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Showing 161 to 180 of 1407 Records
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2015 (2) TMI 1253
Temporary injunction - Whether the plaintiffs have made out a prima facie case for continuation of the exparte ad-interim temporary injunction passed on 5.8.2014? - Held that:- Admittedly a majority of the shareholders attended the meeting and endorsed the removal of the defendants as directors. Once defendants 1 and 2 have been removed from directorship, they cannot interfere with the day-to-day affairs of the company and its working units. The learned judge has considered all the materials placed on record to come to the conclusion about the existence of prima facie case and the balance of convenience being in favour of the plaintiffs and comparative hardship that would be caused to the plaintiffs in the event of non-granting of injunction order.
The learned judge has adopted right approach to the real state of affairs. Even if this court were to come to a different conclusion from the one arrived at by the trial court, the same cannot be substituted unless it suffers from absurdity or perversity. It is not as though the learned judge has ignored certain documents having a bearing on the applications filed. He has not misapplied the law into the facts of the case. The learned judge has adopted right approach to the real state of affairs by considering all the materials placed on record in the light of the respective pleadings. No infirmity or absurdity is found in the impugned order. Accordingly the appeals will have to be dismissed a s unfit for admission.
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2015 (2) TMI 1252
Disallowance of depreciation of membership of Bombay Stock Exchange - Held that:- We find that the First Appellate Authority while allowing the claim of depreciation on BSE card, has followed the decision of the Tribunal in assessee’s own case [2015 (10) TMI 2019 - ITAT MUMBAI]. Ground No.1 taken by the Revenue is dismissed
Depreciation is to be allowed on the written down value(WDV) as defined in section 43(6)(b) of the Act. We accordingly, restore this issue to the file of the AO. The AO is directed to compute depreciation on WDV as per the provisions of law. Ground No.2 is allowed for statistical purposes.
Allowance of loss on derivative transactions as non-speculative - Held that:- We find that the Tribunal in assessee’s own case for the assessment year 2003-04 has considered the similar issue [2015 (2) TMI 314 - ITAT MUMBAI ] dated 20.8.2010, wherein the Tribunal has considered this issue qua Ground No.(a) and after considering the facts and submissions at para 11, the Tribunal has dismissed the assessee’s appeal. Respectfully following the decision of the coordinate bench , Ground Nos.3 to 5 are dismissed.
Disallowance of client assistance charges - Held that:- As in assessee's own case Tribunal has discussed the issue at length from paragraphs 8 to 15 of its order and at paragraph 15, after considering the facts and submissions held that it is not a case that falls u/s 40A of the Act. Accordingly, allowed the appeal of the assessee and dismissed revenue’s appeal. Respectfully following the decision of co-ordinate bench of the Tribunal, grounds of appeal No.6 to 8 are dismissed
Disallowance of transaction charges paid to Stock Exchange u/s 40(a)(ia) - Held that:- This issue is squarely covered in favour of the assessee by the decision of the Jurisdictional High Court in the case of CIT V/s Kotak Securities Limited (2011 (10) TMI 24 - Bombay High Court) wherein the Hon’ble High Court has observed that the revenue did not invoke relevant provisions of TDS for 10 years, therefore, the assessee could not be held to be in default for non deducting TDS on transaction charges paid to the Stock Exchange.
Addition of bad debts - Held that:- As perusal of the Assessment Order clearly shows that the AO has admitted it to be write off account of customers balances. However, the AO himself has accepted that the assessee has debited this amount under the head “Bad Debts” in it profit and loss account, therefore, treating the same as loss on Future and Option margins is totally against the facts of the case. In our considered opinion, it is nothing but bad debts and is to be allowed following the ratio laid down by he Hon’ble Supreme Court in the case of TRF Limited reported (2010 (2) TMI 211 - SUPREME COURT). Accordingly, ground taken by the assessee is allowed.
