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Case Laws
Showing 141 to 160 of 1407 Records
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2015 (2) TMI 1274
Levy of House tax - case of petitioner is that the petitioner's institution being a charitable organization is exempted from payment of house tax - Held that: - in the absence of the counsel for the respondent, who is not present even though the matter has been taken up in the revised list, we dispose of the matter directing the competent authority to decide the objection of the petitioner by a reasoned and speaking order upon giving an opportunity of hearing to the petitioner - Till the disposal of the objection, the interim order granted by the Court will continue to operate.
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2015 (2) TMI 1273
Change of composition of Full Bench - revision of seniority list of Engine Fitters - whether in a Full Bench of the Administrative Tribunal, the number of Administrative Members could be more than the number of Judicial Members?
Held that: - The Administrative Tribunal itself contains a provision, which gives a very vague indication. While empowering the Chairperson of the Tribunal under Section 5(4)(d) to constitute a Bench comprised of more than two members, the Act circumscribes such a power through a Proviso to the effect that every Bench so constituted should include at least one Judicial Member and one Administrative Member. In other words, the bottom line prescribed by the Proviso to Section 5(4)(d) is that there should be one Judicial Member and one Administrative Member. This simply would mean that in a Bench of Three Members, all of them cannot be Judicial Members and all of them cannot also be Administrative Members.
The Proviso to Section 5(4)(d) of the Administrative Tribunals Act, 1985 cannot be understood to mean that the Parliament contemplated a single Judicial Member to be a decorative piece in a Bench of more than two - in a Bench of more than two Members constituted by the Chairperson of the Administrative Tribunal, the number of Administrative Members cannot exceed the number of Judicial Members.
Matter remitted back to the Tribunal for reconstitution of the Full Bench - petition allowed by way of remand.
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2015 (2) TMI 1272
TDS u/s 192 - Assessee in default - non deducting tax at source on salary - levying interest on tax not deducted at source - order u/s. 201(1) and 201(1A) - Held that:- The plea of the assessee that it made a bonafide estimate of employees salary by valuing the perquisites in the form of residential accommodation provided to the employees by valuing the same as if employees were employees of Central Govt. has to be accepted.
In this regard, it is clear from the records that the position with regard to the assessee not being a Central Govt. was brought to its notice by the department only in the proceedings initiated in 2013. Even thereafter, the assessee has been taking a stand that its employees are employees of Central Govt. As held the obligation of the assessee is only to make a bonafide estimate of the salary. Assessee has made such an estimate. The assessee's obligation u/s. 192 is therefore properly discharged and hence proceedings u/s. 201(1) & 201(1A) of the Act have to be quashed and are hereby quashed. - Decided in favour of assessee.
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2015 (2) TMI 1271
AO jurisdiction to demand the amount of tax not deducted at source by an order passed under sub-sections (1) and (1A) of Section 201 - Held that:- Case of Hindustan Coca Cola Beverage (P.) Ltd. v. CIT [2007 (8) TMI 12 - SUPREME COURT OF INDIA] is a complete answer to the submissions advanced stating the Circular No.275/201/95-IT)(B), dated 29-1-1997 declares "no demand visualized under section 201(1) of the Income-tax Act should be enforced after the tax deductor has satisfied the officer-in-charge of TDS, that taxes due have been paid by the deductee-assessee. However, this will not alter the liability to charge interest under section 201(1A) of the Act till the date of payment of taxes by the deductee-assessee or the liability for penalty under section 271C of the Income-tax Act
Even otherwise, whether the payee has offered money for taxation; whether the payee has paid tax on that, is a defence which the appellant could have taken. If he takes the defence, it is for him to prove it. It cannot be suggested that it was the obligation of the assessing officer to first explore the possible defences and then to collect evidence in support thereof.
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2015 (2) TMI 1270
Disallowance of payment made to S.R. Batliboi and Company for services rendered by them - allowable business expenditure - Held that:- The assessee did not do any such thing nor even any attempt was made to do so. Naturally, the assessing officer disallowed the expenditure and the Tribunal upheld it, if we may say so correctly. Mr. Bajoria, learned senior advocate, submitted that misunderstanding on the part of the assessee was at the root of the matter which is why the appropriate evidence could not be brought to the notice of the assessing officer. He submitted that an opportunity should be granted to the assessee to produce all relevant evidence to show that the sum of ₹ 11 crores was incurred by the assessee for appropriate reasons.
This question of fact, we are inclined to think, may be enquired into further for the purpose of examining the grievance of the assessee, if any.
For that limited purpose, the matter is remanded to the assessing officer. He shall permit the assessee to adduce such evidence as the assessee wants to rely upon and shall consider the matter in accordance with law.
