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Showing 21 to 40 of 1382 Records
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2014 (7) TMI 1368 - SC ORDER
Violation of FEMA - Imposition of Penalty - Definition of Person u/s 2(u) - penalty was imposed on the President of the Board of Control for Cricket in India for the violation of the Act - Matter remanded back with direction to Special Director, Directorate of Enforcement first to form his opinion, after recording reasons, whether to proceed against the petitioner with regard to the impugned 11 show cause notices - HELD THAT:- Special leave petition is dismissed.
Any observation made in the impugned order in regard to the merit of the case shall have no bearing at the later stage of the proceedings.
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2014 (7) TMI 1367 - MADRAS HIGH COURT
Violation of principles of Natural justice - refund claim - matter remitted without passing any conditional order and in any event, if the amount of input tax credit is considered - HELD THAT:- It has to be pointed out, at this stage, that, once it has been found that the orders impugned in the writ petitions are unsustainable on account of violation of principles of natural justice, it is wholly unnecessary to impose any condition while remitting the matter for fresh adjudication and in the considered opinion of this Court, the direction given to the appellant/writ petitioner to deposit 10% of the tax amount as claimed in the demand notice, as a condition precedent to enquire into the matter, is unsustainable and the said portion of the order is liable to be set aside.
The impugned order is set aside insofar as directing the appellant/writ petitioner to deposit 10% of the tax claimed in the demand notice and in other respects, the common order dated 06.06.2014 passed in the writ petitions, stands sustained - Appeal allowed.
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2014 (7) TMI 1366 - ITAT PUNE
Deduction u/s 80IB - project undertaken by the assessee was a mixed project of piece-meal sanctions - Whether residual project of development and construction undertaken by assessee complied with the requirements of section 80IB(10)? - assessee pointed out that obtaining of multiple building sanctions, does not result in the project being ineligible for section 80IB(10) benefits - CIT-A allowed the deduction - HELD THAT:- As some of the plots initially comprised in the layout were sold as such would not defeat assessee’s entitlement for deduction u/s 80IB(10) of the Act so long as the conditions stipulated in section 80IB(10) of the Act are satisfied qua the residual project undertaken by the assessee. Factually speaking, it is not in dispute that the profit/loss resulting on account of sale of certain plots as such has not entered assessee’s claim of deduction u/s 80IB(10) of the Act. Therefore, in our view, the CIT(A) made no mistake in rejecting the aforesaid stand of the Assessing Officer and proceeding to examine whether the residual project of development and construction undertaken by assessee complied with the requirements of section 80IB(10).
On obtaining of multiple building sanctions, in our view, the same cannot be held against the assessee. As clarified that the housing project shall be deemed to have been approved on the date of which the building plan of such housing project is first approved by the local authority. Therefore, to say that because assessee had obtained multiple approvals and thus is disentitled for section 80IB(10) benefits, is against the legislative mandate. Hence, existence of multiple building plan approvals cannot be held against the assessee. Furthermore, the requirement that the project is to be on a size of a plot of land of a minimum area of one acre is concerned, the same has also to be examined not with respect to each and every individual building plan approval but with respect to the housing project as a whole. Thus, in the present case, the Assessing Officer erred in considering the size of individual plots of land to examine as to whether it has area of one acre or more. On this aspect also, we find that the CIT(A) made no mistake in disregarding the objection of the Assessing Officer.
Period specified for complying the construction of the project - As evident that with regard to the development of the housing project undertaken by the assessee, last of the completion certificate is dated 31.03.2011. The claim of the Assessing Officer is that a completion certificate has also been issued by the local authority on 02.09.2011, which is the last certificate. Even if the said certificate is taken into consideration, yet it does not breach the outer limit of 31.03.2012 which is stipulated date in the present case for completion of project, as seen earlier. However, the claim of the assessee and which has been upheld by the CIT(A) is that the said completion certificate pertains to construction on a plot, which was undertaken by the purchaser himself. Assessee explained that the said plot was sold as such and the purchaser obtained the building sanction and the assessee had no role to play in the development and construction of the said plot. The aforesaid factual finding is not controverted by the Revenue before us. Accordingly, the stand of the CIT(A) on this aspect is also hereby affirmed.
As a result of the aforesaid discussion, we find that on all the aspects raised by the Assessing Officer, the CIT(A) made no mistake in upholding assessee’s plea for the claim of deduction u/s 80IB(10) of the Act with respect to its housing project, ‘Flora City’ undertaken at Talegaon Dabhade, Pune. Thus, the order of the CIT(A) is hereby affirmed. - Decided in favour of assessee.
