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Showing 61 to 80 of 934 Records

• 2013 (2) TMI 887
  
  Issues Involved:
  1. Existence of a Prima Facie Case for FIR Registration
  2. Validity of Entertaining a Second FIR
  
  Summary:
  
  1. Existence of a Prima Facie Case for FIR Registration:
  The appellants invoked the jurisdiction u/s 226 of the Constitution to quash FIR No. 442 of 2012 on the grounds that no prima facie case existed. The High Court opined that a prima facie case was disclosed and issued directions for surrender and interim bail based on precedents set by the Full Bench of the Allahabad High Court in *Amrawati and Anr. v. State of UP* and *Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and Ors.*
  
  2. Validity of Entertaining a Second FIR:
  The appellants contended that a second FIR could not be lodged for the same cause of action and incident, citing *T.T. Antony v. State of Kerala and Ors.*, *Pandurang Chandrakant Mhatre and Ors. v. State of Maharashtra*, and *Babubhai v. State of Gujarat and Ors.* The respondents argued that there is no absolute prohibition in law for lodging a second FIR when allegations are made from different perspectives or by different persons, referencing *Ram Lal Narang v. State (Delhi Administration)* and *Upkar Singh v. Ved Prakash and Ors.*
  
  The Supreme Court examined the principles laid down in various judgments, noting that the concept of "sameness" does not encompass filing a counter FIR relating to the same or connected cognizable offence. The Court highlighted that rival versions in respect of the same incident can take different shapes, and in such events, the lodgment of two FIRs is permissible.
  
  In the present case, the Court found that the allegations in the FIRs were distinct and involved different accused persons. The second FIR was registered based on a direction issued by the Magistrate u/s 156(3) of the Code, and it could be regarded as a counter complaint. The Court concluded that the principle of sameness did not apply, and quashing the FIRs would deprive the complainants of justice. Therefore, the submission that the FIR lodged by the fourth respondent was a second FIR and liable to be quashed was not accepted.
  
  Conclusion:
  The appeal was dismissed, affirming that the second FIR was valid and distinct from the first, and the investigation should proceed.

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• 2013 (2) TMI 886
  
  The Delhi High Court's judgment in 2013 (2) TMI 886 states that the appeal has been admitted and the question of law has been formulated. The case will be listed in due course. Justices Badar Durrez Ahmed and R.V. Easwar were presiding over the case. The Respondent was represented by Mr. Ajay Vohra, Ms. Kavita Jha, and Mr. Amit Sachdeva.

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• 2013 (2) TMI 885
  
  Issues Involved:
  1. Maintainability of the second appeal against the order dated 9.10.2002.
  2. Maintainability of the appeal against the order dated 3.11.2006 dismissing the review application.
  
  Summary:
  
  1. Maintainability of the Second Appeal Against the Order Dated 9.10.2002:

  The first issue addressed was whether a second appeal challenging the order dated 9.10.2002 is maintainable after the earlier appeal was withdrawn without permission to file a fresh appeal. The court noted that the appellants did not seek permission to file a fresh appeal when they withdrew the earlier appeal on 10.1.2003. According to Order 23 Rule 1 of the Civil Procedure Code, if a plaintiff withdraws a suit without the court's permission, they are precluded from instituting any fresh suit on the same subject matter. This principle applies equally to appeals. Therefore, the second appeal challenging the order dated 9.10.2002 is not maintainable.

  2. Maintainability of the Appeal Against the Order Dated 3.11.2006 Dismissing the Review Application:

  The second issue was whether an appeal against the order dated 3.11.2006, which dismissed the review application, is maintainable. Order 47 Rule 7 of the Civil Procedure Code expressly provides that an order rejecting a review application is not appealable. The court referred to the Supreme Court's interpretation in Shah Babulal Khimji vs. Jayaben, which stated that an order refusing a review does not qualify as a "judgment" under Clause 10 of the Letters Patent. Consequently, no appeal against an order dismissing a review application is maintainable either under the Civil Procedure Code or under Clause 10 of the Letters Patent.

  The court also cited several precedents, including Basant Kharbanda vs. Punjab & Sind Bank and Green View Tea & Industries vs. Collector, Golaghat, which supported the view that an appeal against an order rejecting a review application is not maintainable. The court concluded that the subsequent appeal against the orders dated 9.10.2002 and 3.11.2006 is not maintainable.

