court does not establish that the testator had title to the property covered by the Will.
It is not the duty of the Probate Court to consider any issue as to the title of the testator to the property with which the Will in question purports to deal or as to what disposing power the testator may have possessed over such property or as to the validity of the bequests made. It would be most injudicious to upset the settled practice of this court which has been uniformly followed since a long time and for the Testamentary Court to embark on the adjudication of difficult questions as to the ownership of the properties bequeathed by a Will.
The Probate Court has no authority or jurisdiction to decide questions of title. If a Will purports to deal with a property which belongs not to the testator but to somebody else, the remedy of that person is to approach the Civil Court to establish his right of ownership in respect of such property. Such person cannot seek to enlarge the scope of the probate proceeding by applying before the Probate Court to exclude his/her property from the affidavit of assets. Such person has to establish his/her right to such property in an appropriately constituted civil suit following due process of law.
The rival claims made by Bikash and Mary in their respective applications are completely beyond the scope and ambit of the present probate proceeding - there are no reason to withhold grant of probate of the said Will.
Application disposed off.
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2017 (8) TMI 1726 - MADRAS HIGH COURT
Revision of assessment and grant of time to the petitioner to file objection - HELD THAT:- This Court has repeatedly pointed out that if assessments are sought to be reopened based on the information culled out from the Official Website, the Assessing Officers cannot assess the dealer to tax without conducting an enquiry and in fact elaborate procedure has been suggested in the decision of this Court in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT]. However, the respondent did not embark upon any such exercise, though he has admitted in the impugned assessment order that mere information on website may not constitute information. Therefore, the impugned order to the said extent proposing to assess the petitioner to higher rate of tax based on information gathered from the department website has to be set aside.
The writ petition is partly allowed and the finding rendered by the Assessing Officer on the proposal made in the notice dated 23.05.2017 is set aside and the matter is remanded back to the respondent for fresh consideration, who shall furnish full particulars as sought for by the petitioner, grant 15 days time to submit their objections and after affording an opportunity of personal hearing to the petitioner, redo the assessment to the said extent in accordance with law.
Petition allowed in part and part matter on remand.
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2017 (8) TMI 1725 - BOMBAY HIGH COURT
Interference with the process issued against the accused Respondents on the private complaint filed by the wife of the deceased Bapu Nivrutti Gund - Probity of evidence - HELD THAT:- The High Court in the impugned judgment seems to have embarked on a virtual trial of the case though it was entertaining an application Under Section 482 Code of Criminal Procedure/Article 227 of the Constitution of India for quashing of the order taking cognizance and the complaint as a whole. The probity of the evidence tendered by the complainant's witnesses prior to issuance of process was even gone into by the High Court.
Having regard to the settled principles of law, the approach of the High Court not considered to be correct in law. At the stage at which the case was poised for consideration, it was beyond the jurisdiction of the High Court to have embarked upon the exercise that was undertaken. As the same appears to be in clear excess of jurisdiction, the order of the High Court is set aside and it is directed that the complaint proceedings against the accused Respondents be continued from the stage where the same was interdicted.
The order of High Court set aside - appeal allowed.
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2017 (8) TMI 1724 - CHHATTISGARH HIGH COURT
Grant of Regular Bail - second and third bail application - seeking grant of bail on medical grounds - HELD THAT:- The bail order of Mohan Lalwani and the documents filed along with these bail applications would show that Mohan Lalwani being aged about 60 years and because of ailment and further he was shown to be physically disabled as per Annexure A-12, was enlarged on bail. Therefore, the present applicants cannot claim parity of order on the basis of medical document submitted. Neither the degree of ailment or age is at par with the other coaccused. The fact that whether the primary evidence have been adduced or not and the statement of Manish Tawri (PW-11) who states about the presence of fracture cannot be decided during hearing the bail applications, it would be within the exclusive domain of the trial Court to examine the same. Any observation or finding at this stage would amount to usurp the power of trial Court.
