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Showing 41 to 60 of 2114 Records
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2018 (2) TMI 2075 - PUNJAB & HARYANA HIGH COURT
Demand of royalty - grievance of the petitioner is that since no passage has been provided it has restricted the mining operations, coupled with the issue of illegal mining that has prevented him from utilising the mining area effectively and despite representation to this effect the respondents have not heeded to his prayer and on the other hand burdened him with a demand of royalty - HELD THAT:- In case the petitioner deposits the said amount within the stipulated period, issue notice of motion for 27.03.2018.
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2018 (2) TMI 2074 - GUJARAT HIGH COURT
Reopening of assessment u/s 147 - Addition u/s 68 - onus to prove - sufficiency of the reasons recorded by the Assessing Officer - HELD THAT:- Basic onus on the assessee to establish identity of the investor, genuineness of the transaction and creditworthiness attaches, also attaches on a company. There is a clear distinction between a situation where the company discharges its basic onus of providing details of the share applicants, genuineness of the transactions and their creditworthiness, but the Revenue still chases the company instead of inquiring with the investors if any mismatch or unexplained investments are found as compared to a situation where large scale share applications are found to be totally bogus transactions, are completely fictitious or stated to have been entered into by non existent persons or entities. The former is seen as a case where the company has discharged its own whereas the later would be a situation where the very genuineness of the transaction is in doubt. We therefore, do not accept the legal contention in this respect canvased by the counsel for the petitioner.
As held by the Supreme Court in case of Rajesh Jhaveri Stock Brokers P. Ltd. [2007 (5) TMI 197 - SUPREME COURT] the sufficiency of reasons cannot be gone into at this stage. Nevertheless, the Assessing Officer must have tangible materials at his command to form a belief that the income chargeable to tax had escaped assessment. In this context, we may recall the Assessing Officer referred to the materials available with him which prima facie suggested that the assessee company had received share capital and share premium from various companies which were proved to be bogus companies engaged in providing mere accommodation entries. After analysing such materials, he came to the conclusion that share capital/share premium amounting to Rs. 1.55 crores received by the assessee during the financial year 2009-2010 relevant to the present assessment year was bogus. It cannot be stated that the Assessing Officer did not have tangible materials at his command to form such a belief.
His reference to “materials on record” must be understood in the context of facts on record. The Assessing Officer was not writing a statute. His expression therefore, cannot be seen with such rigidity. If therefore, he referred to the returns filed by the assessee and the accompanying documents as also materials received by him post acceptance of return, ofcourse without scrutiny as “materials on record”, he did not commit any legal error. He was ofcourse, referring to the materials placed for his consideration which enabled him to form such a belief.
The contention that this is a case of borrowed satisfaction also cannot be accepted. The Assessing Officer had perused the materials and analysed the same so as to come to the conclusion that prima facie it suggested that the assessee had received large number of share applications/share premiums from the companies which were bogus companies and which engaged in providing accommodation entries.
The respondent has filed affidavit stating that before issuing notice, sanction was granted by the competent authority. A statement on oath, in absence of any contrary material on record need not be disbelieved. - Decided against assessee.
