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2013 (1) TMI 966
Quashing of FIR filled under sec 482 of crpc-Prevention of Corruption Act, 1988-CBI Manual 2005 - The Appellant registered a case against the Respondent (Revenue officer) U/s 120B read with Sections 420, 467, 468 and 471, Indian Penal Code, read with Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. The Respondent had challenged the said FIR registered against him and sought for quashing of the same. - HC quashed the FIR.
HELD THAT Not complying with the mandatory procedure Under Section 154 does not vitiate the registration of FIR the clarification made by this Court regarding the provisions of Section 154, 156 and 157, Code of Criminal Procedure in the case of State of U.P. v. Bhagwant Kishore Joshi [1963 (4) TMI 74 - SUPREME COURT] upon which rightly placed reliance in justification of the procedure followed by CBI regarding the registration of FIR the same is traceable to the procedure laid down in the Crime Manual 2005, which has been prepared by the CBI for registration of cases under the Delhi Special Police Establishment Act.
Therefore, non compliance of the mandatory provisions Under Section 154, Code of Criminal Procedure if the case is registered on the basis of the information received suo-motu after specifying that the information reveals prima facie cognizable offence against the Respondent herein and found that the matter is fit for investigation to be taken by the Appellant herein, in not following the provisions of Section 154 does not vitiate the registration of FIR and further proceedings in the matter of registration. further there is no need for this Court to await the larger Bench decision on the issue in the case in Lalita Kumari v. State of U.P. 2013 (11) TMI 1520 - SUPREME COURT.
Accordingly, the appeal is allowed, the impugned order is hereby set aside. It is open for the CBI to proceed further in the matter to conduct investigation and proceed in accordance with law against the Respondent.
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2013 (1) TMI 965
Issues Involved:
1. Restriction of addition on account of undisclosed bank account.
2. Consideration of opening balance in the financial year relevant to assessment year 2000-01.
3. Validity of proceedings u/s 147.
4. Addition of unexplained deposits in the bank account.
5. Rejection of application under Rule 46A of Income Tax Rules, 1961.
6. Levy of interest u/s 234B and 234C of the Act.
Summary:
Issue 1: Restriction of Addition on Account of Undisclosed Bank Account
The Revenue contended that the Ld. Commissioner of Income Tax (A) erred in restricting the addition of Rs. 22,78,823/- made on account of an undisclosed bank account to Rs. 10,54,214/-. The Tribunal noted that both the Assessing Officer and Ld. Commissioner of Income Tax (A) partially relied on the figures provided by the assessee, which is inconsistent with the doctrine of approbate and reprobate. The Tribunal remitted the matter back to the Assessing Officer for fresh consideration in light of additional evidence and submissions by the assessee.
Issue 2: Consideration of Opening Balance in the Financial Year Relevant to Assessment Year 2000-01
The Revenue also argued that the Ld. Commissioner of Income Tax (A) erred in directing the Assessing Officer to consider the opening balance of Rs. 1,77,718/- in the financial year relevant to assessment year 2000-01. The Tribunal upheld this direction, instructing the Assessing Officer to take appropriate action for the relevant financial year.
Issue 3: Validity of Proceedings u/s 147
The assessee challenged the initiation of proceedings u/s 147, claiming it was without satisfying preconditions in the Act. However, during the hearing, the assessee's counsel did not press this ground, leading to its dismissal by the Tribunal.
Issue 4: Addition of Unexplained Deposits in the Bank Account
The assessee contended that the Ld. Commissioner of Income Tax (A) erred in making an addition of Rs. 10,54,214/- representing alleged unexplained deposits. The Tribunal found that the assessee failed to provide cogent evidence regarding the purchases and sales claimed. The matter was remitted back to the Assessing Officer for fresh consideration with adequate opportunity for the assessee to present evidence.
Issue 5: Rejection of Application under Rule 46A of Income Tax Rules, 1961
The assessee argued that the Ld. Commissioner of Income Tax (A) erred in rejecting the application under Rule 46A without appreciating that the assessee was prevented by sufficient cause from furnishing evidence during assessment proceedings. The Tribunal noted that the Ld. Commissioner of Income Tax (A) rejected additional evidence and remitted the matter back to the Assessing Officer for fresh consideration.
Issue 6: Levy of Interest u/s 234B and 234C of the Act
The assessee contended that the Ld. Commissioner of Income Tax (A) erred in upholding the levy of interest u/s 234B and 234C. The Tribunal did not specifically address this issue in the summary but remitted the matter back to the Assessing Officer for fresh consideration.