Witnesses have already been examined, however, it appears that OP Singh, who is injured is still to be examined and progress of the trial is satisfactory since 11 witnesses have already been examined - there are no change in the circumstances to reconsider the bail again.
Bail application dismissed.
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2017 (8) TMI 1723 - PUNJAB AND HARYANA HIGH COURT
Violation of Section 50 of the Foreign Exchange Regulation Act - Condition of pre-deposit of 10% of the penalty amount imposed for hearing of the appeal - HELD THAT:- We are not opining finally on the merit of the controversy as the issue is pending before the Tribunal. There is prima facie, merit in the case set up by the petitioner. There is a certificate produced from the Chartered Accountants of the writ petition certifying that the petitioner had never been the director of the company, namely, M/s Sachdeva & Sons Industries (P) Limited.
Petitioner was a director in M/s Sachdeva & Sons Rice Mills Limited, a separate legal entity, which was a partner in firm M/s Sachdeva & Sons Industries. On dissolution of M/s Sachdeva & Sons Industries, partnership firm on 5.5.1997, M/s Sachdeva & Sons Industries (P) Limited, came into existence, which took over the business of M/s Sachdeva & Sons Industries, but the petitioner was not inducted as director in the newly incorporated company. There is nothing on record to suggest otherwise. Once, prima facie, on the basis of material produced on record before this Court, it is found that the petitioner was not the director in the company, namely, M/s Sachdeva & Sons Industries (P) Limited, directing her to deposit part of penalty as precondition for hearing of her appeal on merits will certainly cause undue hardship to her. Hence, in our view, the condition of pre-deposit of 10% of the penalty amount imposed on her for hearing of the appeal filed by her and pending before the Tribunal deserves to be set aside.
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2017 (8) TMI 1722 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD BENCH
Seeking sanction of proposed Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- Considering the entire facts and circumstances of the case and on perusal of the Scheme and the documents produced on record, it appears that the requirements of the provisions of Sections 230 and 232 of the Companies Act, 2013 are satisfied. The Scheme appears to be genuine and bona fide and in the interest of the shareholders and creditors.
The Scheme of Amalgamation, which is at Annexure K to the joint petition, is hereby sanctioned and it is declared that the same shall be binding on the petitioner companies, namely, Welpsun Energy Private Limited, WS Alloy Holding Private Limited and Welspun Steel Limited, their equity shareholders, preference shareholder, secured creditors and unsecured creditors and all concerned under the Scheme.
Petition allowed.
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2017 (8) TMI 1721 - RAJASTHAN HIGH COURT
Deduction u/s 80IA - captive power plant on DG Set when the power consumption was by the assessee company - addition on account of depreciation on catalyst which was not allowable as per Section 32 - sales tax collected and converted into loan - treating pre-payment of deferred sales tax liability as income - donation to DAV trust disallowed - deduction u/s 50B towards net current assets at their book value - ITAT deleted the additions - HELD THAT:- The issue no. 1 to 6 are covered by the decision of this Court in the case of same assessee in Tax Appeal [2017 (5) TMI 1500 - RAJASTHAN HIGH COURT]. Revenue appeal dismissed.
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2017 (8) TMI 1720 - DELHI HIGH COURT
Amount awarded to the extent of award of interest and costs - claim petition filed by the respondent/claimant was time barred - wrongly taken the reply given by the appellant to the winding up petition filed by the respondent in the Company Court as an acknowledgment of liability.
Whether the amount awarded to the extent of award of interest and costs is against the contract? - HELD THAT:- The learned counsel for the respondent before this Court has taken this Court to para 120 of the Award and it is seen that as per the total amount awarded under the Award there is no prelitigation interest awarded. This has been pointed out to the learned senior counsel for the appellant who concedes to this position. Therefore no argument remains with respect to alleged illegality in grant of pre-litigation interest in as much as no pre-litigation interest has been given by the Award - On the aspect of award of costs to the respondent/claimant the counsel for the respondent/claimant agrees that this award of costs be set aside in view of Clause 118.4 of the contract.