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2018 (2) TMI 2073 - ITAT PUNE
Revision u/s 263 - Eligibility of Deduction u/s 80IA - depreciation @ 25% on the project cost on WDV basis - as per CIT since the assessee is a partnership firm, cannot be considered to be a consortium so as to be eligible for claiming deduction u/s 80IA(4) - Also according to Ld. PCIT, AO has ignored the aforesaid fact and had allowed the deduction and secondly for the reason that assessee had claimed depreciation @ 25% on the project cost on WDV basis and the claim of depreciation was allowed by the AO whereas as per CBDT Circular No.9/2014, the entire cost of construction and development had to be amortised evenly over the period of concession - HELD THAT:- On the issue of depreciation @ 25% claimed by assessee and allowed by AO, it is an undisputed fact that assessee had entered into different concession agreements with Public Works Department of Maharashtra for construction of certain roads and its operation and maintenance for an agreed period on Build Operate and Transfer (BOT) basis. By virtue of the concession agreement, assessee was granted right to collect and retain toll for the defined concession period. The right to collect toll was considered by assessee to be a form of licence and thus an intangible right as per provisions of Sec.32(1)(ii) of the Act and therefore being eligible for depreciation at 25%. We find that on identical facts namely the issue of depreciation on intangible rights, was before the Coordinate Bench of Pune Tribunal in the case of Ashoka Infrastructure Pvt. Ltd [2013 (8) TMI 588 - ITAT PUNE]has held that the right to collect toll is capital expenditure and consequently the assessee is entitled to claim depreciation on such intangible assets as provided u/s 32(1)(ii) of the Act. Before us no material has been placed by the Revenue to demonstrate that the aforesaid decision of Pune Tribunal in the case of Ashoka Infrastructure (supra) has been set aside / overturned by higher judicial forum. Further, in view of the aforesaid facts, we are of the view that the view /opinion of the AO of holding the right to collect toll as an intangible asset, and therefore eligible for depreciation and allowing the claim of depreciation to the assessee was a possible view.
It is a settled law that so long as the view taken by the Assessing Officer is a possible view then the same ought not to be interfered with by the Commissioner under Section 263 of the Act merely on the ground that there is another possible view on the matter. As far as the contention of the Revenue that on the issue of depreciation, there was no whisper of having being examined by the AO in the assessment proceedings, it has been held by various authorities that the mere fact that the issue did not fall for discussion in the assessment order would not ipso facto lead to the conclusion that the Assessing Officer did not apply his mind to the issue.
Eligible for deduction u/s 80IA(4) as it being a partnership firm - It is a fact that according to provisions of Sec.80IA(4)(i)(a), the section applies to an enterprise which is a company registered in India or a consortium of companies or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act. It is also a fact that the word “consortium” used in the provision has not been defined in the Income Tax Act. As per the Merriam Webster dictionary, the word “consortium” means “an agreement, combination, or group (as of companies) formed to undertake an enterprise beyond the resources of any one member”. As per the Collins English Dictionary, a “Consortium” is a group of people or firms who have agreed to co-operate with each other”. We find that the Hon’ble Madhya Pradesh High Court in the case of Org Informatics [2011 (4) TMI 1536 - MADHYA PRADESH HIGH COURT] has observed that a consortium is akin to a partnership where each partner is liable for action of other partners. In the present case it is not the case of the Revenue that in the partnership firm, there are other non corporates, who are partners or the firm is not for the purpose of business. It is seen that the assessee has been granted the benefit of deduction u/s 80IA(4) in earlier years and in 2 assessment years i.e., A.Y. 2006-07 and A.Y. 2010-11, the benefit of Sec.80IA(4) was denied to the assessee by the AO for a different reason and not for the reason that the assessee was a firm and not a consortium of companies.
Thus, the claim of deduction u/s 80IA(4) of the Act has been allowed to the assessee in past from A.Y. 2004-05 onwards. Further, Revenue has not brought on record any new facts in the year under consideration due to which the claim of deduction u/s 80IA(4) could be denied to the assessee. Before us, Revenue has not brought any material on record to demonstrate that the view taken by the AO was an impermissible view or was contrary to law or was upon erroneous application of legal principles necessitating the exercising of Revisionary powers u/s 263 - Decided in favour of assessee.
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2018 (2) TMI 2072 - DELHI HIGH COURT
Presence of the counsel for the Petitioner within visible range but outside audible range while the Petitioner is questioned by its officers - HELD THAT:- The Petitioner having been in custody for 52 days during which time he was not questioned by the Customs Department, it is appropriate that the Petitioner's prayer in this application should be allowed - It is accordingly directed that the Petitioner shall be permitted the presence of an Advocate of his choice within range of sight but outside audible range while being questioned by the Customs Department hereafter.
Application disposed off.