  Conclusion: The appeal was dismissed. However, considering the concession made by the respondent during the hearing of the review application, the court directed that the concession shall remain binding upon the respondent for eight weeks. If the appellant allots one of the three semi-structured shops and the tin shed to the respondent within eight weeks at the market rate, it would be sufficient compliance with the orders passed by the learned Single Judge. If the appellant fails to do so, the order dated 9.10.2002 would come into force and must be complied with by the appellant.

  The appeal stands disposed of.

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• 2013 (2) TMI 884
  
  Issues involved:
  The judgment involves the following issues:
  1. Whether certain amounts should be excluded from business profits for computing deduction u/s.80 HHC of the Act.
  2. Application of a specific High Court ruling to the case.
  3. Disallowance of a written-off amount on account of intercorporate deposits.
  4. Disallowance of agency commission paid for obtaining Government contracts.
  
  Issue 1:
  The first issue pertains to whether certain amounts should be excluded from business profits for computing deduction u/s.80 HHC of the Act. The Tribunal upheld the exclusion of net exchange gain and miscellaneous receipts from business profits, despite them being income from an independent source. The High Court found no fault with this decision as the amounts were not related to the export business, thus justifying the Tribunal's stance.
  
  Issue 2:
  The second issue involves the application of a jurisdictional High Court ruling to the case. The Tribunal did not apply the ratio of a specific High Court case to the present scenario. The High Court admitted the appeal on this issue, indicating a different facet from the first question.
  
  Issue 3:
  Regarding the third issue of disallowance of a written-off amount on account of intercorporate deposits, the dispute was whether the amount should be treated as a business loss or a bad debt. The respondent-assessee had advanced intercorporate deposits to various companies, with interest earned being taxed. When a company became unable to repay, the respondent wrote off the amount as bad debts. The Tribunal upheld the CIT(A)'s decision to treat it as a business loss, considering the history of the transactions and tax treatment. The High Court found no reason to interfere with this factual finding.
  
  Issue 4:
  The final issue concerns the disallowance of agency commission paid for obtaining Government contracts. The Tribunal allowed the claim based on past rulings in the assessee's favor for earlier assessment years. The High Court noted that the revenue did not challenge these earlier rulings or provide distinctions for the current year. Therefore, the Tribunal's decision to allow the commission expenses as deduction was upheld.
  

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• 2013 (2) TMI 883
  
  Issues involved:
  The judgment involves various issues related to tax assessment for the year 2001-02, including disallowance of inter corporate deposits, repairs to factory building, exclusion of miscellaneous receipts from business profits, commission paid to parties, warranty provision, and stock written off.
  
  Disallowance of Inter Corporate Deposits (ICD):
  The Tribunal deleted the disallowance of Rs. 1,00,000 written off by the assessee on account of ICD. The Tribunal's decision was upheld as it was based on a finding of fact and did not raise any question of law.
  
  Repairs to Factory Building:
  The assessee spent Rs. 2.72 crores on repairs to the factory building, which was disallowed as capital expenditure by the assessing officer. However, the Tribunal held that the expenditure was for regular repairs and did not result in enduring benefit, thus allowing it as revenue expenditure. This decision was based on a finding of fact and did not raise any question of law.
  
  Exclusion of Miscellaneous Receipts for Deduction u/s.80HHC:
  The Tribunal restored the matter to the assessing officer for fresh consideration regarding the exclusion of Miscellaneous Receipts of Rs. 19,97,515 from business profits for computing deduction u/s.80HHC. Therefore, the question did not arise for consideration.
  
  Commission Paid to Various Parties:
  The Tribunal deleted the disallowance of Rs. 2,20,84,664 paid as commission to various parties for orders obtained from government agencies. The Tribunal's decision was upheld as it was concluded in a previous case.
  
  Warranty Provision:
  The Tribunal allowed the claim of warranty provision even though the assessee failed to make a scientific and reliable estimate of the liability. This issue was covered by a previous decision and did not arise for consideration.
  
  Stock Written Off:
  The controversy was regarding the writing off of closing stock amounting to Rs. 2.17 crores. The Tribunal found that the assessee's policy of identifying and making provisions for obsolete stock was consistent and accepted by the department in earlier assessment years. As there were no distinguishable circumstances in the current assessment year, the disallowance was not justified. Therefore, the question did not need to be entertained.
  