Claim petition filed by the respondent being time barred - HELD THAT:- The issue before the Arbitration Tribunal was that whether notices dated 20.09.2010 and 28.09.2010 were served upon the appellant. Arbitration Tribunal in this regard has given detailed findings in paras 46 to 52 of the Award and as per which discussion and conclusion, Arbitration Tribunal has found that the notice Exhibit C-7 dated 20.09.2010 is duly sent to the appellant company by registered post and, therefore, there is presumption of service under Section 27 of the General Clauses Act, 1897. The Arbitration Tribunal also holds that this notice Exhibit C-7 dated 20.09.2010 is also additionally served upon C&MD of the appellant and it cannot be held that merely because the notice is sent to Logix Cyber Park, it was not received by the appellant inasmuch as another letter Exhibit C-9 shows that at this address itself appellant has been receiving notices.
The law is well settled that the court hearing objections under Section 34 of the Act does not sit as an appellate court to re-apprise findings of facts and conclusions arrived at by the Arbitration Tribunal. Once the findings and conclusions of the Arbitration Tribunal are one possible and plausible finding and conclusion and such finding and conclusion is not in any manner grossly illegal or perverse, the court hearing objections under Section 34 of the Act will not substitute its view for that of the Arbitration Tribunal - Thus, no valid objections can be raised under Section 34 of the Act to question the service of the notices dated 20.09.2010 and 28.9.2010.
Wrongly taken the reply given by the appellant to the winding up petition filed by the respondent in the Company Court as an acknowledgment of liability - HELD THAT:- The third issue, need not be commented upon by this Court once the issue of time limitation has been decided in favour of the respondent/claimant and against the appellant/objector.
There is no merit in the appeal - Appeal dismissed.
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2017 (8) TMI 1719 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI BENCH
Sanction for the Scheme of Amalgamation - HELD THAT:- Perusal of the scheme shows that the accounting treatment is in conformity with the established accounting standards. In short, there is no apprehension that any of the creditors would lose or be prejudiced if the proposed scheme is sanctioned. The said Scheme of Amalgamation will not cast any additional burden on the stakeholders and also will not prejudicially affect the interests of any class of the creditors in any manner. The Appointed date of the said Scheme is 1st April, 2015 - There is no additional requirement for any modification and the said Scheme of Amalgamation appears to be fair and reasonable and is not contrary to public policy and not violative of any provisions of law. All the statutory compliances have been made under section 391 of the Companies Act, 1956.
The Company Petitions are allowed and the scheme of Amalgamation annexed with the petitions is hereby sanctioned which shall be binding on the members, creditors and shareholders.
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2017 (8) TMI 1718 - CESTAT NEW DELHI
Extended period of limitation - Reverse charge mechanism under Section 66A of the Finance Act - revenue neutral situation - penalty - HELD THAT:- The admitted fact is that the appellant was required to pay service tax on the services received from abroad under Section 66A of the Finance Act, 1994. The appellant did not pay service tax thereon. The show cause notice has been issued by invoking extended period of limitation. Therefore, it is required to be seen whether there was malafide intent of the appellant not to pay service tax.
Admittedly, whatever service tax paid by the appellant same is refundable in terms of Notification No. 41/2007, therefore, the appellant is entitled for refund claim. In that circumstances, the ingredient of malafide intention on the part of the appellant is missing.
Thus, it is a situation of neutrality. Therefore, in that circumstances, service tax cannot be demanded from the appellant. Accordingly, the impugned order is set aside - thus, no penalty is imposable on the appellant - appeal allowed.
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2017 (8) TMI 1717 - ITAT CHANDIGARH
TDS u/s 194C - TDS not paid on External Development Charges to GMADA - 'assessee in default' under the provisions of Section 201(1) & 201(1A) - HELD THAT:- We have gone through the factual material available on record and found that such payments are out of legal obligations rather than contractual arrangements, and it is only when payments are made "in pursuance of a contract" that the provisions of section 194C come into play. The contract may be oral or written, express or implied but there must be a contract nevertheless. In the present case, however, the payment is on account of legal obligation.