Conclusion:
The Tribunal allowed both the Revenue's and the assessee's appeals for statistical purposes, remitting the matter back to the Assessing Officer for fresh consideration with adequate opportunity for the assessee to present additional evidence and submissions.
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2013 (1) TMI 964
Issues involved: Appeal against CIT(A) order regarding inclusion of expenditure in WIP and treatment of software expenses as capital in nature, and treatment of interest income as income from other sources.
Expenditure in WIP and software expenses: The assessee, engaged in construction business, declared Nil income but was assessed at &8377;1,20,910. The AO disallowed &8377;93,68,007 expenses, including &8377;6,00,355 software expenses, as they were not related to the ongoing project. CIT(A) upheld AO's decision. However, ITAT found that multiple projects were in the pipeline, and expenses related to development of industrial park property were carried forward under WIP. ITAT directed AO to reexamine the issue considering the business activities and nature of software expenses.
Interest income treatment: The AO treated interest income of &8377;1,20,912 as income from other sources, earned on FDR. CIT(A) affirmed this decision. ITAT observed that netting of interest paid and earned was not considered, and there was no independent source of interest income. ITAT ordered reexamination of this issue, suggesting it may be related to WIP.
Conclusion: Ground No.5 was not pressed, and the appeal was allowed in part for statistical purposes. The ITAT directed the AO to reevaluate both issues, emphasizing the need to consider the business activities and nature of expenses.
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2013 (1) TMI 963
Issues involved: Appeal against the order of CIT (A) for the assessment year 2006-07 regarding disallowances u/s 14A and non-deduction of TDS.
Issue 1 - Disallowance u/s 14A:
The appellant, engaged in share trading & mutual fund distribution, declared total income of Rs. 12,98,780. The AO disallowed Rs. 2,17,981 u/s 14A and Rs. 8,50,000 u/s 40(a)(ia), adding them to the total income. CIT (A) partly allowed the appeal, directing the AO to recompute the disallowance based on a reasonable basis per the Bombay High Court's judgment in M/s Godrej Boyce & Mfg Co. The Tribunal upheld this decision, dismissing the appeal.
Issue 2 - Non-deduction of TDS:
Regarding the addition of Rs. 8,50,000 for non-deduction of TDS on sub-brokerage paid, CIT (A) granted relief to the assessee based on the explanation to section 194H. The Tribunal found that the sub-brokerage paid was for services related to buying and selling units of Mutual Funds, falling outside the scope of TDS as per section 194H. The Tribunal noted that the issue was covered by a previous decision and ruled in favor of the assessee, dismissing the Revenue's appeal.
In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the CIT (A)'s decisions on both issues.
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2013 (1) TMI 962
Issues involved: Appeal against the order of the Commissioner of Income-tax (Appeals) regarding the assessment year 2009-2010.
Grounds raised by Revenue:
1. The CIT(A) order is erroneous in law and on facts.
2. CIT(A) erred in holding book profit u/s. 115JB as NIL, resulting in no tax payable u/s. 115JB.
3. CIT(A) should have considered lack of evidence regarding the assessee's status as a sick industrial company.
4. CIT(A) erred in allowing additional evidence under Rule 46A of I.T. Rules.
5. CIT(A) did not provide an opportunity to the Assessing Officer to respond to the applicant's submissions.
Judgment Details:
The Assessing Officer processed the assessee's return under S.143(1) of the Income-tax Act, determining deemed income under S.115JB at Rs. 69,19,580. The CIT(A) found the issues dealt with by the Assessing Officer to be debatable and not suitable for S.143(1) processing. Referring to S.115JB(2) and Explanation (1) to S.115JB(2), the CIT(A) noted the assessee's status as a sick company with negative net worth, thus excluding the applicability of S.115JB. The appeal of the assessee was allowed based on this observation. The Tribunal upheld the CIT(A)'s decision, stating that the Assessing Officer cannot address debatable issues under S.143(1) and rejected the Revenue's grounds. Consequently, the Revenue's appeal was dismissed.
Decision:
The Tribunal upheld the CIT(A)'s decision, rejecting the Revenue's grounds and dismissing the appeal.
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2013 (1) TMI 960
Issues involved: Appeal against order of CIT(A) u/s 271(1)(c) of the I.T. Act, 1961 for assessment year 2008-09.