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2015 (2) TMI 1251
Hand-over the investigation of the criminal case to Central Bureau of Investigation or to some independent investigating agency - Rakesh Malik son of Balwan Singh was active member/senior worker of the Bharatiya Janta Party (for short "BJP") and some unknown persons had committed the murder of Rakesh Malik - Held that:- It is now well settled principle of law that the investigation cannot possibly be referred to CBI merely on the wish and sweet will of petitioner by leveling bald and unsubstantiated allegations against the police, unless and until, it is established that the local police has not conducted investigation in a proper manner, which is totally lacking in the instant case. Once the local police has conducted the investigation in a fair manner, collected the material evidence, submitted the final police report (challan) and arrested the main accused, who were accordingly charge-sheeted, then indeed, it should be left open to the trial Court to proceed with the matter in accordance with law at this stage, in view of law laid down by Hon'ble Apex Court in V.P. Patil [2011 (7) TMI 1297 - BOMBAY HIGH COURT] and K.V. Rajendran's cases (2013 (8) TMI 1055 - SUPREME COURT).
As indicated here-in-above, the police has fairly conducted the investigation, collected the material evidence and traced the motive of murder of Rakesh Malik. After completion of the investigation, the police has submitted the final police report (challan), the main accused were accordingly charge sheeted, the case was listed for evidence of prosecution and evidence in part has already been recorded by the trial Court. In that eventuality, in case some additional evidence would be available on record, then the Court is well within its jurisdiction to summon the additional accused, as postulated u/s. 319 Cr.P.C. Hence, the law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand and the contrary submissions of learned counsel for petitioner "stricto sensu" deserve to be and are hereby repelled.
Therefore, if the crux of the indicated material on record is put together, then to my mind, the conclusion is inescapable and irresistible that no case/ground, muchless cogent, to refer the matter to CBI is made out under the present set of circumstances. On the contrary, if the matter is referred to CBI without any material on record, as urged on behalf of petitioner, then, not only that, it will inculcate and perpetuate injustice to respondent Nos. 11 and 12, at the same time, it will considerably delay the final disposal of the case against the main accused as well.
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2015 (2) TMI 1250
Offence under NI Act - respondent-accused has failed to honour the mediated settlement of 26th July, 2013 and came up with an application for reconsideration after three months of mediated settlement - Held that:- Since, question of fact are being raised regarding voluntariness of the mediated settlement, therefore, it would be appropriate that an opportunity is granted by trial court to respondents to lead evidence to show that the mediated settlement was not a voluntary one.
In view of aforesaid, impugned order of 25th July, 2014 is hereby quashed and petitioner-complainant’s application for acting upon mediated settlement be revived for hearing by the trial court, who shall decide it after giving an opportunity to respondents to lead evidence on the petitioner’s application. Let needful be done by the trial court expeditiously and in any case within 16 weeks from the date of hearing, so fixed on the application. The petitions and applications accordingly disposed of. Trial court be apprised of this order forthwith.
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2015 (2) TMI 1249
Maintainability of petition - alternative remedy of arbitration and appeal etc. - Held that: - the petitioners have to file an appeal against the order assessing the petitioners to service tax, delay in filing the appeal may be condoned - the writ petition is dismissed as withdrawn with liberty as prayed.
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2015 (2) TMI 1248
Null and void election - non-disclosure of full particulars of criminal cases pending against a candidate, at the time of filing of nomination and its eventual impact when the election is challenged before the election tribunal - Constitutional democracy purity of election, probity in governance, sanctity of individual dignity, sacrosanctity of rule of law, certainty and sustenance of independence of judiciary, efficiency and acceptability of bureaucracy, credibility of institutions, integrity and respectability of those who run the institutions and prevalence of mutual deference among all the wings of the State
Held that:- The appellant was involved in 8 cases relating to embezzlement. The State Election Commission had issued a notification. The relevant part of the said notification reads as under:-
“1. Every candidate at the time of filing his nomination paper for any election or casual election for electing a member or Members or Chairperson or Chairpersons of any Panchayat or Municipality, shall furnish full and complete information in regard to all the five matters referred in paragraph-5 of the preamble, in an Affidavit or Declaration, as the case may be, in the format annexed hereto:-
Provided that having regard to the difficulties in swearing an affidavit in a village, a candidate at the election to a Ward Member of Village Panchayat under the Tamil Nadu Panchayats Act, 1994 shall, instead of filing an Affidavit, file before the Returning Officer a declaration in the same format annexed to this order:
2. The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State or before an Officer competent for swearing an affidavit.