We have further gone through the order of the Ld. CIT (A) for the AY 2013-14 in the case of the assessee where in it was held the assessee is not liable to deduct TDS on the EDC payments. On the factual matrix of the assessee these payments do not fall under the category of contractual payment and hence assessee is not liable to TDS under section 194C. Decided in favour of assessee.
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2017 (8) TMI 1716 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of petition under Sections 397 and 398 of the Companies Act, 1956 - claim under Section 59 of the Companies Act, 2013 - name of the appellant's has not recorded in the register of shareholder - HELD THAT:- Except a member qualified in terms of Section 399 (now Section 244 of the Companies Act, 2013), no other person is entitle to file any petition under Sections 397 and 398 (now Section 241 and 242 of the Companies Act, 2013), the application at the instance of the applicant under Sections 397 and 398 was not maintainable.
Application under Section 59 of the Companies Act, 2013 - HELD THAT:- Once the Tribunal held that petition under Sections 397 and 398, was not maintainable, the Tribunal was not required to decide the merit of the claim under Section 59 of the Companies Act, 2013, which is required to be decided on different criteria. As the petition was not maintainable before the Tribunal, it was not open to the Tribunal to give any finding with regard to the merit of the claim under Section 59 of the Companies Act, 2013.
The observation of the Tribunal with regard to the merit of the application under Section 59 of the Companies Act, 2013 are set aside. The order dated lOth March, 2017 stands modified - application preferred by the appellant under Sections 397 and 398 is dismissed.
Appeal disposed off.
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2017 (8) TMI 1715 - RAJASTHAN HIGH COURT
ITAT justification in remanding matter back to CIT(A) - Before proceeding with the matter, we suggested both the side that documents are available in the tribunal and it was the duty of the tribunal to consider the same. In that view of the matter, the order of the tribunal remanding back the matter to the authority is required to be quashed and set aside to which they agreed.
HELD THAT:- We have not examined the matter on merits but in view of the fact that factual matrix is to be examined by the tribunal, we remit back the matter to the tribunal with the specific directions that the documents which are already on record and if either side make an application under Rule 29, if so desires, after following the procedure, will hear the matter afresh.
We make it clear that the tribunal will not influenced effected by the order of this court and will appreciate the facts independently and after hearing the parties to decide the matters afresh after following the procedure. It is made clear that the tribunal will consider all the issues which are raised before it.
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2017 (8) TMI 1714 - SECURITIES AND EXCHANGE BOARD OF INDIA, MUMBAI
Company mobilized resources by issuing RPS to the public - default of RPS [Redeemable Preference Shares] issue - accountability of a Director to the actions of the Company - as per DR Directors including the appellant are jointly and severally directed to forthwith refund the money collected by the company through the issuance by Redeemable Preference Shares with interest at the rate of 15% from the date when the repayment became due till the date of actual payment - As argued Director of the company had confirmed that the resignation letter of the appellant as been accepted in the Board Meeting, neither involved in the business activities/operations nor the appellant took part in any Board Meetings, General Meetings, thus nor the appellant was paid with any remunerations or fees or had not taken any monitory benefits whatsoever in cash or kind.
HELD THAT:- In the Memorandum of Appeal the appellant has annexed a letter which is written by appellant to the Managing Director of the company wherein the appellant has clearly stated that he intends to discontinue as a Director of the company with effect from 15.05.2010. This letter addressed by the appellant to the company completely falsifies the case sought to be made out in the Appeal that he had resigned on 10.03.2009 and the same was accepted by the company on 12.03.2009.