Summary:
Issue 1: Claiming deduction under wrong provision of law
The assessee sold an industrial plot and claimed deduction u/s 54 instead of u/s 54F due to advice from the Chartered Accountant. The Assessing Officer imposed a penalty u/s 271(1)(c) for furnishing inaccurate particulars of income. The AR argued that the assessee acted in good faith based on CA's advice and the penalty was unjustified.
Issue 2: Bonafide mistake in claiming deduction
The AR contended that the failure to deposit the total amount in the Capital Gains Scheme was not intentional and did not warrant a penalty u/s 271(1)(c). The Revenue supported the CIT(A)'s order citing non-compliance with the Act.
The Tribunal found that the assessee intended to invest in a residential property but deposited an amount equivalent to long term capital gains instead of the total sale consideration as required u/s 54F. Despite the error, the Tribunal held that the assessee acted in good faith and disclosed all income particulars. The penalty u/s 271(1)(c) was deemed unwarranted under section 273B of the Act. Consequently, the penalty was directed to be deleted, and the appeal was allowed.
The appeal of the assessee was allowed, and the penalty u/s 271(1)(c) was directed to be deleted.
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2013 (1) TMI 959
The Central Information Commission ordered the supply of requested documents to the appellant within 4 weeks on payment of requisite fee. The Managing Director was directed to pay compensation of Rs. 800 to the appellant within 4 weeks for the inconvenience caused.
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2013 (1) TMI 957
Issues Involved:
1. Valuation of goods under export.
2. Imposition of penalties on various individuals and entities.
3. Role and responsibility of Central Excise officers and CHA in the fraudulent export attempt.
Summary:
1. Valuation of Goods under Export:
The appellants contended that the valuation of the goods should have been determined as per the Customs Valuation Rules, 1988, and not based on a market survey. However, the Tribunal found that the market survey was conducted for 3,300 pieces, and the value for the remaining 29,700 pieces was based on the National Import Data Bank. The appellants had accepted these valuations. The Tribunal held that the valuation method was appropriate, especially since the DEPB credit entitlement is capped by the present market value (PMV) of the goods. Thus, the contention regarding improper valuation was dismissed.
2. Imposition of Penalties:
The penalties imposed were considered excessive relative to the value of the goods and the DEPB credit involved. The Tribunal reduced the penalties as follows:
- Shri Rakesh Naik: Penalty reduced from Rs. 14 lakhs to Rs. 2,42,742/-.
- Shri Anil Arya: Penalty reduced from Rs. 14 lakhs to Rs. 2,42,742/-.
- Shri P.K. Sharma: Penalty reduced from Rs. 5 lakhs to Rs. 50,000/-.
- Shri R.A. Zaidi, Inspector: Penalty reduced from Rs. 50,000/- to Rs. 10,000/-.
- Shri M.S. Jeph, Superintendent: Penalty reduced from Rs. 50,000/- to Rs. 10,000/-.
- M/s. Shubham Impex: Penalty on the firm was set aside.
- Shri Sanjay Agarwal, CHA: Penalty of Rs. 1 lakh was set aside as there was no evidence of his involvement in the fraudulent transaction.
3. Role and Responsibility of Central Excise Officers and CHA:
The Tribunal found that the Central Excise officers did not follow proper examination procedures, indicating active collusion rather than mere negligence. The CHA, Shri Sanjay Agarwal, was not present during the examination and performed his duties based on the documents provided by the exporter. Therefore, no penalty was imposed on him.
Conclusion:
The Tribunal upheld the valuation of the goods at Rs. 2,42,742/-, the confiscation under Section 113(d) and 113(i) of the Customs Act, and the imposition of redemption fine. Penalties on individuals were significantly reduced, and the penalty on the CHA was set aside. The appeals were disposed of accordingly.
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2013 (1) TMI 956
Issues involved: Interpretation of deposit requirement u/s 34 of Arbitration and Conciliation Act, 1996 in relation to awards made by Industry Facilitation Council under repealed 1993 Act and subsequent Micro, Small and Medium Enterprises Development Act, 2006.
Summary:
1. The petitioner challenged an order directing deposit of awarded amount for setting aside an award made under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertaking Act, 1993. The respondent claimed ` 7,49,598 and interest, leading to the award. Petitioner objected to the deposit condition imposed by the District Judge for setting aside the award under Section 34 of the Arbitration and Conciliation Act, 1996.