3. Non-furnishing of the affidavit or declaration, as the case, may be, by any candidate shall be considered to be violation of this order and the nomination of the candidate concerned shall be liable for rejection by the Returning Officer at the time of scrutiny of nomination for such nonfurnishing of the affidavit/declaration, as the case may be.
4. The information so furnished by each candidate in the aforesaid affidavit or declaration as the case may be, shall be disseminated by the respective Returning Officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available to all other candidate on demand and to the representatives of the print and electronic media.
5. If any rival candidate furnished information to the contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above.
6. All the Returning Officers shall ensure that the copies of the affidavit/declaration, prescribed herein by the Tamil Nadu State Election Commission in the Annexure shall be delivered to the candidates along with the forms of nomination papers as part of the nomination papers.”
As reproduced the information that is required to be given. Sections 259 and 260 of the 1994 Act makes the provisions contained under Section 123 of the 1951 Act applicable. Submission of Ms. V. Mohana, learned counsel for the appellant is that there was no challenge on the ground of corrupt practice. As we find the election was sought to be assailed on many a ground. The factum of suppression of the cases relating to embezzlement has been established. Under these circumstances, there is no need to advert to the authorities which are cited by the learned counsel for the appellant that it has no material particulars and there was no ground for corrupt practice. In fact, in a way, it is there. The submission of the appellant that he has passed up to Class X and, therefore, was not aware whether he has to give all the details as he was under the impression that all the cases were one case or off-shoots of the main case. The aforesaid submission is noted to be rejected. Therefore, we are of the view that the High Court is justified in declaring that the election as null and void on the ground of corrupt practice.
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2015 (2) TMI 1247
Penalty u/s. 271(1)(c) - disallowance of prior period expenses - Held that:- There were 8 units which were later merged and the assessee company was incorporated. The expenses of ₹ 1,69,71,833/- pertained to an earlier period but were claimed in the current year. Therefore, there was no attempt to conceal income. The assessee claimed the expenses in the current year under a bonafide belief that the expenses could be claimed as they were genuine business expenses.
Mensrea was a essential requirement of penalty u/s 271(1)(c). See CIT vs. Reliance Petro Products Ltd. [2010 (3) TMI 80 - SUPREME COURT ]
We are of the view that the assessee has not deliberately furnished inaccurate particulars with a view to concealment of income. We further find that the explanation of the assessee is bonafide. In the background of the aforesaid discussions and precedents, we find that Ld. CIT(A) has rightly observed that the assessee would not be liable for levey of penalty and he deleted the penalty - Decided against revenue.
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2015 (2) TMI 1246
Reopening of assessment - Addition u/s 68 - satisfaction non recorded u/s 151 - Held that:- The reopening is bad in law for the reason that the Ld.CIT has not recorded his satisfaction as contemplated u/ s 151 of the Act. Commissioner has simply mentioned "approved" to the report submitted by the concerned AO.
Section 151 guards that the sword of Sec. 147 may not be used unless a superior officer is satisfied that the AO has good and adequate reasons to invoke the provisions of Sec. 147. The superior authority has to examine the reasons, material or grounds and to judge whether they are sufficient and adequate to the formation of the necessary belief on the part of the assessing officer. If, after applying his mind and also recording his reasons, howsoever briefly, the Commissioner is of the opinion that the AO's belief is well reasoned and bonafide, he is to accord his sanction to the issue of notice u/ s. 148 of the Act. In the instant case, we find from the perusal of the order sheet " which is on record, the Commissioner has simply put "approved" and signed the report thereby giving sanction to the AO. Nowhere the Commissioner has recorded a satisfaction note not even in brief Therefore, it cannot be said that the Commissioner has accorded sanction after applying his mind and after recording his satisfaction.- Decided in favour of assessee.