  The appeal was dismissed with no order as to costs.

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• 2013 (2) TMI 882
  
  Issues involved:
  The issues involved in this case include the rejection of an application by the Registrar of Companies under the Simplified Exit Scheme 2005, initiation of criminal proceedings against the Company and its Directors, and the challenge against the orders passed by the Registrar and complaints filed under the Companies Act.
  
  Rejection of Application under Simplified Exit Scheme 2005:
  The Company, facing financial difficulties, applied for striking off its name under the Simplified Exit Scheme 2005. However, the Registrar of Companies rejected the application without conducting an inquiry, citing complaints from former shareholders. The petitioners challenged this rejection, arguing that the Registrar did not follow the procedural requirements of Section 560 of the Companies Act. The counsel relied on legal precedents to support the claim that the rejection without affording an opportunity for the petitioners to substantiate their case was improper. The petitioners contended that criminal proceedings initiated against the Company while the application was pending should be quashed. The Additional Solicitor General, representing the respondents, defended the rejection of the application and the criminal complaints, stating that the Company did not meet the criteria for striking off its name under the Scheme.
  
  Legal Precedents and Procedural Compliance:
  The petitioners argued that the Registrar's order rejecting the application was challengeable under the extraordinary jurisdiction of the court due to non-compliance with Section 560 of the Companies Act. They emphasized that the criminal proceedings initiated against the Company were premature as the application for striking off the name was pending. The respondents maintained that the rejection was justified based on the circumstances of the case and the complaints against the Company. The court noted that the petitioners failed to demonstrate the relevant factors considered in such applications, especially regarding the rights of secured creditors.
  
  Dismissal of Writ Petition and Criminal Complaints:
  After considering the arguments presented, the court found no merit in the Writ Petition challenging the rejection of the application and the criminal complaints against the Company and its officers. The court emphasized that any defenses against the prosecution could be raised before the Magistrate. Consequently, both the Writ Petition and the Criminal Miscellaneous Case were dismissed.

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• 2013 (2) TMI 881
  
  Issues Involved:
  
  1. Taxability of provision for superannuation fund u/s 115WB.
  2. Applicability of interest u/s 115WJ(3) and 115WK.
  
  Summary:
  
  Issue 1: Taxability of provision for superannuation fund u/s 115WB
  
  The Revenue's appeal challenges the order of the CIT(A) which held that the provision made by the assessee for Bharat Overseas Bank Ltd. Employees Pension Fund Trust does not amount to an actual contribution to an approved superannuation fund and hence, is not chargeable to tax u/s 115WB of the Income Tax Act, 1961. The CIT(A) reasoned that only actual contributions are taxable, not mere provisions in the accounts. The Revenue argued that the CIT(A) erred in this interpretation, citing the case of Federal Bank Ltd. vs. ACIT. However, the assessee supported the CIT(A)'s decision, referencing the ITAT Ahmedabad Bench's ruling in State Bank of Saurashtra vs. Addl. CIT, which held that fringe benefit tax applies only to actual contributions, not provisions.
  
  The ITAT Chennai upheld the CIT(A)'s decision, agreeing that the mere provision does not attract tax u/s 115WB. The tribunal noted that the definition of fringe benefits in Section 115WB(1)(c) and the valuation in Section 115WC(1)(b) require actual contributions to an approved superannuation fund. The tribunal also emphasized that in cases of divergent judicial opinions, the one favoring the assessee should be adopted, citing the Supreme Court's decision in CIT vs. Vegetable Products Ltd.
  
  Issue 2: Applicability of interest u/s 115WJ(3) and 115WK
  
  The Assessing Officer had levied interest u/s 115WJ(3) and 115WK amounting to Rs. 23,52,302/- and Rs. 2,46,501/- respectively. However, since the primary issue of taxability of the provision was decided in favor of the assessee, the interest levied under these sections was also not upheld.
  
  Conclusion:
  
  The ITAT Chennai dismissed the Revenue's appeal and upheld the CIT(A)'s order, concluding that the provision for the superannuation fund does not attract fringe benefit tax as per the relevant sections of the Income Tax Act. The order was pronounced on 20th February 2013.