2. The dispute was referred under Section 6(2) of the 1993 Act to the Industry Facilitation Council for arbitration, resulting in the award. The petitioner sought to set aside the award, contesting the deposit requirement. The 1993 Act was repealed by the Micro, Small and Medium Enterprises Development Act, 2006, which mandated depositing 75% of the awarded amount for setting aside a decree or award made by the Council.
3. The petitioner argued that Section 34 of the 1996 Act does not mandate any deposit for maintaining an application to set aside an award. However, a conjoint reading of the provisions of the 1996 Act, the repealed 1993 Act, and the subsequent 2006 Act clarifies that depositing 75% of the awarded amount is a prerequisite for entertaining an application to set aside an award by the Industry Facilitation Council.
4. The Court dismissed the writ petition, upholding the requirement of depositing 75% of the decreed amount by the petitioner as a condition for the court to proceed with the decision on the application to set aside the award. The deposit condition is deemed necessary in addition to the procedures outlined in Section 34 of the Arbitration and Conciliation Act, 1996.
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2013 (1) TMI 955
Revision u/s 263 - addition u/s 14A - Held that:- We note that one of the ingredient to exercise jurisdiction under Section 263 of the Act is not satisfied viz. prejudice to the revenue. As pointed out by the Tribunal the respondent is being assessed to tax on book profits under Section 115JB of the Act and even if the dis-allowance is higher than that allowed by Assessing officer under Section 14A of the Act would not have any effect on the book profits on which the tax is payable. Thus the entire exercise is academic.
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2013 (1) TMI 954
Issues involved: The main grievance of the petitioners is the issuance of process without following the High Court's order in a writ petition. The challenge is against the order of the learned trial Magistrate for the offence u/s 138 of the Negotiable Instruments Act.
Judgment Details:
Issue 1: Compliance with High Court's Order
The High Court had directed the learned trial Magistrate to hold an inquiry u/s 202 of the Code of Criminal Procedure. The Magistrate, after the High Court's order, recorded the complainant's statement and issued a fresh process against the petitioners for the offence u/s 138 of the Negotiable Instruments Act. The petitioner contended that the Magistrate did not comply with the High Court's order.
Issue 2: Scope of Inquiry in Section 138 Cases
The respondent argued that in cases u/s 138 of the Negotiable Instruments Act, there is limited scope for inquiry as the case is mainly based on documents. The Magistrate, in compliance with the High Court's order, recorded the complainant's statement and issued a fresh process.
Issue 3: Duty of the Trial Magistrate
The High Court emphasized that while the trial Magistrate has limited scope for detailed inquiry in Section 138 cases, they should not ignore the High Court's order. The Magistrate should have examined the allegations in the complaint to determine if further inquiry was necessary before issuing the process.
Precedent and Direction
The High Court referred to previous judgments regarding the nature of inquiries u/s 202(1) of the Code of Criminal Procedure. Even though such inquiries are considered directory, the trial Magistrate was obligated to follow the High Court's directions. The High Court set aside the Magistrate's order and directed a limited inquiry to decide on issuing the process.
Conclusion
The High Court quashed the order of the learned Magistrate and directed a brief inquiry to determine if a process should be issued. The Magistrate was instructed to decide on issuing the process against all the petitioners after the inquiry. The petition was disposed of accordingly, and the complainant was to appear before the trial Magistrate on a specified date.
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2013 (1) TMI 953
Issues involved: Appeal against ITAT judgment regarding addition of income as labour income, treatment of income earned from undisclosed sources, and allowance of interest expenditure as business expenditure.
Issue A - Addition of labour income: The Tribunal relied on its own order and dismissed Revenue's appeal. The Division Bench observed that the assessee had been in the stone crushing business for over 30 years, providing machinery for labour work. The Tribunal found that the assessee was exploiting land and machinery for business purposes, making it a business income rather than income from undisclosed sources. The Tribunal noted the commercial exploitation of assets and the long-standing nature of the business, concluding that the income derived from labour was indeed business income.
Issue B - Treatment of income from undisclosed sources: The Assessing Officer had credited a significant amount as labour income, which the assessee failed to establish as genuine. The AO treated this amount as income from undisclosed sources under section 68 of the Act. However, the Tribunal found that the assessee had already disclosed this amount as business income for the year, thus section 68 did not apply. The Tribunal concluded that the labour income was derived from commercial asset exploitation and was therefore business income, not income from undisclosed sources.