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2015 (2) TMI 1245
Scheme of Amalgamation seeking - directions of this court to dispense with the requirement of convening the meetings of its equity shareholders, secured and unsecured creditors to consider and approve the said claim - Held that:- In view of the submissions made at the bar and the settled law on the subject, the requirement of convening and holding the meetings of the secured and unsecured creditors of the applicant/transferee company, to consider and if though fit, approve, with or without modification, the proposed Scheme of Amalgamation, is dispensed with.
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2015 (2) TMI 1244
Order of attachment - Prevention of Money Laundering - Held that:- We make it clear that by virtue of the said order dated 13.02.2015, all further proceedings pursuant to the impugned order of provisional attachment dated 15.11.2014, including the proceedings under Section 8 of Prevention of Money Laundering Act, 2002 for confirmation of the provisional attachment, shall remain stayed. However, attachment of the property in question shall continue.
It is further made clear that the period of stay pursuant to the interim order dated 13.02.2015 shall not be taken into consideration for the purpose of Section 5(1) of the Prevention of Money Laundering Act, 2002 according to which, the provisional attachment can be operational only for a period of 180 days from the date of the order of attachment. CM stands disposed of accordingly.
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2015 (2) TMI 1243
Whether the learned Judge, sitting in civil jurisdiction, could draw a conclusion, no duty was payable - Failure to fulfill the export Obligation against the authorization - Cargo handling operation at Haldia Dock Complex - imported various equipments including Mobile Harbour Cranes, Wheel Loaders, Dumpers etc. under a scheme - Enforcement of bank guarantee - Violation of condition of guarantee - the decision in the case of Union of India Versus Haldia Bulk Terminal Private Limited [2014 (6) TMI 715 - CALCUTTA HIGH COURT] contested, where it was held that In accordance with the provisions of Section 155, no suit does lie against the Central Government for any act done in pursuance of the Customs Act or the Rules or Regulations framed there under - Held that: - the decision in the above case upheld - appeal dismissed.
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2015 (2) TMI 1242
Provisional attachment orders for a period of 180 days - PMLA - Held that:- The life of provisional attachment order was 180 days, which had come to an end after the order has been passed by the adjudicating authority. Thus, we are not inclined to go into the question of legality and validity of the provisional attachment order and also further to examine the impugned order passed by the learned Single Judge. However, in the facts of the case, we keep it open to be considered by the appropriate authority at an appropriate stage. We further grant liberty to the appellants to raise all issues permissible under the provisions of law before the appropriate forum, if so advised. The appropriate forum is competent to deal with the matter independently on its own merit, without being influenced by some observations made, if any, in the order dated 17.11.2014 passed by the learned Single Judge.
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2015 (2) TMI 1241
Blacklisting order - petitioner banned for an indefinite period from doing any future projects with the respondent or participating in bidding process for any of its tenders in future - whether a punitive measure is disproportionate? - Held that:- Indisputably, the benefit that a contractor obtains from any fraudulent practice would have a vital bearing on the quantum of punishment that may be imposed on the contractor for such fraudulent practice. In this case, it is alleged that the petitioner had secured the contracts in question by submitting fabricated statement of accounts. But for such fabricated statement, the petitioner would have been ineligible for being awarded the contracts. The petitioner has produced other documents in response to the show cause notice to point out that the petitioner was enjoying other working facilities from ICICI bank Ltd. at the material time and even if the petitioner did not qualify on the basis of his existing working capital as reflected in the balance sheet, the petitioner would qualify on the basis of the working capital facilities extended to the petitioner by ICICI bank Ltd.. The said documents have been rejected by GAIL as the same had not been submitted at the relevant point of time.