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• 2013 (2) TMI 880
  
  Issues Involved: Application for stay of recovery of outstanding demand u/s 10A of the Act and u/s 92C of the Act.
  
  Summary:
  The assessee filed an application seeking a stay on the recovery of an outstanding demand of &8377; 1,28,14,177, which arose from two additions made by the assessee. Firstly, an addition was made on account of allowing claim for deduction u/s. 10A of the Act on a reduced figure than claimed. Secondly, an addition was made on account of determination of ALP u/s. 92C of the Act. The assessee argued that the deduction u/s. 10A allowed by revenue authorities was contrary to a decision of the Hon'ble High Court of Karnataka and that the ALP adjustment addition could not stand based on various decisions referenced in the stay petition. The assessee also highlighted their poor financial position, supported by a bank statement showing a low cash balance. The revenue authorities contended that the additions were justified.
  
  After considering the submissions, the Tribunal found that the issue regarding deduction u/s. 10A was in favor of the assessee based on the High Court decision, and the ALP adjustment issue was also decided in favor of the assessee in various decisions referenced. The Tribunal concluded that the assessee had established a prima facie case. Taking into account the balance of convenience, relative hardship, and the financial position of the assessee, the Tribunal granted a stay on the recovery of the outstanding demand for six months or until the appeal was disposed of, whichever was earlier. The assessee was directed to pay a sum of &8377; 10,00,000 towards the outstanding demand by a specified date. The appeal was scheduled for an expedited hearing, and no separate notice of hearing was to be sent to the parties.
  
  In conclusion, the Tribunal allowed the stay petition, providing relief to the assessee in light of the legal arguments and financial circumstances presented.

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• 2013 (2) TMI 879
  
  Issues involved:
  The issues involved in the judgment are related to a writ petition concerning a demand raised by the respondent, the Tribunal's handling of the appeal, and the contention regarding remanding matters to the Transfer Pricing Officer based on guidelines from a Special Bench of the Income Tax Appellate Tribunal.
  
  Writ Petition and Coercive Measures:
  In the present case, the High Court renotified the matter and directed that the respondent shall not take any coercive measures against the petitioner in respect of the demand until the appeal before the Tribunal is disposed of. The Tribunal was expected to hear the appeal by a specified date, and both parties were instructed not to seek any adjournment before the Tribunal.
  
  Remand to Transfer Pricing Officer:
  The petitioner's counsel argued that the Tribunal has been remanding matters to the Transfer Pricing Officer for re-computation based on guidelines from a Special Bench of the Income Tax Appellate Tribunal. The respondent's counsel, however, contended that a remand might not be warranted. The High Court decided that the issue of remand is for the Tribunal to decide, and they refrained from making any comments on it. The matter was renotified for a future date, with the hope that the Tribunal would have disposed of the appeal by then.
  
  Conclusion:
  The High Court's judgment in this case involved renotifying the matter, directing the respondent not to take coercive measures, and leaving the decision on remand to the Transfer Pricing Officer to the Tribunal. The Court emphasized the importance of the Tribunal disposing of the appeal in a timely manner and instructed both parties not to seek adjournment.

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• 2013 (2) TMI 878
  
  The Bombay High Court dismissed the appeal for assessment year 2003-04 regarding the exclusion of expenses from export turnover while computing deductions under sections 10A and 10B of the Income Tax Act, 1961. The court cited a previous decision in favor of the respondent assessee. The appeal was dismissed with no order as to costs.

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• 2013 (2) TMI 877
  
  Issues Involved:
  1. Deletion of disallowance on account of Royalty payment.
  2. Allowing the claim of depreciation on computer peripherals and accessories.
  3. Allowing deduction of Exchange fluctuation loss.
  
  Summary:
  
  Issue 1: Deletion of disallowance on account of Royalty payment

  3.1 The first issue is in respect of the royalty payment of Rs. 1,38,23,945/- paid by the assessee to Carraro Spa, Italy which was treated by the A.O. as a capital expenditure and disallowed the same. The A.O. observed that the royalty payment was for acquiring technical knowledge, thus capital in nature, and allowed depreciation at 25%. The Ld. CIT(A) accepted the assessee's plea that the royalty payment was linked to annual sales and was a non-transferable license, making it revenue in nature.