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2015 (2) TMI 1269
Suit for recovery of money - time limitation - whether the suit claim is barred by limitation in the light of Exs.P4 and P5 documents?
Held that: - Sec. 3 of the Limitation Act provides that it is the duty of the Court to dismiss any suit instituted, appeal preferred or application made after the prescribed period although the limitation has not been set up as a defence. 11.2. The proposition laid down in the above case cannot be disputed. It is settled proposition of law that the acknowledgment of liability should be made before the expiry of the period of limitation and that if it is beyond the period of limitation, it is of no use to the plaintiff. Apart from that, it is also the duty of the Court to find out whether the suit claim is barred by limitation or not, de hors the plea being raised by the other side. Doubtlessly, it is the duty of the Court to look into the aspect of limitation and to reject the plaint, if the claim is barred by limitation - we hereby extend the limitation and agree and undertake to repay the sum of rupees twenty five lakhs.
Under Ex.P-5 four cheques have been issued. But proof has been placed to show that only three cheques have been dishonored (Exs.P-6 to P-8). When this was pointed out the learned counsel for the plaintiff submitted that the defendant has paid a sum of ₹ 10,00,000/- and the balance due is only ₹ 15,00,000/-. Therefore, the suit has to be decreed for a sum of ₹ 15,00,000/-, even though as per Ex.P5 the liability is ₹ 25,00,000/-.
Suit is partly decreed.
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2015 (2) TMI 1268
Revision of assessment notice - section 27 of the TNVAT Act, 2006 - petitioner's total turnover is in excess of one crore rupees and the petitioner failed to to file the mandatory audit report in Form WW for the assessment year 2012-13 - Held that: - Admittedly, the petitioner has sought for time and he has not given any reply in detail. The respondent is unable to refute the contention - A reading of section 63-A makes it very clear that levy of 2% of the reported taxable turnover on the petitioner is not mentioned in section 63-A of the Act. The notice dated 7.11.2014 refers to imposing of 2% on account of probable increase in sales.
When the Department had chosen to proceed against the petitioner for violation of Section 63, they cannot impose fine of 2% to the taxable turnover - the matter is remitted to the authority for consideration of the case on merits afresh and in accordance with law.
Petition disposed off.
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2015 (2) TMI 1267
Reopening of assessment - change of opinion - validity of reasons to believe - allowability of expenditure - Held that:- A detailed disclosure was made by the assessee in relation to the claim of expenditure. Reopening the assessment on the very same set of facts which were very much available at the time of the original assessment proceedings is nothing but a change of opinion. In our considered opinion one needs to give a schematic interpretation of the words “ reason to believe” failing which, section 147 would give arbitrary powers to the AO to reopen the assessment on the basis of “mere change of opinion”, which cannot be per se reason to reopen. There is conceptual difference between power to review and power to reassess. The AO has no power to review, he has the power to re-assess. But assessment has to be based on fulfillment of certain conditions and if the concept of “change of opinion” is removed, then, in the garb of reopening of assessment, review would take place.
Supreme Court in the case of CIT vs. Kelvinator of India India [2010 (1) TMI 11 - SUPREME COURT OF INDIA] has held that the AO must have some tangible material for reopening the assessment. In the case in hand, we do not find any new tangible material evidence on the basis of which the AO has reopened the assessment. - Decided in favour of assessee.
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2015 (2) TMI 1266
Penalty u/s 271(1)(c) - Held that:- As the addition confirmed by the FAA has been deleted by the Tribunal in quantum appeal, so there is no justification for not deleting the penalty for the amount in question. Effective ground of appeal is decided in favour of the assessee.
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2015 (2) TMI 1265
Authorization being issued u/s 132A - Investigating Officer to handover 42 gunny bags i.e. the Muddamal, which have been seized during the investigation of the FIR registered with Jahangirpura Police Station, Surat, to the Income Tax Authority - Held that:- SLP dismissed. HC order confirmed. [2015 (1) TMI 1371 - GUJARAT HIGH COURT]
HC has held that that the contention of the petitioner that if the certified copies of the documents lying in 42 gunny bags are not supplied to the petitioner then prejudice would be caused to him in the trial wherein he is one of the accused, is required to be rejected.
In view of the fact that the said cash is required to prove the case against the accused learned Special Public Prosecutor has taken the objection and therefore it cannot be said that the learned Special Public Prosecutor is taking different stand. Thus, the said contention of the petitioner is also required to be discarded.