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2014 (7) TMI 1365 - ITAT AHMEDABAD
Non prosecution of appeal by assessee - HELD THAT:- As on the date of hearing i.e. on 15-07-2014 none appeared on behalf of Assessee nor an adjournment application was filed on behalf of the Assessee which indicates that the Assessee is no more interested in prosecuting the appeal, therefore, following the decision in the case of CIT Vs Multiplan India (Pvt.) Ltd., [1991 (5) TMI 120 - ITAT DELHI-D] dismiss the appeal of the assessee. The assessee shall however be at liberty to approach the Tribunal for recalling of this order, if prevented by sufficient cause for non-appearance on the date of hearing. Assessee appeal dismissed.
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2014 (7) TMI 1364 - SUPREME COURT
Dishonor of three Cheques - since the Respondent has undergone one year's sentence, he is not willing to pay any amount to the complainant-firm - section 138 of NI Act - HELD THAT:- There are substance in the submission of learned Counsel that the High Court has shown undue leniency to the Respondent. No reasons have been assigned by the High Court for this approach. This Court has on several occasions cautioned the courts that undue leniency should not be shown to the accused facing charges under Section 138 of the NI Act - It is not the case of the Respondent that he has paid any amount to the complainant-firm during the pendency of these cases. He has shown scant regard to this Court's wishes. The amount involved is about ₹ 14,74,753/-. The Respondent should not have been, therefore, given a flea-bite sentence - the High Court should not have shown leniency to the Respondent.
Question of concurrency - HELD THAT:- It is clear from the averments made in the complaints and the judgments of the trial court and lower appellate court that the cheques in question do not relate to one single transaction - the impugned order is set aside.
The impugned order are set aside and the order of the trial court restored in all the three cases - Since the enhanced fine amounts have already been paid, there is no need to pass any order in that connection - Since the Respondent has already been released from jail after having served one year of imprisonment, he shall be taken into custody to serve the remaining sentence - appeal disposed off.
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2014 (7) TMI 1363 - ITAT KOLKATA
Loss from purchase and sale of shares holding the same as speculative loss - Whether CIT(A) has erred in holding that the assessee company’s loss from purchase and sale of share to the tune was not covered by the explanation to provisions of section 73? - HELD THAT:- As it is clear that the deployment of funds is more in the business of money lending from where the interest was earned and further the income as noted above is also from sources other than share transactions. Hence, we find no reasons to interfere in the order of the CIT(A) and same is confirmed.
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- We find that assessee has not spent any amount on interest on borrowing as at 01-04-2008 and borrowing taken this year was not utilized in investment. Assessee has earned big income from derivative transactions at Rs.5,42,61,231/- and suffered loss on investment at Rs.1,22,81,662/- i.e. total expenses claimed are only Rs.1,42,48,311/-. Dividend income being only 1.5% of gross income Rs.2,13,724/- being 1.5% of expenses can be attributed to dividend against which the company has offered Rs.241,126/-. Further, there are direct expenses at 56,023/- as calculated by A.O. will apply in view of the provisions of section 14A r.w,r 8D of the rules. In assessee’s case only Rule 8D(2)(i) is applicable and not 8D(2)(iii). Clause (ii), which clearly provides that formula giving therein is to be evoked only in a case where assessee has incurred expenditure by way of interest during the previous year which is not directly attributable to any particular income or receipt. In this case Interest payment is only Rs.4,801/-. This interest is attributable to loans not utilized for investment but for giving loans to Shakti Sugar Ltd i.e. Rs. 3,00,000/- and Rs7,00,000/- paid as security deposit to SKP Securities. Rs.37,00,000/- taken from Parkview Properties Pvt. Ltd. and Rs. 3 Lacs and Rs. 7 Lacs from Bikanna Cornmercial Pvt. Ltd. and Shahjahanpure Electric Co. Ltd. respectively. In view of the above facts, we have no alternative except to confirm the order of CIT(A) and this issue of Revenue’s appeal is dismissed.
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2014 (7) TMI 1362 - SUPREME COURT
Rejection of application to recall the Investigating Officer - Section 311 of the Code of Criminal Procedure, 1973 - HELD THAT:- The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word ‘shall’. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words ‘essential to the just decision of the case’ are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it’s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused.