  5.1 The Ld. CIT(DR) argued that the agreement granted the assessee exclusive rights to manufacture and sell licensed products, suggesting the royalty payment was capital in nature. However, the Ld. Counsel for the assessee emphasized the limited rights and obligations under the agreement, arguing the royalty was revenue expenditure.

  6. We reviewed the agreement terms and found that the assessee did not have absolute rights to the technology, and the royalty payment was linked to sales turnover, making it revenue expenditure. The Ld. CIT(A) rightly allowed the expenditure as revenue in nature.

  9. In the result, the ground taken by the revenue is dismissed.

  Issue 2: Allowing the claim of depreciation on computer peripherals and accessories

  10. The next issue is the percentage at which the depreciation is to be allowed in the peripheral of the computer. The A.O. allowed only 25% depreciation, but the Ld. CIT(A) allowed 60% depreciation, considering peripherals as part of the computer. This issue is covered by the decision of the Hon'ble High Court of Delhi in CIT Vs. BSES Rajdhani Power Ltd. and the ITAT special bench Mumbai in DCIT Vs. Datacraft India Ltd.

  13. We confirmed the order of the Ld. CIT(A) and dismissed the ground.

  Issue 3: Allowing deduction of Exchange fluctuation loss

  14. The A.O. disallowed Rs. 1,40,915/- on account of exchange fluctuation loss, considering it a provision. The Ld. CIT(A) allowed the claim, and the Ld. Counsel cited the decision in CIT Vs. Woodward Governor India P. Ltd., which supports the assessee's claim. The loss pertains to foreign exchange liability as of the financial year-end, making the provision permissible.

  We find no reason to interfere with the order of the Ld. CIT(A) and ground no.3 is dismissed.

  For A.Y. 2004-05 and 2005-06:

  12. The royalty payment issues for Rs. 2,48,63,403/- and Rs. 3,08,01,101/- respectively were treated similarly to A.Y. 2003-04, confirming the order of the Ld. CIT(A) and dismissing the grounds.

  13. The depreciation on computer peripherals and accessories issue was also treated similarly to A.Y. 2003-04, confirming the order of the Ld. CIT(A) and dismissing the grounds.

  14. The exchange fluctuation loss issue for A.Y. 2004-05 was resolved similarly to A.Y. 2003-04, confirming the order of the Ld. CIT(A) and dismissing the grounds.

  18. In the result, all three appeals of the revenue are dismissed.

  Pronounced in the open Court on 18.02.2013.

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• 2013 (2) TMI 876
  
  Issues Involved:
  The judgment involves issues related to an appeal filed by the assessee against the order passed by Ld. CIT(A)-26, Mumbai for assessment year 2005-6. The issues include challenging the ex-parte assessment order u/s 144 of the Income Tax Act, 1961 and contesting the addition of Long Term Capital Gains.
  
  Issue I - Ex-parte Assessment Order:
  The appellant contested the ex-parte assessment order u/s 144, arguing that proper notice was not served due to a change of address, leading to a lack of opportunity to present the case. The appellant highlighted the communication of address change to the AO and the failure to receive notices under section 143(2). The appellant also raised concerns about the comparison of addresses and lack of compliance with natural justice principles. The Ld. CIT(A) rejected these arguments, stating that the new address was not clearly mentioned and notices were sent to the address mentioned in the return of income. The tribunal found merit in the appellant's claim and directed the matter to be restored to the AO for denovo assessment after giving a reasonable opportunity of hearing.
  
  Issue II - Addition of Long Term Capital Gains:
  The appellant challenged the addition of Rs. 58,13,728 on account of Long Term Capital Gains, contending that complete details of the property sale were submitted, including cost of acquisition and development, which were ignored by the AO. The appellant argued for exemption u/s 54 for investment in a new property and set-off of carried forward capital loss. The Ld. CIT(A) upheld the addition, stating that the AO correctly ascertained the taxable capital gain. The tribunal, while not expressing an opinion on the additions, directed the AO to conduct a denovo assessment in compliance with the law, providing the appellant with a reasonable opportunity of hearing.
  
  Conclusion:
  The appellate tribunal allowed the appeal for statistical purposes, directing the AO to conduct a denovo assessment considering the issues raised by the appellant regarding the ex-parte assessment order and the addition of Long Term Capital Gains. The judgment emphasized the importance of providing a fair opportunity to the assessee and ensuring compliance with legal procedures in assessments.