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2015 (2) TMI 1263
Disallowance u/s. 14A read with Rule 8D - tribunal restoring the issue of disallowance u/s. 14A to the file of the Assessing to decide afresh - Held that:- Tribunal has merely followed the decision of this Court in Godrej & Boyce Manufacturing Co. Ltd. v/s. DCIT [2010 (8) TMI 77 - BOMBAY HIGH COURT] directing the Assessing Officer to work out the disallowance on a reasonable basis and not under Rule 8D under the Income Tax Rules for the Assessment Year 200708. The Tribunal has merely followed the decision of the jurisdictional High Court and no fault can be found with the same. Accordingly, no substantial question of law arises in Question (a). Hence dismissed.
Disallowance u/s 14A to be added to arrive at book profit for purposes of Section 115JB - MAT computation - Held that:- The impugned order of the Tribunal followed its decision in M/s. Essar Teleholdings Ltd. v/s. DCIT [2013 (5) TMI 116 - ITAT MUMBAI] to held that an amount disallowed under Section 14A of the Act cannot be added to arrive at book profit for purposes of Section 115JB of the Act. The Revenue's Appeal against the order of the Tribunal in M/s. Essar Teleholdings (supra) was dismissed by this Court [2015 (5) TMI 810 - BOMBAY HIGH COURT] - For , question (b) does not raise any substantial question of law.
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2015 (2) TMI 1262
Allowing depreciation on royalty - claim of the Assessee Company of a deduction u/s. 35(1)(iv) on account of capital expenditure incurred by the Assessee Company towards cost of construction of a building used for research and development - ITAT allowing the claim - Held that:- Identical issues were raised by the Revenue for the Assessment Year 2005-06 [2013 (2) TMI 843 - BOMBAY HIGH COURT] and this Court dismissed the Revenue's Appeal in the Respondent-Assessee's own case.
Addition on account of outstanding creditors u/s. 41(1) - Held that:- Tribunal was justified in deleting the addition as following its order in Respondent-Assessee's own case for Assessment Year 2005-06.
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2015 (2) TMI 1261
Interpretation of statute - proviso contained in Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - termination of disabled man - disability caused during the service - Held that: - It is well settled that the provisions of a statute must be read harmoniously together. However, if this is not possible then it is settled law that where there is a conflict between two Sections, and you cannot reconcile the two, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other - the positive provision contained in s. 2(d) must prevail over the definition of "transfer of property" prescribed by s.5. No doubt, the purpose of the definition is to indicate the class of transfers to which the provisions of the Transfer of Property Act are intended to be applied; but a definition of this kind cannot over-ride the clear and positive direction contained in the specific words used by s. 2(d).
It is settled law that a proviso does not travel beyond the provision to which it is a proviso. Therefore, the golden rule is to read the whole Section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction - one is to read Section 47 as a whole and being read as a whole it is clear from the proviso that it would apply to "type of work" carried on in any establishment and would, therefore, apply to both dispensing with service including reduction in rank as well as promotion.
Apart from the plea of the disabled officers mentioned being vague, for no particulars are given as to the extent of their disability, the Union has made it clear that Standing Order No.7/99 will not apply and that since the job requirements demand a high level of fitness and ability CRPF is exempted from the provisions of Section 47 of the Act. Not only has this plea not been raised before the High Court, but the plea raised before us is lacking in particulars and has to be dismissed for this reason also.
The respondent, who has been occupying official accommodation, will vacate such accommodation by 30th June, 2015 - appeal allowed.
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2015 (2) TMI 1260
Directions from this Bench to direct the respondents 1 to 12 to return the 1310 shares to the petitioner since the 13th respondent held the said shares in the R1 Company - Held that:- The petition is liable to be dismissed on the ground that
(i) the petitioner is not having the proper power of attorney to file the present petition for ventilating the grievance of the 13th respondent.
(ii) the reliefs which are sought in the petition cannot be granted by this Bench for the reason that the claim of the 13th respondent is that he had not applied for any transfer of his shares nor did he sign any application for transfer jointly or otherwise. On the other hand the respondent contends that the 13th respondent had transferred his shares to R2 and one Mr. late K. Thangavel on 28.08.1985. One of the other grounds is to decide with regard to the fundamental question whether the 13th respondent transferred his shares or pledged the shares. These disputed questions of facts cannot be decided under the guise of mere rectification.
In view of the aforesaid reasons the petition is not maintainable and liable to be dismissed
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2015 (2) TMI 1259
Construction and interpretation of essentially two provisions of the Code - Section 372 - Section 378 - Whether complainant is entitled to prefer an appeal under proviso to Section 372 of Cr.P.C. before the Court of Session against the judgment of acquittal passed by subordinate Criminal Court arising out of criminal complaint filed by complainant, or he is required to prefer an appeal under sub-section (4) of Section 378 of the Cr.P.C. before this Court after obtaining leave?
