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Showing 21 to 40 of 773 Records
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2009 (12) TMI 1044 - CALCUTTA HIGH COURT
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... ... ..... o; Appeal would be heard on the aforesaid point and accordingly the appeal is admitted. Another point has been suggested with regard to the delay in depositing the tax amount and this delay is about one month. We think this point does not involve any question of law. It is a question of fact so far as late deposit is concerned , power is provided in the Act itself. We do not wish to formulate any point on this issue. Let usual notice be issued upon the respondent. Paper book in requisite numbers be prepared and filed one week after the Christmas vacation. Liberty to mention for enlistment in the list. All parties shall act on a xerox signed copy of this order on usual undertakings.
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2009 (12) TMI 1043 - TELANGANA HIGH COURT
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... ... ..... in the absence of petitioners’ counsel on the relevant date of hearings namely 06-10-2009 and 08-10-2009 in view of the asserted illhealth of the counsel as supported by medical certificates, the petitioners did not therefore have an adequate opportunity of presenting their point of view for the relief of a concession on the pre-deposit for preferring the appeal. In the circumstances above, after hearing the learned counsel for the petitioner and Sri B.Raj Kiran, the learned Standing Counsel for the Central Excise and Customs, the writ petition is disposed of at the stage of admission directing the petitioners to deposit 50% of the duty and 10% of the penalty as determined by the order of the 1st respondent dated 22-05-2008 within a period of three (3) weeks from today. On such deposit, the 2nd respondent-Tribunal shall entertain the appeal and dispose of the same in accordance with law. In default of such deposit the appeal shall stand dismissed. No order as to costs.
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2009 (12) TMI 1042 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... t such an argument. Admittedly, the appellant sold the shares at a much higher price than the closing price on the first day of listing. As already observed, the scrip opened at ₹ 170 on 25-9-2006 and closed at ₹ 192.30 and the appellant on his own showing sold the shares at an average price of ₹ 265.80 per share. He wants the closing price on the first day of listing to be taken into consideration for assessing the quantum of penalty in terms of Section 15J of the Act. This cannot be done. The price at which the shares were actually sold is the one which should be taken into consideration for the purposes of assessing the quantum of penalty. No fault can, thus, be found with the order of the adjudicating officer. Having regard to the fraudulent conduct of the appellant, we are of the view that this is not a fit case in which the quantum of penalty should be reduced. 6 . In the result, both the appeals fail and they stand dismissed with no order as to costs.
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2009 (12) TMI 1041 - SUPREME COURT
Application for grant of anticipatory bail - Forgery - offences punishable under Sections 420, 467, 468, 471 and 120B Indian Penal Code - HELD THAT:- We are of the view that the role of the Respondent No. 1 in the entire episode did not entitle him to the relief of Anticipatory Bail, much less a blanket order of bail. However, that is now a closed chapter. But what is of relevance is whether the High Court should have worded its order in such a way that it could be interpreted to mean, as has been done by all concerned, that the Respondent No. 1 was not required to even appear and surrender before the Court during the entire investigation stage and the trial. Taking advantage of the same, the Respondent No. 1 has successfully avoided the Court from the very initial stage of investigation and even the trial. Such kind of an order is not contemplated u/s 438 Cr.P.C. as has been repeatedly explained by this Court. The said position has been clearly enunciated in Adri Dharan Das's case [2005 (2) TMI 817 - SUPREME COURT].
Section 438 Cr.P.C. contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the Court and pray for regular bail. On the strength of an order granting Anticipatory Bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court. If what has been submitted on behalf of the appellant that the Respondent No. 1 has never appeared before the trial court is to be accepted, it will lead to the absurd situation that charge was framed against the accused in his absence, which would defeat the very purpose of Sub-section (2) of Section 240 Cr.P.C.
Thus, the order of the High Court dated 3rd July, 2006, is modified to the extent that the Respondent No. 1 shall surrender before the Trial Court forthwith and pray for regular bail and the Trial Court shall dispose of the same on merits, in accordance with law, before proceeding further with the trial.
The appeal is allowed to the above extent.