Issue C - Allowance of interest expenditure: The AO disallowed interest expenditure, claiming it was not paid to the bank and therefore not allowable under section 43B of the Act. The Tribunal, having determined the income as business income and not from undisclosed sources, deleted the addition of interest expenditure. However, a portion of the interest amount was confirmed as not paid to the bank. The Tribunal's decision on interest expenditure was a corollary to its conclusion on the nature of income, and did not give rise to a separate question of law. The Tax Appeal was ultimately dismissed based on these findings.
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2013 (1) TMI 952
Issues involved: Settlement agreement between parties, payment terms, protection of appellant's interests, potential contempt of court action.
The High Court of Delhi, in a case involving a settlement agreement, upheld the impugned order which required the appellant to pay a sum of `45.50 crores along with interest in installments over a specified period. The appellant raised concerns regarding potential consequences for defaulting on payments, but the Court noted that the appellant's interests were protected by certain conditions, including non-disclosure of the order in the media. The Court declined to interfere with the order, stating that any requests for clarification or modification could be addressed to the Company Court. The appeal was disposed of without issuing any notice, and pending applications were also disposed of.
In summary, the judgment focused on the enforcement of a settlement agreement, payment terms, protection of appellant's interests, and the procedure for seeking clarification or modification of the order. The Court emphasized the importance of adhering to the terms agreed upon by the parties and provided a pathway for addressing any concerns or requests for changes through the appropriate legal channels.
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2013 (1) TMI 951
Issues Involved:
1. Substitution of the sole arbitrator u/s 11 and 15(2) of the Arbitration & Conciliation Act, 1996.
2. Validity of unilateral appointment of arbitrator by respondent under clause 21 of the agreement.
3. Applicability of section 15(2) of the Arbitration Act, 1996 for the appointment of a substitute arbitrator.
Summary:
1. Substitution of the sole arbitrator u/s 11 and 15(2) of the Arbitration & Conciliation Act, 1996:
The applicants sought an order to substitute the sole arbitrator, Dr. Birendra Saraf, who had withdrawn from his office. The court noted that the appointment of Dr. Birendra Saraf was made by consent of both parties in a Company Petition and not u/s 11 of the Arbitration Act. The court held that the appointment of a substitute arbitrator must be done according to the rules applicable to the original arbitrator's appointment, as per section 15(2) of the Act.
2. Validity of unilateral appointment of arbitrator by respondent under clause 21 of the agreement:
The respondent argued that clause 21 of the agreement gave them the exclusive right to appoint a sole arbitrator. The court agreed, stating that the right to appoint an arbitrator under clause 21 was not waived or given up merely because Dr. Birendra Saraf was appointed by consent in the Company Petition. The respondent's appointment of Justice A.D. Mane as the substitute arbitrator was therefore valid.
3. Applicability of section 15(2) of the Arbitration Act, 1996 for the appointment of a substitute arbitrator:
The court emphasized that section 15(2) requires the appointment of a substitute arbitrator to be done according to the original agreement or applicable provisions. The court found that the respondent had not failed to perform their function under the agreed procedure, and thus, the application u/s 11(6) was not maintainable. The court concluded that no cause of action had arisen to seek the appointment of an arbitrator from the court under section 11(6).
Conclusion:
The court rejected the application for the appointment of a substitute arbitrator u/s 11(6) of the Arbitration & Conciliation Act, 1996, and upheld the respondent's right to appoint the arbitrator as per the agreement.
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2013 (1) TMI 950
Issues involved:
1. Validity of assessment of deemed dividend u/s. 2(22)(e) of the Act.
2. Disallowance of ESI claim.
Validity of assessment of deemed dividend u/s. 2(22)(e) of the Act:
The assessee, a partnership firm, received an advance from a closely held company. The Assessing Officer assessed a portion of the advance as deemed dividend u/s. 2(22)(e) of the Act due to the shareholding pattern of the partners in the lending company. The appeal challenged this assessment. The Mumbai Special Bench precedent was cited, stating that deemed dividend should be assessed in the hands of the shareholders only. As the partners of the assessee-firm held shares in the lending company, it was held that the deemed dividend cannot be assessed in the hands of the firm. The order of the Ld. CIT(A) was set aside, directing the Assessing Officer to delete the assessment u/s. 2(22)(e) in the firm's hands.