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• 2013 (2) TMI 875
  
  Issues Involved:
  1. Validity of the agreement/banachitti dated 18.11.2010.
  2. Contingent nature of the contract.
  3. Admissibility and enforceability of the agreement.
  4. Discretionary powers of the trial court in granting injunction.
  
  Summary:
  
  1. Validity of the Agreement/Banachitti:
  The appellants contended that the banachitti dated 18.11.2010 could not be considered a valid agreement for specific performance as it was not signed by the sisters, who had a share in the property. They argued that the document lacked essential terms and signatures, rendering it invalid. The respondents countered that the banachitti contained all necessary particulars and was signed by the mother, who held the power-of-attorney for the sisters, making it a valid agreement. The court concluded that the banachitti reflected the intention of the parties and contained essential terms, thus constituting a valid agreement.
  
  2. Contingent Nature of the Contract:
  The appellants argued that the agreement was contingent upon the consent of the sisters, making it unenforceable u/s 31 of the Contract Act. The court found this argument misconceived, noting that the mother held the power-of-attorney for the sisters and substantial consideration had been paid in part performance of the agreement. The court emphasized that the principle of promissory estoppel applied, preventing the appellants from backing out of the agreement.
  
  3. Admissibility and Enforceability:
  The appellants claimed the agreement was not enforceable as it was not registered and lacked specific details regarding stamp duty and other expenses. The court held that the banachitti met the requirements of a valid agreement under the Indian Contract Act, which does not mandate a specific form for contracts. The court referenced the principle that even an oral agreement could be specifically enforced and that the banachitti, containing all material particulars, was enforceable.
  
  4. Discretionary Powers of the Trial Court:
  The appellants challenged the trial court's discretionary order granting an injunction. The court reiterated that discretionary orders should not be disturbed unless shown to be exercised arbitrarily, capriciously, or perversely. The court found that the trial court had considered the relevant criteria for granting an injunction, including prima facie case and balance of convenience, and thus, the order did not warrant interference.
  
  Conclusion:
  The appeals were dismissed, affirming the trial court's order granting an injunction. The court held that the banachitti dated 18.11.2010 was a valid and enforceable agreement, not contingent in nature, and that the trial court had exercised its discretion appropriately in granting the injunction.

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• 2013 (2) TMI 874
  
  Issues involved:
  1. TDS credit on discounting charges
  2. Delayed payment charges dispute with Gujarat Electricity Board
  3. Netting of interest for disallowance under Section 80IA of the Act
  
  TDS Credit on Discounting Charges:
  The Revenue appealed against the Income Tax Appellate Tribunal's decision regarding TDS credit on discounting charges. The Tribunal had observed that the credit and debit were set off, and hence, there was no reason to interfere with the decision of the CIT(A). The High Court agreed with this finding and saw no reason to interfere with the Tribunal's decision.
  
  Delayed Payment Charges Dispute with Gujarat Electricity Board:
  The second issue revolved around delayed payment charges of Rs. 8.78 crores that the assessee was supposed to receive from the Gujarat Electricity Board. The assessee claimed that due to subsequent developments, this amount should not be added to their total income. However, the Revenue argued that the income had accrued during the relevant year, and the subsequent developments were irrelevant for tax liability purposes. The High Court found that a question of law did arise in this matter.
  
  Netting of Interest for Disallowance under Section 80IA of the Act:
  The third issue concerned the netting of interest for disallowance under Section 80IA of the Act. Referring to a Supreme Court decision, the High Court held that the net interest income, excluding expenditure, should be considered for deduction under Section 80IA. The Court concluded that the Tribunal had not committed any error in this regard.
  
  In conclusion, the High Court admitted the tax appeal for consideration of the substantial question of law regarding the delayed payment charges dispute with the Gujarat Electricity Board and whether it should be added to the total income of the assessee considering the developments that occurred after the relevant year.