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2018 (2) TMI 2071 - ITAT CHENNAI
TDS u/s 195 - taxability of Business Development Commission - payments effected by the assessee to its principal abroad - whether payments made by the Appellant to US Parent Company towards Business development Commission (marketing services) result in income chargeable to tax in India ? - HELD THAT:- Assessee had never raised a plea before the ld. AO regarding application of DTAA between India and USA. In fact, the only finding given by the ld. Assessing Officer was that the payments effected by the assessee to its principal abroad was liable for deduction of tax at source u/s.195 of the Act. There is no specific finding by the ld. AO on the nature of the payments made by the assessee to SGS, USA nor has he given the specific reasons why he considered it to be liable for deduction of tax at source.
The nature of the services rendered by its principal to the assessee is not clear from the records. Assessee did not produce the transfer pricing study nor the order of the ld. TPO, before us, which could have given a fair idea of the nature of services rendered by SGS, USA. Further, assessee also did not produce the invoices raised by SGS USA for services rendered by it, nor any communication between the said company and the assessee.
Before coming to a conclusion whether services rendered by SGS USA to the assessee was of a nature which required deduction of tax at source as per Section 195 it is required to have a look on all the underlying documents. In our opinion, lower authorities should have made a thread-base study of the invoices, agreements entered between the assessee and its customers and the communication exchanged between assessee and SGS USA as well as assessee and its customers abroad. It was also necessary to verify the cost plus method followed by the assessee for its billing and verify what part of its profit were transferred to SGS USA, and whether such transfer was effectively for shifting of profits camouflaging it as commission.
A wholesome view was not taken by any of the lower authorities. Coming to the judgment of Hon’ble Apex Court in the case of Hindustan Petroleum Corporation Ltd [2005 (9) TMI 624 - SUPREME COURT] relied on by the ld. Authorised Representative, the Revenue in the said case had tried to supplement the finding of the ld. Assessing Officer. In our opinion, this Tribunal being the final fact finding body, cannot be restrained from looking into all the facts that are associated with an issue raised before it, which have a bearing on the ultimate adjudication of such issue. In our opinion, the judgment relied on by the ld. Authorised Representative, will not stop this Tribunal from looking into TP study of the assessee which is very relevant in ascertaining the nature services rendered by the SGS USA. In the fitness of the things, we are of the opinion that the issue requires a fresh look by the ld. Assessing Officer. Ld. Assessing Officer has to go through all the necessary documentations and come to a decision whether the payments made by the assessee to SGS USA required deduction of tax at source under the Act and whether there was any concerted effort to shift profits by camouflaging it as commission on sales. We therefore set aside the orders of the lower authorities and remit the issue back to the ld. Assessing Officer for consideration afresh, de novo, in accordance with law. Ground of the assessee is allowed for statistical purpose
Allowance of set off the loss one of the STP unit of the assessee against business income from others - HELD THAT:- The issue raised by the Revenue stands settled in favour of the assessee by the judgment of Hon’ble Apex Court in the case of CIT vs. Yokogowa India Ltd [2016 (12) TMI 881 - SUPREME COURT] we are of the opinion that ld. Commissioner of Income Tax (Appeals) was justified in directing the ld. Assessing Officer to allow the set off loss on the STP unit against income from other units. We do not find any reason to interfere with the order of the ld. Commissioner of Income Tax (Appeals) in this regard.- Decided against revenue.
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2018 (2) TMI 2070 - ITAT AHMEDABAD
Disallowance u/s 14A r.w.r. 8D - disallowance of interest expenditure - HELD THAT:- As in the Asstt.Year 2012-13 [2017 (12) TMI 1611 - ITAT AHMEDABAD] the Tribunal has restricted the disallowance of interest expenditure equivalent to the dividend income or exempt income by following the decision of the Hon’ble Delhi High Court in the case of CIT Vs. Taikisha Engg. (I) Ltd., [2014 (12) TMI 482 - DELHI HIGH COURT] - Tribunal has placed reliance upon the decision of the ITAT, Mumbai Bench in the case of Daga Global Chemicals Ltd.[2015 (1) TMI 1204 - ITAT MUMBAI]
Neither the AO has mentioned exact amount of dividend income or exempt income earned by the assessee in the assessment order nor ld.CIT(A) - It is not discernible from the record whether these details were given to the AO or not, and whether the AO has verified this or not. Considering this aspect, we deem it appropriate to set aside the issue to the file of AO with direction that the ld.AO shall verify quantum of dividend income/exempt income and restrict the disallowance out of interest expenditure equivalent to the exempt income/dividend income. Appeal of the assessee is allowed for statistical purpose.