Disallowance of ESI claim:
The Assessing Officer disallowed the ESI contributions claim made by the assessee, as the payments were made beyond the due date prescribed under the ESI Act. The Ld. CIT(A) upheld this disallowance. The assessee contended that the ESI amounts were paid before the due date for filing the return of income, but failed to provide specific payment dates. Citing relevant legal precedents, it was decided to have the issue reexamined by the Assessing Officer. The order of the Ld. CIT(A) was set aside, and the matter was restored back to the Assessing Officer for fresh examination in line with the legal decisions referenced. The appeal by the assessee was treated as allowed for statistical purposes.
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2013 (1) TMI 949
Issues involved: Application u/s.254(2) of the Act to recall ITAT order due to non-appearance of assessee.
Summary:
- The assessee filed a miscellaneous application u/s.254(2) of the Act to recall the ITAT order dated 12th March, 2012 in I.T.A. No.3861/M/2011 for assessment year 2007-08, citing non-appearance before the Tribunal on the hearing date.
- Despite the absence of the assessee during the hearing, the Tribunal proceeded to decide the miscellaneous application ex parte after hearing the ld D.R.
- The assessee contended in the petition that the notice of hearing was not received, and the appeal was filed through counsel who failed to appear or inform the assessee about the hearing date.
- The Tribunal, after considering the application and submissions of the ld D.R., acknowledged that the non-appearance was due to a reasonable cause. Consequently, the Tribunal recalled the order dated 12.3.2012 in the interest of justice and directed the Registry to fix the appeal for hearing on merits before the 'D' Bench.
- The miscellaneous application filed by the assessee was allowed, and the decision was pronounced in the open court on 11th January, 2013.
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2013 (1) TMI 948
Issues involved: Appeal against order u/s 143(3) r.w.s. 144C(13) for A.Y. 2007-08.
Levy of mark-up on reimbursement of cost:
The appellant contended that a similar issue was raised in a previous year, where the Tribunal directed the matter to be decided based on the agreed mark-up between the assessee and its Associated Enterprises (AEs). The Tribunal set aside the impugned order and remitted the matter to the AO/TPO for decision in accordance with the earlier year's directions.
Levy of interest on delay in receipt of reimbursement:
The TPO proposed an adjustment of &8377; 1,35,885 towards interest on delay in receipt of expenses from AEs. The appellant argued that the delay computation was incorrect as it did not consider the agreed credit period. The matter was remitted to the AO/TPO for restricting the adjustment to the period beyond the agreed credit period.
Tax relief u/s Sec. 90 not allowed:
The appellant claimed double taxation credit under section 90, mistakenly classified as "Advance tax" in the return. The AO rejected the claim citing the need for a revised return. The Tribunal directed the AO to examine and allow the claim after providing a reasonable opportunity to the assessee.
Short credit of tax allowed:
The appellant challenged the credit of &8377; 1,79,44,144 instead of the claimed &8377; 1,96,04,867 without reason or opportunity. The AO was directed to re-examine and decide on the credit amount after providing a reasonable opportunity to the assessee.
Charging of interest u/s 234B and 234C:
The issue of charging interest u/s 234B and 234C was deemed consequential.
In conclusion, the appeal was partly allowed for statistical purposes, with the Tribunal directing specific actions on each issue for further consideration and decision by the AO/TPO.
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2013 (1) TMI 947
Issues Involved:
1. Maintainability of the Review Petition under the Arbitration and Conciliation Act, 1996.
Summary:
1. Maintainability of the Review Petition:
The petitioner sought to recall the order and judgment dated 18th July, 2008, rejecting the appeal filed u/s 37 of the Arbitration and Conciliation Act, 1996. The learned counsel for the respondents raised a preliminary objection regarding the maintainability of the review petition, arguing that u/s 5 of the Arbitration and Conciliation Act, 1996, judicial intervention is limited to what is expressly provided in Part I of the Act. The respondents relied on the judgment in M/s. Thanikkudam Bhagwati Mills vs. Mrs. Reena Ravindra Khona, which held that there is no inherent power of review vested in any court unless expressly provided by statute.
The petitioner argued that the Division Bench in the case of M/s. Thanikkudam Bhagwati Mills vs. Mrs. Reena Ravindra Khona had kept the issue of maintainability of the review petition open, and thus the judgment of the Learned Single Judge was not binding. However, the court found no substance in this argument, stating that the Division Bench had not set aside the judgment of the Learned Single Judge, making it binding.