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• 2013 (2) TMI 872
  
  The Bombay High Court considered an appeal by the revenue for assessment year 2002-03. Questions raised included the allowance of payments made to ex-partners/spouses of deceased partners and the inclusion of income from sources unrelated to the business in book profit for partner remuneration. The Court did not entertain question (a) due to a previous ruling in favor of the assessee. The appeal was admitted on question (b). (Case Citation: 2013 (2) TMI 872 - BOMBAY HIGH COURT)

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• 2013 (2) TMI 870
  

  Power of RIICO authority to cancel the alloted land - Obligation on the part of RIICO to provide access to road - Lease deed executed with a clear stipulated time to develop land in 5yrs - failure to fulfill the conditions may amount to recover its possession - Writ of Mandamus

  Whether a person can directly seek writ petition before applying any other remedies available to him in leese deed - HELD THAT:- It is a settled law that writ does not lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law.

  Whether the matters/disputes relating to contract can be enforced through writ jurisdiction under Article 226 of the Constitution. - HELD THAT:- the court should not exercise its writ jurisdiction to enforce the contractual obligation. The primary purpose of a writ of mandamus, is to protect and establish rights and to impose a corresponding imperative duty existing in law.Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established.

  Whether RIICO had authority to cancel the alloted land by not providing access to road. - HELD THAT:- The State of Rajasthan had acquired the land in exercise of its eminent domain and transferred the same to the appellant-RIICO after receiving the consideration amount and executed the lease deed in its favour. The State exercised its power in transferring the land to RIICO under the Rules 1959. However, further allotment by RIICO to the respondent-company was under the Rules 1979.

  Rule 11-A of the Rules 1959, as amended created a legal fiction by which the respondent-company had become a lessee and the State of Rajasthan, the lessor and RIICO had no authority whatsoever, to cancel the allotment of land made in favour of the respondent-company, since it was only the State of Rajasthan that had the authority to cancel the said allotment; by not providing for an access road, the purpose for which allotment was made by RIICO stood defeated, and this was what had resulted in the delay of the development of the said land, and in such a fact-situation, cancellation of land was not permissible; there was a constructive obligation on the part of the appellant-RIICO to provide an approach road with respect to the land which was allotted; and that RIICO had failed to co-operate with the respondent-company to accomplish the task it had undertaken.therefore, the entire project was to be completed within a period of five years. that construction was just made on the fraction of the entire land.the lessee will not transfer nor sub-let nor relinquish rights without prior permission from the appellant. However, it is evident that the respondent-company had negotiated with a third party for development of the land.

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• 2013 (2) TMI 868
  
  The High Court of Delhi disposed of a petition where the petitioner apologized for any offense caused to an Army officer and the respondent assured to address the petitioner's grievances. Show cause notice and earlier letters were withdrawn, and the petitioner was allowed to participate in tenders not yet opened. Stay application was also disposed of. The court appreciated the respondent's and Col. Ballaney Rajesh's stand.

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• 2013 (2) TMI 867
  

  Manipulation of bidding process in contravention of provision of Section 3(3)(d) - Engagement in cartelization and bid rigging - nascent stage of competition jurisdiction would be one of the factors to be taken into consideration while inflicting penalties - process of bid rigging in the matter of supply and installation, testing and commissioning of Modular Operation Theatre (MOT for short) and Medical Gases Manifold System (MGMS) at Sports Injury Centre (SIC hereinafter), Safdarjung Hospital, New Delhi.

  Held that:- This was a contract for building a Operation Theatre for the Sports Injury Centre (SIC) which subject itself is relatively new. This Sports Injury Centre was to be created before the Commonwealth Games. The said games were to be held in India in the year 2010. The MDD seems to have completed this exercise within time and at least there is no evidence to suggest that the said Operation Theatre has not worked well. The Commonwealth Games were undoubtedly a matter of national importance and prestige. Some credit has to be given to MDD for this purpose. We would, therefore, bring down the penalty of MDD to 3%. In that view, showing due consideration to all the other factors, and to maintain the parity between the parties, we would bring down the penalty from 5% of the average turnover of last three years to 3% of the average turnover of last three years even in case of PES and MPS also. Calculated in that light, the penalty would be as per the following table:-

  We, therefore, inflict the penalty as shown in the table. The penalties imposed by the CCI in the impugned order dated 16.04.2012 shall stand modified to that extent. The three enterprises on whom the penalties have been imposed are directed to deposit the amount of penalties within 90 days of the receipt of this order.

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• 2013 (2) TMI 866
  
  Issues Involved:
  1. Deduction of tax at source u/s 194J for payments to hospitals.
  2. Composite payments liable for TDS u/s 194J.
  3. Recovery of taxes from the assessee for hospital payments not covered by CA certificates.
  