Even the letter addressed by the Whole Time Director and Authorised Signatory to the effect that the appellant during the period from 24.11.2008 to 12.05.2010 was not at all involved in the business activities/operation of the company is falsified by the letter addressed by the appellant on 12.05.2010 wherein the appellant intended to discontinue as a Director of the company with effect from 15.05.2010. Argument advanced byappellant was compelled to write the aforesaid letter on 12.03.2009 is clearly an afterthought and totally unbelievable. In these circumstances, we are clearly of the view that there is no merit in the appeal and the case sought to be made out in the appeal is totally false.
At this stage, counsel for SEBI fairly stated that liability of the appellant to refund the amount along with the company and other Directors would be in relation to the amount collected by the company up to 02.05.2010 as the appellant had ceased to be a Director of the Company with effect from 15.05.2010. Statement made by counsel for SEBI is accepted.
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2017 (8) TMI 1713 - CALCUTTA HIGH COURT
Rejection of prayer for discharge of the petitioner - exoneration of the petitioner by the Disciplinary Committee - whether the exoneration would render the allegations against him in the impugned prosecution groundless so as to justify his discharge at this stage? - HELD THAT:- The role of the petitioner is not restricted to mere certification as to the nature of business of the accused borrowers as claimed by the Committee in its reports dated 8th February, 2016. He had been employed by the accused borrowers to prepare projected financial statements of the firms and there is ample materials on record to show that such projected financial statements were based on forged and fabricated documents and had been generated to create a false impression with regard to the financial viability of the said firms. Such financial statements were kept on record by the principal accused, that is the branch manager, Atanu Kr. Mitra, as a facile cover-up to justify his unauthorized extension and/or enhancement of cash credit facilities and other financial benefits to the borrowers in utter disregard to prudent banking procedure and his permissible lending limits thereby causing wrongful loss to the bank.
It is nobody’s case that the instant prosecution was initiated on the finding of the disciplinary authority which has been set aside by a superior authority. On the other hand, the instant prosecution and the proceeding under the Chartered Accountants Act have completely different scope and arena of enquiry and adjudication. While the former involves a prosecution into allegations of conspiracy with a public servant to misappropriate public funds of a bank, the latter is restricted to professional misconduct alone. The findings of the Disciplinary Committee by no stretch of imagination can be said to be binding on the criminal court where the accusation is to be proved on the basis of evidence adduced before it in accordance with law - The Committee was not at all concerned with the allegations of criminal conspiracy and/or criminal misconduct which are the material issues in the impugned prosecution.
Thus, no reliance could be placed on the findings of the Committee to negate the substantial materials on record which give rise to a strong suspicion as to the involvement of the petitioner in the alleged offences - the prayer for discharge of the petitioner from the instant case was rightly turned down. The petitioner, however, shall be at liberty to raise all just defences in the course of trial of the instant case in accordance with law.
Petition disposed off.
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2017 (8) TMI 1712 - CALCUTTA HIGH COURT
Issuance of termination notice - Seeking Injunction restraining the respondent whether by itself or its men, agents, servants, assignees or otherwise howsoever from interfering with the peaceful exercise of the rights and discharge of obligation by the petitioner in accordance with the agreement - HELD THAT:- In order to merit consideration for grant of an injunction the prima facie case of the petitioner has to be established. To a very large extent the strength and weaknesses of the case of the parties have to be assessed by the court on the available evidence to come to a provisional conclusion as to whether the petitioner, on a balance of probabilities, has a better case than that of the respondent. Once the petitioner has been able to establish a prima facie case the court proceeds to consider the balance of convenience and the irretrievable injury factor. This means that the balance of convenience must be in favour of an order being passed in favour of the petitioner and that irretrievable injury will be caused to him if the order is denied.
It is settled law that in case where damages provide the remedy an interim order of injunction cannot be granted. Conversely in contractual matters only in a suit for specific performance of an agreement could the court grant an order of injunction. This common law principle is well spelt out in Section 41(e) of the Specific Relief Act, 1963. It is also trite that the court will not grant an order of injunction in a contract which is, by its nature determinable, and for breach of which damages are an adequate relief, or in a contract performance of which entails constant supervision by the court or one which runs into minute details.