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2009 (12) TMI 1040 - BOMBAY HIGH COURT
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... ... ..... f the company which is still in existence. 62. The company is not party to the arbitration agreement. The issue of nonjoinder or misjoinder in such arbitration petition just cannot be the reason to refuse the interim order or measure if case is made out. Even otherwise, the petitioner has 51% shares of the company. The respondent has 49% shares. This is not derivative proceeding by the minority shareholders. 63. Both the parties have nominated their respective Arbitrators and now as per the agreement, the ICC (the International Chamber of Commerce) will take further steps to appoint their Chairman. 64. In view of above, as the parties have already proceeded to appoint Arbitrator/Arbitral Tribunal, I am inclined to confirm prayer (a) as already granted till the Constitution of the Arbitral Tribunal and eight weeks thereafter with liberty to the parties to apply for appropriate order or relief. 65. All points are kept open. 66. The Petition stands allowed accordingly. No costs.
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2009 (12) TMI 1039 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... t bear thumb impressions and signatures of Avtar Singh. Similar is the assertion of DW3 with regard to Ex.D6, Ex.D7, Ex.D8, Ex.D9, Ex.D10, Ex.D11, Ex.D12, Ex.D12-A, Ex.D12-B, Ex.D14, Ex.D15, Ex.D16, Ex.D17, Ex.D18, Ex.D19 and Ex.D20. As such no evidentiary value could be attached to these documents as well." It is also submitted that the aforesaid findings have not been even referred to while passing the judgment of reversal by the learned first Appellate Court. The second question of law is thus answered that photostat copy of document is neither a primary nor a secondary evidence. Original document is primary evidence and a copy thereof can be led as secondary evidence in accordance with the provisions of Section 65 of the Indian Evidence Act, 1872. Hence, judgment and decree of the first Appellate Court are both contrary to the settled law, therefore, the same is hereby set aside and judgment and decree of the trial Court is restored. The appeal is allowed with costs.
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2009 (12) TMI 1038 - BOMBAY HIGH COURT
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... ... ..... developers and interviewing them. Even the proposed development agreement to be entered with the Developer (respondent No. 1) was approved by the General Body. The appellants raised untenable pleas to cause obstruction and have belatedly filed proceedings in the Co-operative Court as a counter blast only to protract the redevelopment work to be carried out by the respondent No. 1 herein. 21. Accordingly, we find no infirmity in the conclusion reached by the Learned Single Judge in making the Petition absolute in terms of prayer clause (a) in the fact situation of the present case. 22. In our opinion, this Appeal is devoid of merits. The same deserves to be dismissed. At the same time, we would clarify that any observation in this decision shall not be treated as an expression of opinion one way or the other in the pending proceedings. The same will have to be proceeded on its own merits in accordance with law. 23. Hence, this Appeal is dismissed with costs. Appeal dismissed.
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2009 (12) TMI 1037 - ITAT AHMEDABAD
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... ... ..... acquired by the assessee. That merely because the deed was registered the transaction in question would not assume a different character. The lease rent was very nominal. By obtaining the land on lease the capital structure of the assessee did not undergo any change. The assessee only acquired a facility to carry on business profitably by paying nominal lease rent. (8) In light of the aforesaid findings of fact and the ratio of the Apex Court decisions, the court does not find this to be a case which warrants interference. Even the Assessing Officer has recorded that the payment was for use of land. There is no legal infirmity committed by the Tribunal.” 23. Respectfully following the above decision of Jurisdictional High Court, we hold in favour of the assessee that lease rental paid are revenue in nature and are allowable. This ground of assessee is allowed. 24. In the result, the appeal is partly allowed as stated above. Order pronounced in Open Court on 31/12 /2009
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2009 (12) TMI 1036 - ITAT MUMBAI
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... ... ..... e in the computation of income. In our opinion, this decision is of no assistance to the department. 15. As regards the observation of learned Commissioner in regard to valuation aspect, it is evident from the assessment order that the assessing officer has duly taken into consideration the valuation as adopted by the Departmental Valuation Officer in paras 10.1 and 10.2 of his order and, therefore, it cannot be held that there is no application of mind on this issue. Learned Counsel for the Assessee has, inter alia, relied on the decision of Ahalya Trading (P) Ltd. (supra), wherein it has been held that if after due deliberation of all other issues, the assessing officer does not make any addition/disallowance to the returned income, then it cannot be said that there was no application of mind by the assessing officer. We, accordingly, set aside the order of learned Commissioner and allow the appeal of the Assessee. 16. In the result, appeal filed by the Assessee is allowed.