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2018 (2) TMI 2069 - DELHI HIGH COURT
Assessment u/s 153A - Whether any incriminating material seized or discovered during the search? - HELD THAT:- In these appeals by the Revenue, the Income Tax Appellate Tribunal directed that the amounts brought to tax by the Revenue Authorities, in search assessments completed under Section 153A of the Income Tax Act, 1961, could not be sustained because the additions were not based upon any incriminating material seized or discovered during the search. In so concluding, the ITAT followed the ruling of this Court in the case of Commissioner of Income Tax vs. Kabul Chawla,2015 (9) TMI 80 - DELHI HIGH COURT]. Hence, no question of law arises. Appeal dismissed.
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2018 (2) TMI 2068 - ITAT AHMEDABAD
Penalty u/s. 271(1)(c) - long term capital gains and interest income addition - HELD THAT:- Assessee resides mostly in USA and her caretaker manages all of her domestic chorus including tax matters. It is evident that she had not declared the third transaction, proportionate cost of acquisition and interest income at the first instance. The fact however remains that the impugned sale deeds pertain to the very survey numbers. We observe in these facts that possibility of overlapping in such an instance cannot be completely ruled out.
Once the assessee is not managing her affairs on her own, the possibility of an inadvertent error is clearly indicated in even claiming double cost of acquisition added back later. We take into account all these facts to quote hon’ble apex court’s landmark judgment in Price Water-house Coopers Pvt. Ltd. vs. CIT [2012 (9) TMI 775 - SUPREME COURT] that such inadvertence cannot be termed as an instance attracting the impugned penalty provision in Section 271(1)(c) of the Act. We repeat that the assessee’s multifolded errors hereinabove inter alia in not having declared only two sale transactions instead of three, not adjusting cost of indexation on proportionate basis, not declaring interest income in 1000s of rupees and not being able to prove cost of improvement which were admitted latter on being pointed out jointly read lead us to a conclusion that it was a silly mistake on her part on all these issues. We thus draw support from hon’ble apex court’s abovestated judgment to conclude that both the lower authorities have erred in imposing the penalty in question u/s. 271(1)(c) of the Act. The same is therefore deleted. - Decided in favour of assessee.
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2018 (2) TMI 2067 - TELANGANA HIGH COURT
Scope of Jurisdiction - Whether the pendency of appeals before CESTAT debars the respondent from prosecuting the petitioners for the offence punishable under Section 9 of the Central Excise Act, 1944, if so, whether the proceedings on the file of Special Judge for Economic offences, Hyderabad are liable to be quashed? - Section 9 of the Central Excise Act - HELD THAT:- The scope of jurisdiction of this Court under Section 482 of Cr.P.C. is limited and this Court at this stage cannot appreciate the facts on record, but verify and conclude that if the allegations made in the complaint prima facie constitutes any cognizable offence, the Court shall not quash the proceedings since the powers of this Court are limited to give effect to the orders passed under the Code, to prevent abuse of process of Court or to meet the ends of justice.
Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 - If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious.