The termination notice dated 11th July, 2017 is set aside. Ordinarily, the petitioner ought to have been granted time upto 7th September, 2017 to complete the work. Since, this application has been pending in this court for nearly 45 days, the petitioner will get advantage of this period. The respondent is restrained by an order of injunction from terminating the contract till 7th September, 2017 and for a further period of 45 days thereafter.
After this period the contract can only be terminated for any alleged breach of the petitioner after the date of this order. The petitioner will be entitled to resume the work forthwith - respondent is directed to co-operate with the petitioner.
Application allowed.
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2017 (8) TMI 1711 - ITAT CHENNAI
Reopening of assessment - withdrawal of the exemptions granted u/s.10(38) - disallowance u/s.14A r/w Rule 8D - HELD THAT:- Admittedly, the re-opening has been done beyond the period of four years from the end of the relevant assessment year and consequently, the reasons recorded must disclose the failure on the part of the assessee to disclose fully and truly all material facts required for assessment. In the present case, the reasons recorded do not specify the failure on the part of the assessee to disclose truly and fully all the material facts in respect of the assessment.
A perusal of the reasons recorded clearly shows that the same is a verbatim extract of the audit objection. On both these grounds, the reopening is bad in law. However, as the assessee has withdrawn the ground in respect of the challenge to the disallowance u/s.14A, we are unable to quash the re-opening, as if the re-opening assessment is validly initiated in respect of one of the issues, then the AO would be entitled to examine other issues also in the course of the re-opened assessment. In these circumstances, as the assessee has withdrawn the ground in respect of the challenge to the disallowance made u/s.14A, we are of the view that the re-opening is valid. In these circumstances, Ground Nos.1 & 2 of the assessee’s concise grounds stands dismissed.
Claim u/s.10(38) in respect of the long term capital gains - A perusal of the Assessment Orders for the earlier years clearly shows that the Revenue has recognized that the assessee is in the business of Derivative, Future & Options in shares and the assessee is having investments in shares which has given rise to long term capital gains and short term capital gains which are being assessed as offered. It is only during this year that the Revenue has shifted its stand and has attempted to tax the long term capital gains disclosed by the assessee and claimed as exempt u/s.10(38) as a business income of the assessee.
Circular issued by the CBDT in Circular No.6/2016 in F.No.225/12/2016-ITA-II clearly shows that “In respect of listed shares and securities held for a period of more than 12 months immediately preceding the date of its transfer, if the assessee desires to treat the income arising from the transfer thereof as Capital Gain, the same shall not be put to dispute by the Assessing Officer. However, this stand, once taken by the assessee in a particular Assessment Year, shall remain applicable in subsequent Assessment Years also and the taxpayers shall not be allowed to adopt a different/contrary stand in this regard in subsequent years"
This applies to the Revenue also. In the present case, the assessee has been consistently holding his claim of long term capital gains in respect of his investments in shares. This being so, we are of the view that the AO is not justified in denying the assessee’s claim of deduction u/s.10(38). In these circumstances, the AO is directed to grant the assessee, the claim u/s.10(38) in respect of the long term capital gains disclosed by the assessee.
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2017 (8) TMI 1710 - ITAT INDORE
Disallowance of commission expenses - CIT(A) deleted part addition - HELD THAT:- we find that the assessee has submitted detailed evidences like names of the agents, PAN numbers, describing services rendered by the Agents, confirming the transaction, details of the TDS made. In remand report proceedings, the AO issued notice under section 133(6) to these against who appeared before the AO and admitted of rendering services as a receipt of commission from the assessee. We also note that the MPLUN was nodal agency for supply of goods but was not charge as commission instead it was charging service charges as per agreement entered in to between the assessee and it. We also note that the assessee is dealing in supplies of pharmaceuticals products to various states like Orissa, Assam, Meghalaya which are falling in remote areas which is spread over a large geographical area. Therefore, requirement of Representatives for doing such jobs cannot be denied.