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2009 (12) TMI 1035 - ITAT BANGALORE
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... ... ..... specific direction to work out the taxable income in pursuance of peak credit method and to conclude the assessment, after affording a reasonable opportunity to the assessee of being heard. It is ordered accordingly. 9.1. As regards the ground raised by the assessee on charging of interest u/s 234A and 234B of the Act, we hold it to be consequential and, therefore, we dismiss this ground. 9.2. On examining the ground raised by the assessee for award of cost in prosecuting the appeal and to refund of institution fees, we are of the view that the assessee has over-stepped, looking at the conduct of the assessee during the course of assessment proceedings. The assessee has not come up clean with all the facts either before the assessing authority or even at this stage. Therefore, we dismiss this ground with these observations. 10. In the result, the assessee’s appeal is partly allowed for statistical purpose. Pronounced in the open court on this 30th day of December, 2009.
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2009 (12) TMI 1034 - ITAT, DELHI
Interest paid on late deposit of service-tax with Government account - AO treated above amount as a penalty and disallow the same - CIT(A) held that payment made was of compensatory nature and therefore, permissible as a business deduction, thus deleted the disallowance - HELD THAT:- Following the decision in the case of Mahalakshmi Sugar Mills.[1980 (4) TMI 1 - SUPREME COURT], examined the question whether interest paid on delayed payment of "cess" was a penalty. After considering relevant statutory provisions, it was held that it was compensatory and therefore, a permissible deduction. We have examined relevant provisions of section 75 and are of the view that interest paid for the delayed payment of service-tax is compensatory and has the same character as service-tax. There is no dispute that service-tax is a permissible deduction. In our opinion, the interest should also be allowed in the same manner. In the light of above discussion, we uphold the order of CIT(A) on ground No. 1.
Nature of expenditure - Enduring benefit in acquiring logo - business deduction or not? - whether by making payment in question, the assessee has acquired any enduring benefit - HELD THAT:- It is quite evident from above that Messee Dusseldorf GmbH permitted the assessee the use of logo for limited period between 24th to 27th Sept., 2003 and between 5th Dec, 2003 to 9th Dec, 2003 at trade fairs held at Hyderabad. No enduring benefit was received by the assessee. Expenditure was incurred wholly and exclusively for purposes of business and was rightly allowed by the learned CIT(A) as a revenue deduction. We confirm his finding and dismiss the second ground of appeal also.
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2009 (12) TMI 1033 - MADHYA PRADESH HIGH COURT
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... ... ..... s apparent that the reasons which are required to be given by the Transferring Authority on the objections raised by the assessee against the proposal of transfer should have a nexus to the proposal of transfer. The aforesaid reasons should be self explanatory. 10. However, in the present case, we find that the impugned order, Annexure P-1, ordering the transfer of assessment proceedings of the present petitioners is totally cryptic and non-speaking order and does not contain any reasons to come to the aforesaid conclusion. 11. Keeping in view the aforesaid facts and circumstances of the case, but without commenting on the merits of the controversy, we deem it appropriate to allow the present petition and quash the order Annexure P-1, passed by the Commissioner of Income-tax-1, Indore. The Commissioner of Income-tax-1, Indore, however, would be at liberty to pass a fresh order under section 127(1) of the Act, if so desired, in accordance with law. 12. Disposed of accordingly.
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2009 (12) TMI 1032 - SUPREME COURT
Option to switch over to pension scheme instead of continuing under the Contributory Provident Fund Scheme - Retired railway employee pension scheme - Information of the availability of option - Whether the respondent was entitled to exercise an option to switch over pension scheme, beyond the stipulated last date, that to twenty two years after retirement and receipt of the retirement dues under the Contributory Provident Fund Scheme? - HELD THAT:- In this case, the facts that the employee was in service of the Railways itself before and at the time of retirement and was working as the Head of the Department and was receiving all communications relating to option for being circulated to all employees in his department. Therefore, the question of respondent not being aware of the option does not arise.