The impugned order merits no interference - It is clarified that oversight of the prosecution is not appreciated by us. But cause of justice must not be allowed to suffer because of the oversight of the prosecution. It is made clear that whether deceased Rupchand Sk’s statement recorded by PW15-SI Dayal Mukherjee is a dying declaration or not, what is its evidentiary value are questions on which we have not expressed any opinion. If any observation of ours directly or indirectly touches upon this aspect, we make it clear that it is not our final opinion. The trial court seized of the case shall deal with it independently.
Appeal dismissed.
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2014 (7) TMI 1361 - TELANGANA HIGH COURT
Transaction of sale of stripes - genuine transaction or not? - addition made by AO under the head of ‘income from other sources’ - ITAT upholding the findings of the CIT(Appeals) that the transaction of sale of stripes by the respondent-assessee as a genuine transaction - HELD THAT:- The laws consistently say that initial burden to establish genuineness of the transaction lies on the assessee first. If the assessee discharges his/its onus, then the burden shifts to the Revenue to produce cogent material disproving the evidence adduced by the assessee. The learned Tribunal has taken note of the judgments on the issue, including an unreported one of High Court of Jharkhand, in Arun Kumar Agarwal (HUF) & Others, [2012 (8) TMI 398 - JHARKHAND HIGH COURT] and also in the case of C.I.T. v. Gobi Textiles Ltd. [2007 (9) TMI 226 - MADRAS HIGH COURT] wherein it has been stated the legal position as quoted by us above.
Here, on fact, the learned Tribunal found the assessee has discharged initial burden lies on it. We, therefore, do not find any element of law to interfere with the impugned judgment and order of the learned Tribunal.
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2014 (7) TMI 1360 - MADRAS HIGH COURT
Cognizance of the offences - can be termed as final order or not - permissibility of conducting further investigation as provided under Section 173(8) Cr.P.C. - HELD THAT:- A case which came up before the Orissa High Court, which is almost similar to the case on hand, was the one in KAMAL LOCHAN SEN VERSUS STATE OF ORISSA [1982 (10) TMI 221 - ORISSA HIGH COURT]. In the said case, though the report purportedly filed under Section 173(2) Cr.P.C. did not state that it was a preliminary report and investigation had not been completed, from the contents of the report the Court held that the same was not a report contemplated under Section 173(2) Cr.P.C. as the statement contained in the charge sheet itself indicated that the investigation had not been completed.
An attempt has been made on behalf of the contesting respondents to contend that the order taking cognizance of offences based on the incomplete report could be in the nature of interlocutory order against which a revision may not be maintainable and that hence the petitioners should be non-suited for the relief sought for in the revision and they should be relegated to challenge the order under Section 482 Cr.P.C. by filing a separate petition. This Court is not in a position to accept the above said contention raised on behalf of the contesting respondents. Section 482 Cr.P.C. does not restrict the inherent powers of the Court to pass any order in order to render complete justice - As such the impugned order cannot be termed a purely interlocutory order and as rightly contended by the learned senior counsel for the petitioners, it can be construed to be an intermediary order against which the revisional powers of the High Court can be invoked. Even otherwise, the restriction placed on the invocation of the inherent powers is the self-imposed restriction of the Court and in appropriate cases, even though the same will fall under the mischief of Sub-section 2 of Section 397 Cr.P.C., for avoiding miscarriage of justice, the Court can invoke its inherent jurisdiction and grant the necessary relief.
The revision petition shall stand allowed.
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2014 (7) TMI 1359 - KARNATAKA HIGH COURT
Sanction of scheme of amalgamation - no secured creditor - HELD THAT:- The certificate issued by the Chartered Accountant as at Annexure-N indicates that there is no secured creditor in respect of the applicant company and the certificate at Annexure P indicates that there is one unsecured creditor and in the same series the consent letter given by the unsecured creditor is also produced.
Where the equity and preference shareholders as also the unsecured creditor have given the consent to the scheme and there is no secured creditor, the issue of convening of the meeting would not arise - the convening of the meeting of the equity and preference shareholders as also the secured and unsecured creditor is dispensed.
Application disposed off.
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2014 (7) TMI 1358 - TELANGANA HIGH COURT
Winding up respondent for non-payment of the debt due to the petitioner - Dishonor of Cheque - HELD THAT:- Having regard to the factum of issuance of cheques by the respondent towards the debt due by it to the petitioner, the Company Petition is closed with liberty to the petitioner to seek its revival in the event either or both the cheques are dishonoured.
Petition closed.