  Summary:
  
  Issue 1: Deduction of tax at source u/s 194J for payments to hospitals
  The assessee company, engaged in third-party administration services for health insurance, was found not deducting TDS on payments made to hospitals. The AO treated the assessee as 'an assessee-in-default' u/s 201(1) and levied interest u/s 201(1A). The CIT(A) upheld the AO's decision, referencing the Hon'ble Bombay High Court ruling in Dedicated Health Care Services TPA (India) Pvt. Ltd v. ACIT, which mandated TDS u/s 194J for payments made by TPAs to hospitals. The Tribunal concurred, affirming that the assessee was required to deduct tax at source under s. 194J for payments made to hospitals.
  
  Issue 2: Composite payments liable for TDS u/s 194J
  The assessee argued that TDS should apply only to the professional fees in hospital bills, not the entire composite bill. The Tribunal directed the AO to bifurcate payments into professional fees and other charges, following the Hyderabad Tribunal's ruling in Arogya Sri Health Care Trust v. ITO. The AO was instructed to compute the demand u/s 201(1) only for payments constituting professional fees.
  
  Issue 3: Recovery of taxes from the assessee for hospital payments not covered by CA certificates
  The assessee contended that taxes should be the liability of the deductee-hospitals if not deducted by the assessee, as per s. 191. The Tribunal restored this matter to the CIT(A) for de novo consideration, directing the AO to verify if hospitals had discharged their tax obligations. Additionally, the Tribunal instructed the AO to re-compute interest u/s 201(1A) only up to the date of tax payment by hospitals, aligning with the Hon'ble Karnataka High Court's ruling in Solar Automobiles India (P) Ltd v. DCIT (TDS).
  
  Conclusion:
  The appeals for AYs 2004-05 to 2009-10 were partly allowed, with directions for re-computation and verification by the AO and CIT(A) as specified. The order was pronounced on 28th February 2013.

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• 2013 (2) TMI 865
  
  Issues involved:
  The issues involved in the judgment are the deletion of addition made u/s 43B of the IT Act for Local Area Development Tax (LADT) and local sales tax, disallowance of depreciation on Goodwill u/s 32 of the Income Tax Act, and cancellation of penalty u/s 271(1)(c) of the Income-tax Act.
  
  Deletion of Addition u/s 43B - Local Area Development Tax and Local Sales Tax:
  The Revenue appealed against the deletion of additions made u/s 43B of the IT Act for Local Area Development Tax (LADT) and local sales tax. The Revenue contended that the payments were not liabilities crystallized during the relevant year and were disputed by the assessee. However, the assessee argued that Section 43B allows deductions for payments made irrespective of the year to which the liability pertains. The ITAT held that Section 43B overrides other provisions and allows deductions for payments made in the relevant year, regardless of the year to which the liability relates. The ITAT upheld the CIT(A)'s order, stating that the liability was allowed based on actual payment during the relevant accounting year.
  
  Disallowance of Depreciation on Goodwill u/s 32:
  The assessee raised a cross-objection against the disallowance of depreciation on Goodwill amounting to a specific sum. The ITAT noted that a similar issue was decided in favor of the assessee in previous years by the ITAT. Referring to a decision of the Hon'ble Supreme Court, the ITAT held that Goodwill qualifies as an asset under Explanation 3 to Section 32(1) of the Income Tax Act. Therefore, the ITAT allowed the assessee's cross-objection and directed the Assessing Officer to allow depreciation on Goodwill.
  
  Cancellation of Penalty u/s 271(1)(c):
  The Revenue appealed against the cancellation of a penalty levied under Section 271(1)(c) of the Income-tax Act due to the disallowance of depreciation on Goodwill. Since the ITAT had already allowed depreciation on Goodwill in the cross-objection, the basis for the penalty no longer existed. The ITAT upheld the CIT(A)'s decision to cancel the penalty, as the disallowance on which the penalty was based had been deleted.
  
  In conclusion, the ITAT upheld the CIT(A)'s decision to allow deductions u/s 43B for Local Area Development Tax and local sales tax payments, directed the allowance of depreciation on Goodwill u/s 32, and upheld the cancellation of the penalty u/s 271(1)(c) in favor of the assessee.

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