Held that: - Section 378(4) of the Code is a special provision, dealing specifically with appeal by complainant in case of acquittal of accused in complaint cases, and as such it will have overriding as well as exclusive application and effect in cases of acquittal of accused in cases instituted upon complaint. Section 378(4) of the Code lays down twin criteria for tenability of appeal that it should be filed in the High Court and that the appeal will lie after obtaining special leave. As a corollary it flows that complainant will not be entitled to prefer an appeal under proviso to Section 372 of the Code before the Court of Session against the judgment of acquittal passed by subordinate criminal court arising out of criminal complaint filed by complainant, he will be required to prefer an appeal under Section 378(4) of the Code before the High Court after obtaining leave.
The incorporation of proviso to Section 372 of the Code by Act No. 5 of 2009, providing right of appeal to the victim, will not come to the aid those victims who are complainants having much role in the court proceedings.
Appeal dismissed being not maintainable.
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2015 (2) TMI 1258
Whether appeal can be maintained against the judgment of acquittal for an offence punishable under Section 138 of Negotiable Instruments Act before the jurisdictional Sessions Court under proviso to Section 372 of Cr.P.C.? - Held that: - the word "complainant" under Proviso to Section 142 of N.I.Act and "the victim" under Section 2(wa) of Cr.P.C. are not one and the same - appeal filed under Proviso to Section 372 of Cr.P.C., is not maintainable - petition allowed - decided in favor of petitioner.
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2015 (2) TMI 1257
Issues:
Assessment of liability to deduct tax under S.194C of the Act on amounts paid to sub-contractors by a joint venture entity with converted partnership firms as members, leading to a disallowance under S.40a(ia) of the Act.
Analysis:
Issue 1: Liability to deduct tax under S.194C and disallowance under S.40a(ia) of the Act
The primary issue in this case revolved around the liability of the assessee, a joint venture entity with converted partnership firms as members, to deduct tax on amounts paid to sub-contractors. The Assessing Officer contended that since the contract receipts were given on back to back sub-contracts to the joint venture partners, the assessee was liable to deduct tax under S.194C of the Act. However, the assessee argued that there was no contractor-subcontractor relationship between the joint venture and its constituents, thus absolving it from the obligation to deduct tax. The Commissioner of Income-tax (Appeals) sided with the assessee, citing a previous decision by the ITAT, Hyderabad Bench 'B,' which held that in similar circumstances, there was no sub-contract between the joint venture and its members, hence S.194C did not apply. The ITAT upheld the CIT(A)'s decision based on the precedent set in the assessee's own case for the assessment year 2009-10. Consequently, the Revenue's appeal challenging the CIT(A)'s order was dismissed.
In conclusion, the judgment by the Appellate Tribunal ITAT Hyderabad centered on the issue of the liability to deduct tax under S.194C of the Act and the resulting disallowance under S.40a(ia) of the Act concerning a joint venture entity with converted partnership firms as members. The decision reaffirmed the principle that in the absence of a contractor-subcontractor relationship between the joint venture and its constituents, the provisions of S.194C do not apply, as established in a previous ruling in the assessee's own case. The dismissal of the Revenue's appeal underscored the importance of precedent and consistent interpretation of tax laws in determining tax liabilities in complex contractual arrangements.
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2015 (2) TMI 1256
Addition on account of interest paid outside books of accounts on PDCs - Held that:- The PDCs’ have been encashed within a period of six months as is apparent from page 11 of assessment order where A.O. has noted the date of sale of properties and date of encashment of cheques. Therefore, we find that the facts in the present case are similar to that of group companies of ISG Estates (P) Ltd.[2015 (2) TMI 12 - ITAT DELHI] therefore, following the Tribunal order in the case of group company, we dismiss this appeal of Revenue.
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2015 (2) TMI 1255
Addition on account of interest on post dated cheque (PDC) paid out of books of account - Held that:- The PDCs’ have been encashed within a period of six months as is apparent from page 11 of assessment order where A.O. has noted the date of sale of properties and date of encashment of cheques. Therefore, we find that the facts in the present case are similar in one of the Sister concern i.e. case of M/s IAG Promoters and Development Pvt. Ltd [2015 (2) TMI 12 - ITAT DELHI] therefore, following the Tribunal order in the case of group company, we dismiss this appeal of Revenue.
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2015 (2) TMI 1254
Director or an employee of the company prosecution for the offence punishable under section 138 of the Negotiable Instruments Act - offence is allegedly committed by the company - Held that:- The present petition is maintainable and the petitioner is entitled for the relief sought by him in the present petition.
Writ petition is allowed.The proceedings pending against the Petitioner i.e. C.C.No. 2411/SS/2007 before the Metropolitan Magistrate, Court, Ballard Pier, Mumbai, shall stand quashed.Bail bond, if any, of the Petitioner shall also stand cancelled.
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