In view thereof, the approach of GAIL in this respect may not be apposite. Although such documents would have no bearing whether petitioner was guilty of alleged misconduct i.e. submission of fabricated documents, the same would be germane to consider the question whether the petitioner had acquired any benefit which he was not otherwise entitled to. And, this would have a bearing on the punitive measure to be imposed. If the working capital facilities extended by ICICI bank Ltd. to the petitioner would enable the petitioner to qualify for the tender then the petitioner would have obtained no benefit which he otherwise was not entitled to.
No interference is called for insofar as blacklisting the petitioner is concerned. However, to the extent that the petitioner has been debarred from all future business with GAIL, the impugned order is set aside. The matter is remanded to GAIL to consider the period of blacklisting afresh in view of the aforesaid observations and in the context of the period as specified in the integrity pact (i.e. minimum of six months to maximum of three years)
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2015 (2) TMI 1240
Issue of sale notice - symbolic possession - SARFAESI Act - Held that:- It is clear from the declaration of law that only after possession is handed over to the secured creditor, the later is entitled to invoke Rule 8 of the Security Interest Enforcement Rules, 2002 and issue the sale notice.
Admittedly in the instant case possession has not been handed over to the secured creditor in terms of paragraphs 36. 1 to 36.3 of Standard Chartered Bank Vs. V. Noble Kumar & Ors. (2010 (7) TMI 277 - HIGH COURT OF MADRAS ). Therefore, we find no reason to interfere with the order passed by the learned Single Judge quashing the sale notice. This order shall not preclude the appellant-Bank from taking appropriate steps under the SARFAESI Act, 2002 in accordance with law. The appeal is accordingly dismissed.
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2015 (2) TMI 1239
Appeal admitted on the following question of law:
“ Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in setting aside the order of the Commissioner of Income tax passed u/s. 263 of the Income tax passed u/s. 263 of the Income tax Act?”
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2015 (2) TMI 1238
Maintainability of appeal - territorial jurisdiction - the respondent-assessee has its manufacturing Unit located within the Union Territory of Daman - Held that: - In view of clause (b) of Section 36 of the Central Excise Act, 1944, which contains definition of the term High Court in relation to Union Territory of Daman & Diu and Dadra & Nagar Haveli, the jurisdiction would be of High Court of Bombay. In that view of the matter, this Tax Appeal is not maintainable before the Gujarat High Court and Gujarat High Court does not have any territorial jurisdiction over the matters decided with regard to Union Territory of Daman & Diu and Dadra & Nagar Haveli irrespective of the fact that the Tribunal is situated at Gujarat - Appeal is dismissed for want of territorial jurisdiction.
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2015 (2) TMI 1237
Addition u/s 69A - cash deposits in the bank account - Held that:- A.O. has not brought any evidence on record to prove that the assessee has spent the amount withdrawn somewhere else. The theory of peak credit is not applicable in the case of the assessee because the assessee never accepted it to be unexplained money. Therefore, in the absence of complete details and considering the fact that the amount of cash was rotating in the bank account of the assessee with Kotak Mahindra Bank, Rajpura by making cash deposits and immediately withdrawing the same would show that the entire cash deposits in the bank account may not be unexplained amount of the assessee. Therefore, it would be reasonable and proper to give some substantial benefit to the assessee for the purpose of deleting part of addition on this issue. In view of the above discussion, we are of the view that ends of justice would meet if the addition of ₹ 10 lacs is deleted. The addition may be restricted to ₹ 7,35,200/- only. We accordingly, modify the orders of the authorities below and delete the addition of ₹ 10 lacs, the addition would now be restricted to ₹ 7,35,000/- - Decided partly in favour of assessee.
Addition on account of higher closing stock - return filed under section 44AF - Held that:- The addition is wholly unjustified. Since the return is filed under section 44AF of the Act, the assessee need not to maintain any books of account. Whatsoever cash book or ledger was prepared by the assessee, was not believed by the Assessing Officer while making the addition on account of unexplained cash with Kotak Mahindra Bank, Rajpura. In the balance sheet filed with the return of income, lesser closing stock was shown but it appears that inadvertently the assessee has maintained wrong figure in the income tax return of the closing stock. Therefore, on such basis, the addition need not to be made against the assessee. Further when income is declared on presumptive basis under section 44AF of the Act, no further trading addition should be made against the assessee. - Decided in favour of assessee.