The main endeavour of the learned counsel for the petitioners is that when appeals are pending against the orders passed by the Commissioner, the Criminal Proceedings cannot be continued and liable to be quashed since the finding of the CESTAT will have its own bearing on the criminal prosecution, if for any reason CESTAT concluded that these petitioners did not avail “Cenvat Credit” on the alleged fake bills, then the prosecution is liable to be ended in favour of the petitioners. Therefore, the criminal prosecution during pendency of appeals, against the petitioners is nothing but abuse of process of Court as an arm twisting method to collect penalty and duty levied as per the order passed by the Commissioner - When a criminal prosecution is launched during pendency of appeals, in the criminal case all the ingredients of the offence in question have to be established in order to secure the conviction of the accused. The criminal court no doubt has to give due regard to the result of any proceeding under the Act having a bearing on the question in issue and in an appropriate case it may drop the proceedings in the light of an order passed under the Act. It does not, however, mean that the result of a proceeding under the Act would be binding on the criminal court. The criminal court has to judge the case independently on the evidence placed before it.
It is a fit case to stay pronouncement of judgment in C.C.No.132 of 2017 while permitting the Special Judge for Economic Offences at Hyderabad to try the accused for the offence punishable under Section 9 of the Central Excise Act - there are no ground to quash the proceedings in C.C.No.132 of 2017 on the file of Special Judge for Economic Offences at Hyderabad, since I find prima facie material against these petitioners to constitute offence punishable under Section 9 of Central Excise Act and that initiating criminal prosecution against these petitioners during pendency of appeals before CESTAT does not amount to abuse of process of Court - petition dismissed.
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2018 (2) TMI 2066 - ITAT MUMBAI
Disallowance of deduction claimed u/s.24 in respect of income from House Property - AO disallowed assessee’s claim of deduction u/s.24 on the plea that assessee is a Trust - HELD THAT:- Income of the Trust is to be computed commercially, keeping in view the provisions of the Act, The Hon’ble Punjab and Haryana High Court in the case of Tiny Tots Education Society [2010 (7) TMI 377 - PUNJAB AND HARYANA HIGH COURT] held that assessee is entitled to claim depreciation even if entire amount of assets have been shown as utilization of funds.
Jurisdictional High Court in case of Institute of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY HIGH COURT] has also held that claim of depreciation on fixed asset has to be allowed even if entire amount was shown as utilization of funds while computing surplus of the assessee’s funds. This decision of the Bombay High Court has been recently affirmed by the Hon’ble Supreme Court. Applying the proposition of law laid down in case of Institute of Banking Personnel Selection, we do not find any merit for the disallowance of claim of deduction u/s.24 in respect of income of assessee-Trust from House property. - Decided in favour of assessee.
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2018 (2) TMI 2065 - DELHI HIGH COURT
Delayed employees’ share of the contributions made for the employees’ welfare in the relevant schemes in the Employees’ Provident Funds Act, 1952 and the Employees State Insurance Act, 1948 - applicability of Section 43B - AO had disallowed amounts claimed, by the assessee holding them to be subject to deduction under Section 36(1)(va) - HELD THAT:- ITAT went by the previous decision of this Court in Commissioner of Income Tax v. AIMIL Ltd. & Ors. [2009 (12) TMI 38 - DELHI HIGH COURT]
That judgment had relied upon the Supreme Court ruling in Commissioner of Income Tax v. Vinay Cement Ltd. [2007 (3) TMI 346 - SC ORDER]. Since the issue is covered by rulings of this Court and the ITAT merely applied the ratio in those decisions, no question of law arises.
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2018 (2) TMI 2064 - GUJARAT HIGH COURT
Assessment u/s 153A - addition made under Section 41 (1) of the Act as also in respect of unaccounted purchase and sale - whether addition cannot be made if no incriminating material is found? - ITAT deleted the addition - HELD THAT:- The Tribunal, while confirming the view of CIT [Appeals] relied on judgment of Saumya Construction Private Limited, [2016 (7) TMI 911 - GUJARAT HIGH COURT] held that since the Assessing Officer had sought to make additions and disallowances independent of the incriminating material found during search, the same was not permissible. The view of the Tribunal is well supported by decision of this Court in Saumya Construction Private Limited [Supra]. Tax appeal dismissed.