The respondent chose not to exercise the option and continued to remain under the Contributory Provident Fund Scheme, and more important, received the entire PF amount on his retirement. In fact, as noticed, in his application before the Tribunal the respondent refers to all the options. He is careful to say that he was not 'intimated' about the contents of the last order relating to extension of the option, but does not say that he was unaware of the order extending the benefit of option.
The respondent consciously chose not to exercise the option as he admittedly thought that receiving a substantial amount in a lump sum under the provident fund scheme (which enabled creation of a corpus for investment) was more advantageous than receiving small amounts as monthly pension under the pension scheme. In those days (between 1957 when the pension scheme was introduced and 1976 when the respondent retired) the benefits under the provident fund scheme and pension scheme were more or less equal; and there was a general impression among employees that having regard to average life expectancy and avenues for investment of the lump sum PF amount, it was prudent to receive a large PF amount on retirement rather than receive a small pension for a few years (particularly as there was a ceiling on the pension and as dearness allowance was not included in the pay for computing the pension).
Having enjoyed the benefits and income from the provident fund amount for more than 22 years, the respondent could not seek switch over to pension scheme which would result in respondent getting in addition to the PF amount already received, a large amount as arrears of pension for 22 years (which will be much more than the provident fund amount that will have to be refunded in the event of switch over) and also monthly pension for the rest of his life. If his request for such belated exercise of option is accepted, the effect would be to permit the respondent to secure the double benefit of both provident fund scheme as also pension scheme, which is unjust and impermissible.
The validity period of the option to switch over to pension scheme expired on 31.12.1978 and there was no recurring or continuing cause of action. The respondent's representation dated 8.10.1998 seeking an option to shift to pension scheme with effect from 1976 ought to have been straight away rejected as barred by limitation/delay and laches.
Even on merits, the application has to fail. In Krishena Kumar v. Union of India [1990 (7) TMI 366 - SUPREME COURT] , a Constitution Bench of this Court considering the options given to the Railway employees to shift to pension scheme, held that prescription of cut off dates while giving each option was not arbitrary or lacking in nexus. This Court also held that provident fund retirees who failed to exercise option within the time were not entitled to be included in the pension scheme on any ground of parity.
Therefore, the respondent who did not exercise the option available when he retired in 1976, was not entitled to seek an opportunity to exercise option to shift to the pension scheme, after the expiry of the validity period for option scheme, that too in the year 1998 after 22 years.
Claim on the basis of guarantee of equality - When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may be not entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief.
The appeal is therefore allowed and the orders of the Tribunal and the High Court are set aside and the original application of the respondent before the tribunal is dismissed.
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2009 (12) TMI 1031 - DELHI HIGH COURT
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... ... ..... respect of shared accommodation. This offer has neither been accepted by the other side, i.e. Jyotsana Sharda, his wife nor approved by the Court even. The Court does not find that there is any infirmity in the impugned order by the learned Additional Sessions Judge upholding the order of the learned Magistrate both with regard to the payment of maintenance of ₹ 10,000/- to the child of Gaurav Sharda or with regard to grant of right of residence to Jyotsana Sharda in the accommodation at Sushant Estate, Gurgaon. Both these arrangements are interim in nature, and therefore, cannot be varied at this stage. 22. For these reasons mentioned above, the criminal revision petition which has been filed by the husband Gaurav Sharda is without any merit and accordingly the same is dismissed. 23. Expression of any opinion hereinbefore shall not be treated as an expression on the merits of the case. It is further directed that the learned Trial Judge will try to expedite the matter.