Interest under section 234B which is mandatory and consequential in nature. This ground of appeal of the assessee is, therefore, dismissed.
Penalty proceedings u/s 271D - Held that:- CIT (Appeals) has not discussed this issue in the appellate order as no such ground was raised before him. Since the Assessing Officer has not levied penalty against the assessee and merely initiated penalty proceedings would show this ground is premature and is liable to be dismissed. The penalty proceedings are distinct and separate, which is noted by the Assessing Officer in the assessment order. Therefore, no further interference is called for in the matter. This ground of appeal of the assessee is, therefore, dismissed.
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2015 (2) TMI 1236
Non prosecution of appeal - Held that - The record reveals that earlier the notice was served upon the assessee and the appeals were adjourned on the request of the learned counsel for assessee. Thereafter the appeals were again taken up for hearing and the assessee was notified the date of hearing through registered post. The registered post did not return back to the office of the Tribunal and, therefore, deemed to be served upon the assessee in ordinary course. But despite service of notice, none appeared on behalf of the assessee at the time of hearing of the appeals. It, therefore, appears that the assessee is no more interested in prosecuting the appeals. Therefore, the appeals of the assessee are liable to be dismissed. The laws aid those who are vigilant, not those who sleep upon their rights. Thus we dismiss the appeals filed by the assessee for non prosecution.
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2015 (2) TMI 1235
CENVAT credit - input service - commercial construction services - Rule 2(l) of the CCR - Held that: - service which is used in relation to setting up of factory or an office, relating to such a factory is ‘input service’ - As construction service used by the respondent is only for setting up of their factory, therefore as per the provisions of Rule 2(l) itself allowed the appellant to avail CENVAT credit on these services of service tax paid by them - credit allowed - appeal dismissed - decided against Revenue.
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2015 (2) TMI 1234
Issues Involved:
1. Eligibility for deduction u/s 80-IB(10) of the Income-tax Act, 1961.
2. Disallowance made by the Assessing Officer u/s 14A of the Act.
3. Interest u/ss. 234A, 234B, and 234C of the Act.
Eligibility for Deduction u/s 80-IB(10) of the Income-tax Act, 1961:
The appeal involved the issue of the assessee's eligibility for deduction u/s 80-IB(10) of the Income-tax Act, 1961. The Assessing Officer disallowed the claim as the return was not filed within the due date specified u/s 139(1) of the Act. The CIT(A) confirmed this disallowance, citing various judicial precedents. The Special Bench decision in the case of Saffire Garments was referred to, emphasizing the mandatory nature of filing the return within the due date for claiming the deduction. The Tribunal confirmed the order of the CIT(A) based on this precedent, rejecting grounds No.2 to 6.
Disallowance u/s 14A of the Act:
Another issue involved the disallowance made by the Assessing Officer u/s 14A of the Act. The assessee contended that no claim of exempt income was made in the return, hence no disallowance could be justified. The CIT(A) upheld the disallowance, considering an increase in investment leading to interest on loans and disallowing proportionate interest on investments earning exempt income. The assessee relied on the decision in the case of Bhuwalka Steel Industries Ltd., arguing that in the absence of exempt income, sec.14A cannot be invoked. The Tribunal, following the precedent, allowed grounds No.7 to 9, deleting the disallowance made u/s 14A of the Act.
Interest u/ss. 234A, 234B, and 234C of the Act:
The issue of interest u/ss. 234A, 234B, and 234C of the Act was remanded to the AO for giving consequential relief to the assessee, if any. This ground was allowed for statistical purposes. The appeal was partly allowed by the Tribunal, with the decision pronounced on 20th February 2015.
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