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2018 (2) TMI 2063 - DELHI HIGH COURT
International transactions/activities in respect of one of the services rendered to its associated enterprises i.e. (AE) - HELD THAT:- We admit following question of law arises - “Did the ITAT commit an error in law in holding that the assessee was engaged in knowledge management systems and international transactions/activities in respect of one of the services rendered to its associated enterprises i.e. (AE).”
Notional interest attributed to the assessee and for which adjustment was made by the TPO, was finally affirmed by the ITAT - This Court has considered the submissions of the parties and is of the opinion that having regard to the considered view in the case of Pr. CIT Vs. Kusum Health Care Pvt. Ltd. [2017 (4) TMI 1254 - DELHI HIGH COURT], the matter requires further examination/scrutiny; the reasons for the credit or delay in payment needs to be examined. The matter is therefore remitted back to the ITAT which may, connected matters deem necessary, file a report in this regard.
Did the ITAT fall into an error in excluding the relative comparables which were held to be irrelevant for the purpose of ALP determination in the circumstances of the case.? - Notice of both the appeals are accepted by the concerned parties. Heard the counsel for the parties.
Judgment reserved.
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2018 (2) TMI 2062 - ITAT MUMBAI
Exemption u/s 11 - Carry forward of deficit and allowing set off against the income of subsequent years - Assessee is a registered trust under section 12A of the Act and also registered with charity commissioner Mumbai - HELD THAT:- We find that this issue is squarely covered by the decision of Hon’ble Bombay High Court in the case of Institute of Banking Personnel [2003 (7) TMI 52 - BOMBAY HIGH COURT] and Revenue’s main grievance is that the department has not accepted the Judgement of Hon’ble Bombay High Court and want to keep the issue alive, the order of CIT(A) is challenged. We find that the Revenue is clearly accepting that the order of CIT(A) is covered by the decision of Hon’ble Bombay High Court and respectively following the same, we confirm the order of CIT(A) and dismiss this appeal of Revenue.
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2018 (2) TMI 2061 - SUPREME COURT
Dishonor of Cheque - fair opportunity to defend provided or not - misconduct within the purview of the Conduct Regulations applicable to bank employees - HELD THAT:- An employee is entitled to subsistence allowance during an inquiry pending against him or her but if that employee is starved of finances by zero payment, it would be unreasonable to expect the employee to meaningfully participate in a departmental inquiry. Access to justice is a valuable right available to every person, even to a criminal, and indeed free legal representation is provided even to a criminal. In the case of a departmental inquiry, the delinquent is at best guilty of a misconduct but that is no ground to deny access to pension (wherever applicable) or subsistence allowance (wherever applicable). As far as Shukla is concerned he was denied his pension as well as subsistence allowance which prevented him from effectively participating in the disciplinary inquiry. On this ground as well, the proceedings against Shukla are vitiated.
There are no hesitation in dismissing the appeal filed by the Bank also on the ground that the punishment of dismissal could not have been imposed on Shukla after his superannuation.
Appeal dismissed.
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2018 (2) TMI 2060 - BOMBAY HIGH COURT
Auction by the Revenue of the attached properties for non-payment of tax - HELD THAT:- We accept the undertaking given by the petitioners to this Court that they will pay the costs and charges incurred by the respondents for scheduling the auction on or before 5th March, 2018 subject to the respondents informing the petitioners of the costs by 1st March, 2018.
In view of the above, Mr. Thakkar, does not press this petition and seeks to withdraw. Therefore, we have not examined the merits of the petition or the respondents objections to it.
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2018 (2) TMI 2059 - ITAT DELHI
TP Adjustment - depreciation on fixed assets purchased from AE - HELD THAT:- As relates to the depreciation on fixed assets the same is covered by the assessee’s own order for Assessment Year 2009-10 to order deletion of addition made by disallowing or reducing the amount of depreciation on the assets purchased from AE.
Addition of receivables - The issue covered in favour of the assessee by the decision of the Hon’ble Delhi High Court in case of Kusum Health Care [2017 (4) TMI 1254 - DELHI HIGH COURT].