These commission agents have filed detailed reply before the AO and described the various formalities and services required to be handled by the assessee or representatives of the agents - we are of the considered opinion that the ld. CIT(A) was not justified in deleting only 50% of the commission payments paid to private parties debited to the profit and loss account. We also find that payments made to commission agents are unrelated to the assessee therefore, there cannot be said that the quantum of commission is not justified.
Thus as the commission has been paid in respect of service rendered for facilitating the recoveries, giving information of tenders etc. which are not prohibited by law, we are of the view that no disallowance of commission payment is called for. Decided in favour of assessee.
Addition u/s 68 - Unexplained cash credit - HELD THAT:- When we analyse the company wise facts then we find that these companies have filed reply to notice under section 133(6) to the AO directly. There are no cash deposit before issue of cheque to the assessee. All the creditors have filed copy of income-tax return acknowledgement, confirmation letters, copies of the bank statements, copies of accounts, acknowledgement of ITRs, computation, audited annual accounts, etc. were placed on record
The assessee filed all possible documents before the AO which were also submitted to the AO by the respective companies in response to notices u/s 133(6) of the Act issued during remand proceedings and thus we can safely hold that the assessee discharged its onus lay upon its shoulders to prove the identity, creditworthiness of the creditors and genuineness of the transactions. From the relevant part of the assessment order, we observe that the AO merely proceeded to make addition under section 68 of the Act keeping aside all the relevant documents, which were filed by the assessee and the alleged companies. Accordingly, we have no hesitation to hold that we are unable to see any ambiguity, perversity or any other reason to interfere with the first appellate order which granted relief to the assessee. Hence, we uphold the same. Decided in favour of assessee.
Disallowance of amount of interest u/s 36(1)(iii) on addition to building account - assessee has raised loans during the year for capital work in progress of building construction as the building has not been put to use during the year under consideration - HELD THAT:- The perusal of Annexure -C, forming part of Form No. 3 CB (PB- 11& 20) showed that that the assessee had shown addition after 30.09.2006 to building account on which depreciation has been claimed and allowed by the AO. Thus, it is discernible that there is work in progress on account of building construction account; hence, disallowance on account of interest on addition to building account is not justified. Therefore, the AO is directed to delete such disallowance of interest expenses. We order accordingly. This ground of appeal is thus, allowed.
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2017 (8) TMI 1709 - JAMMU AND KASHMIR HIGH COURT
Illegal suspension - seeking reinstatement after the expiry of three months - whether in a case where order of suspension is not followed by the service of memorandum of charges/charge-sheet on the delinquent officer within three months, as has been held in Ajay Kumar Choudhary’s case [2015 (6) TMI 592 - SUPREME COURT], could the respondents still continue the appellant under suspension only because the relevant regulations permitted suspension for a period of six months or even thereafter - HELD THAT:- In Ajay Kumar Choudhary’s case, it is found that the directions were clear and unambiguous and those were that the suspension order would not extend beyond three months if within that period the memorandum of charges/chargesheet was not served upon the delinquent officer/employee and if the charge-sheet was served, a reasoned order would have to be passed for extension of the suspension - these directions were not made subservient to the rules and regulations as applicable to delinquent officers and employees in individual cases.
Admittedly, in the present case, the charges were served upon the petitioner on 18.01.2017, that was beyond the period of three months as envisaged in the judgment and failure to serve the charges within this period would indeed entitle the appellant to reinstatement. The respondents, therefore, by placing reliance upon the PSB Vigilance Manual could not have extended the period of suspension thereafter or invoke its power to review the same for purposes of extending the same.
Respondents are directed to reinstate the appellant forthwith. It would however be free to transfer the appellant to any other office within or outside the State, so as to prevent any interference in the enquiry being conducted against him - appeal allowed.
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