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2009 (12) TMI 1030 - ITAT DELHI
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... ... ..... taken or accepted any loan which he may or may not repay. The amount is received rather by way of giving assistance to the person and cannot be attracted strictly as loan or advance repayable on demand. The assessee was in urgent need of money for payment of purchase consideration for agricultural land. The assessee as well as his mother, wife and uncle are basically an agriculturists and though having bank account , on the moment it was not feasible to put the money in bank account, then to obtain cheques and then again after clearing such cheques to withdraw from bank account for further payments for purchase of agricultural land. In such circumstances if the assessee acted bonafide, it will amount to a reasonable cause within a meaning of 273B of the act was as to absolve the assessee from clutches of penal provision u/s 271D of the Act. We therefore confirm the order of Ld. CIT (A). 8. In the result the appeal is dismissed. Order pronounced in the open court on 18.12.2009
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2009 (12) TMI 1029 - DELHI HIGH COURT
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... ... ..... ndatory. 31. In absence of any agreement or statutory provision or a mercantile usage, interest payable can be only at the market rate. Such interest is payable upon establishment of totality of circumstances justifying exercise of such equitable jurisdiction. See Municipal Corporation of Delhi v. Sushila Devi (1999) 2 SCR 1198. As was observed in para 30 referred to above, if the claim of interest is on equitable ground, a written demand therefor is imperative. 10. In the instant case admittedly no such written demand has been made. In terms of Section 11BB(1), the respondent- assessee is entitled to interest from 12th April, 2004 to 26th August, 2004. The quantum shall be worked out and the amount shall be paid within a period of four weeks. The order of the High Court is accordingly modified and the appeal is allowed to the aforesaid extend. No costs. 9. Bound by the aforesaid judgment, as we are, we find no merit in the present writ petition which is dismissed. No costs.
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2009 (12) TMI 1028 - DELHI HIGH COURT
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... ... ..... iabilities of group companies of GHCL Group, the company, in any case, is facing trial for criminal breach of trust on the allegation that the letter dated 1st March, 2008 was not written to it by the complainant. No separate offence of cheating is, however, made out against it by making these adjustments. 21. For the reasons given in the preceding paragraphs, the impugned order dated 27th September, 2008, to the extent it summons the petitioners Nirmal Bhanwarlal Jain, Venkataraman Rajamani, Nimish Ramesh Mehta, Nilesh Shivji Vikamsey, Kranti Sinha and Arun Kumar Purwar for the offences punishable under Sections 415/409/34/120B of IPC and further to the extent it summons the company India Infoline Ltd. under Section 415 of IPC is hereby set aside. The learned Magistrate will, however, proceed with the trial against the accused India Infoline Ltd. under other Sections of IPC. The parties are directed to appear before the learned Magistrate at 10.00 am on 21st December, 2009.
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2009 (12) TMI 1027 - SUPREME COURT
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... ... ..... n the appellant has executed Conveyances in respect of portions of the suit property, thereby supporting the case of the respondent that the Deed of Family Settlement dated 8th February, 1976, had not only been accepted by the parties, but had also been acted upon. 25. In such circumstances, we are not inclined to interfere with the order passed by the High Court, but we are also concerned that the suit should not be delayed on one pretext or the other, once such interim order is granted. 26. We, accordingly, dispose of the appeal by directing the Trial Court to dispose of the pending suit within a year from the date of communication of this judgment. In the meantime, the co-sharers to the suit property shall not create any third party rights or encumber or transfer their respective shares in the suit property in any manner whatsoever and all transactions undertaken in respect thereof shall be subject to the final decision in the suit. 27. There will be no order as to costs.
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2009 (12) TMI 1026 - BOMBAY HIGH COURT
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... ... ..... astiblends India Limited Vs. Additional Commissioner of Income Tax & Anr., decided on 16th October, 2009. 2. In view of the above, all the questions are answered in favour of the revenue and against the assessee. Appeal is dismissed with no order as to costs.
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2009 (12) TMI 1025 - ITAT DELHI
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... ... ..... of the assessee company was on account of share application money. Once, we hold that, the order of the CIT(A) can not be sustained because there is no finding given by the CIT(A) as to how the receipt in the present case, it is receipt of share application money and not of loan as held by the AO. We, therefore, hold that in the facts of the present case, the cash of ₹ 1 crore received by the assessee company was not on account of share application money because there is no authorized share capital at the time of such receipt and even after receipt of this amount, authorized share capital was not increased till the end of this year. Hence, none of the judgments followed by AO or by CIT(A) is applicable and the penalty is leviable u/s 271D for default u/s 269SS. We, therefore, reverse the order of the CIT(A) and restore the penalty order. 7. In the result, the appeal of the revenue is allowed. 8. Order pronounced in open court on 10.12.209 on the date of hearing itself.
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