Salary of employee and disallowance of TDS and sales promotion expenses the same need to be verified by the Assessing Officer as there is additional evidence filed by the Assessee at this stage. The said additional evidence needs to be taken into account while making observation by the Assessing Officer. Therefore, this issue is remanded back to the file of the Assessing Officer.
Appeal of the assessee is partly allowed for statistical purpose.
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2018 (2) TMI 2058 - MADRAS HIGH COURT
Infringement of principles of natural justice - petitioner submitted a letter seeking grant of further time - HELD THAT:- Without formally considering the said request for grant of further time, the respondent chose to pass the final order. The final orders are vitiated for not having afforded due opportunity to the petitioner. Since the final orders have clearly infringed the principles of natural justice, this Court is inclined to quash the same. The matters are however remitted to the file of the respondent with liberty to pass fresh orders after affording due opportunity to the petitioner.
These writ petitions stand allowed.
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2018 (2) TMI 2057 - JAMMU AND KASHMIR HIGH COURT
Dishonor of Cheque - insufficiency of money - sufficient cause for not being convicted or not - cooling off period - Section 138 of Negotiable Instrument Act - HELD THAT:- It is clear that the petitioner has now no cause, what to speak of sufficient cause for not being convicted. The Magistrate has rightly convicted him. When the mandate of law and the procedure prescribed has been strictly followed i.e. Chapter XX of Cr.P.C. has been followed, there could be no requirement of following Section 17 of the Evidence Act. The argument advanced is accordingly repelled.
The provision of Negotiable Instrument Act has an object of controlling and discouraging the cheque bouncing. Conviction or sentence is only resorted to when the accused fails to pay the borrowed amount. Scheme of the Act is such which provides that when a cheque is bounced, notice of demand shall be issued. Then a cooling off period of one month for filing the complaint has been prescribed, so that the amount is paid. Commission of other crimes is different to the crime covered by the Negotiable Instrument Act.
Award of compensation - permissible under Section 138 of N.I. Act or not - HELD THAT:- Learned Appellate Court while dealing with the contention has noticed that in view of conferment of special power and the jurisdiction of the Judicial Magistrate 1st Class, the ceiling as to the amount of fine stipulated in the Criminal Procedure Code has been removed and, as such, Magistrate can impose sentence or fine under Section 138 N.I. Act beyond ₹ 5000/, which opinion is based on the judgment rendered by the Hon'ble Apex Court titled R. VIJAYAN VERSUS BABY [2012 (6) TMI 519 - SUPREME COURT] where it was held that Even where the offence is not compounded, the courts tend to direct payment of compensation equal to the cheque amount (or even something more towards interest) by levying a fine commensurate with the cheque amount. A stage has reached when most of the complainants, in particular the financing institutions (particularly private financiers) view the proceedings under section 138 of the Act, as a proceeding for the recovery of the cheque amount, the punishment of the drawer of the cheque for the offence of dishonour, becoming secondary.
The conclusions drawn by learned Additional Sessions, Anantnag, in maintaining the sentence and then modifying the order of fine enhancing it to ₹ 7,00,000/- is perfectly justified and in-keeping with the position of law, therefore, no interference is warranted - petition dismissed.
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2018 (2) TMI 2056 - PUNJAB AND HARYANA HIGH COURT
Seeking permission to proceed abroad - Section 482 of Cr.P.C. - HELD THAT:- Prayer of the petitioner to visit Canada up to 28.04.2018 would be construed as a genuine prayer and merits consideration. However, at the same time, stringent conditions are required to be imposed to ensure that even in the eventuality of the prayer of the petitioner being accepted, he rejoins the trial proceedings.
The prayer of the petitioner seeking permission to proceed to Canada is accepted to the extent of according permission to proceed abroad up to 28.04.2018 - petitioner shall execute a personal bond and a surety in the sum of ₹ 50 lacs each to the satisfaction of the trial Court, with an undertaking to appear immediately after the expiry of the period that he has been permitted to travel abroad i.e. after 28.04.2018.
Petition disposed off.
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