The petitioner also cited the judgment in Shyam Sunder Agarwal & Co. vs. Union of India, which dealt with the revisional jurisdiction of the High Court under the Arbitration Act, 1940. The court found this judgment inapplicable as it did not address the maintainability of a review petition under the Arbitration and Conciliation Act, 1996.
Further, the petitioner referred to the Supreme Court judgment in ITI Ltd. vs. Siemens Public Communications Network Ltd., which discussed the applicability of the Code of Civil Procedure (CPC) in the context of revisions. However, the court noted that this judgment did not address the issue of review petitions under the Arbitration and Conciliation Act, 1996.
The court also referenced the Supreme Court judgment in Kalabharati Advertising vs. Hemant Vilalnath Narichania, which stated that in the absence of an express provision granting the power of review, such a power cannot be assumed.
Conclusion:
The court concluded that the Arbitration and Conciliation Act, 1996, is a self-contained code that does not provide for the remedy of review. Therefore, the review petition was dismissed as not maintainable, and any order passed in such a review would be ultra vires and without jurisdiction. The review petition was dismissed with no order as to costs.
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2013 (1) TMI 946
Issues involved: Application under Order 39 Rules 1 and 2 CPC by plaintiff (I.A. 8586/2008) and application under Order 39 Rule 4 CPC by defendants (I.A. 9068/2008) in CS(OS) 1392/2008.
In CS(OS) 1392/2008, an Agreement was executed between the parties on 15th May, 2009, stating that if interim applications I.A. Nos. 8586 of 2008 and 9068 of 2008 are decided in favor of HT, IPRS shall return the amounts received. The Court passed an interim order on 28.07.2008, which was modified on 15.05.2009 based on the agreement between the parties. The interim order was to continue until the decision of the applications relating to interim relief. Subsequently, on 8th March, 2011, it was noted that the plaintiff is not entitled to an injunction as prayed for in suits CS(OS) No. 1185/2006 and CS(OS) No. 1996/2009. Plaintiff's application I.A. 8586/2008 was dismissed. However, since the Division Bench's judgment was challenged before the Supreme Court, the plaintiff was granted liberty to file a fresh application if the Supreme Court ruled in their favor. Defendant's application I.A. 9068/2008 was dismissed as infructuous. Another application, I.A. 12102/2011 in CS(OS) 1392/2008, was also dismissed as infructuous based on previous court orders. The case was listed for consideration of pending applications on 25th April, 2013.
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2013 (1) TMI 945
Issues Involved:
1. Validity of initiation of reassessment proceedings u/s 148 of the Income Tax Act, 1961.
2. Disallowance of depreciation on leased machinery.
Summary:
1. Validity of initiation of reassessment proceedings u/s 148 of the Income Tax Act, 1961:
The assessee challenged the initiation of reassessment proceedings u/s 148, arguing that the reasons recorded by the Assessing Officer (AO) did not mention any failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. The AO had issued a notice u/s 148 based on a survey conducted u/s 133A at Bellary Steels & Alloys Ltd. (BSAL), which revealed that BSAL had entered into bogus lease transactions. The AO concluded that the lease transaction was fictitious and issued the notice on 17.03.2003, beyond the four-year period from the end of the relevant assessment year.
The CIT(A) upheld the AO's decision, relying on the Supreme Court's decision in Phool Chand Bajrang v. ITO and other cases, stating that new information obtained from the survey justified the reopening of the assessment. However, the Tribunal referred to the decisions of the Bombay High Court in Hindustan Lever Ltd. v. R.B. Wadkar and the Karnataka High Court in CIT and ACIT v. Hewlett Packard Digital Global Solutions Ltd., which emphasized that the reasons recorded must explicitly state the failure of the assessee to disclose fully and truly all material facts.
The Tribunal concluded that the AO did not record any such failure in the reasons for reopening the assessment, making the initiation of reassessment proceedings invalid. Consequently, the reassessment order was annulled.
2. Disallowance of depreciation on leased machinery:
Given the decision on the validity of the initiation of reassessment proceedings, the Tribunal did not consider the merits of the disallowance of depreciation on leased machinery. The appeal of the assessee was allowed, and the reassessment order was annulled.
Conclusion:
The appeal of the assessee was allowed, and the reassessment order was annulled due to the invalid initiation of reassessment proceedings u/s 148, as the AO failed to record the necessary failure on the part of the assessee to disclose fully and truly all material facts.
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9911796707