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2014 (7) TMI 1357 - KARNATAKA HIGH COURT
Sanction of scheme of amalgamation - convention of meeting of the equity and preference shareholders as also the secured and unsecured creditor - HELD THAT:- Where the equity and preference shareholders as also the unsecured creditor have given the consent to the scheme and there is no secured creditor, the issue of convening of the meeting would not arise.
The prayer made in the application is granted. The convening of the meeting of the equity and preference shareholders as also the secured and unsecured creditor is dispensed.
Application allowed.
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2014 (7) TMI 1356 - KARNATAKA HIGH COURT
Scheme of amalgamation - convention of the meeting - HELD THAT:- Where the equity and preference shareholders as also the unsecured creditor have given the consent to the scheme and there is no secured creditor, the issue of convening of the meeting would not arise.
Accordingly, the prayer made in the application is granted. The convening of the meeting of the equity and preference shareholders as also the secured and unsecured creditor is dispensed - Application allowed.
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2014 (7) TMI 1355 - KARNATAKA HIGH COURT
Scheme of amalgamation - Application seeking that the convening of the meetings of the shareholders, secured and unsecured creditors be dispensed with - HELD THAT:- The applicant company has two equity shareholders who have on perusing the scheme consented to the same as indicated from the documents at Annexure-L series. The certificate dated 04.07.2014 (Annexure-M) issued by the Chartered Accountant indicates that the applicant company has no secured creditors. In that view consideration of the scheme would not arise. The certificate dated 04.07.2014 (Annexure-N) would indicate that the applicant company has 3 unsecured creditors and all the 3 unsecured creditors have issued their consent letters to the scheme.
When the Board of Directors have approved the scheme and subsequently, since the shareholders and unsecured creditors have perused the scheme and consented to the same and also when it is demonstrated that there is no secured creditor, the convening of the meetings would not arise.
The meetings of the shareholders, secured and unsecured creditors is dispensed.
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2014 (7) TMI 1354 - DELHI HIGH COURT
Maintainability of appeal - order of dismissal of an application under Order VII Rule 11 of the CPC is appealable order or not - HELD THAT:- The claim for damages is not such qua which enquiry is to be held nor are the damages claimed such as to which accounts are to be taken under the orders of the Court. It is for the respondent/plaintiff to quantify the damages claimed and prove the entitlement thereto. It was thus incumbent upon the respondent/plaintiff to quantify the damages/compensation for recovery of which the suit was filed and in the absence thereof, no enquiry into the claim for damages can be conducted. Similarly, if the respondent/plaintiff presses the claim for damages, the respondent/plaintiff is also required to value the same for the purposes of court fees and jurisdiction and which has also not been done. The counsel for the respondent/plaintiff does not controvert that ad-valorem court fees is payable on the damages so claimed.
The respondent/plaintiff, without appropriately valuating the suit for the relief of recovery of damages/compensation claimed and without quantifying the damages/compensation claimed and paying appropriate court fees thereon is not entitled to have the claim for damages/compensation adjudicated.
Appeal allowed - decided in favor of appellant.
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2014 (7) TMI 1353 - ITAT MUMBAI
Computation of taxable profits - Exclude from the taxable profits, the sales tax exemption benefit which is included in Sales and which is taxed in the assessment order as part of profits of the business - HELD THAT:- We find that an identical issue has been adjudicated by the Tribunal [2011 (8) TMI 1154 - ITAT MUMBAI] and the matter is restored to the record of the Assessing Officer to examine the additional evidence filed by the Assessee and then decide the issue as per law. Since the issue is identical for both the years, therefore, additional ground No.1 raised for the assessment year 1999-00 also stands disposed off in the same terms and directions to AO as given in para 27 to 27.2 of the impugned order. Accordingly the additional ground No.1 stands disposed off.e
Expenditure incurred on assets not owned - allowable revenue or capital expenses - HELD THAT:- As identical issue has been decided by the Tribunal for the assessment year 1995-96 and by following the order of this Tribunal the AO has allowed the claim of the Assessee while passing the order giving effect to the order of this Tribunal. We find that AO has already allowed the claim of the Assessee as raised in additional ground No.2 for the assessment year 1999-00 [2011 (8) TMI 1154 - ITAT MUMBAI] while passing the giving effect order dated 28/03/2013. Therefore, the additional ground No.2 raised for the assessment year 1999-00 becomes infructuous as AO has allowed the same being consequential to the assessment year 1995-96 in which the said claim was allowed by this Tribunal.
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2014 (7) TMI 1352 - SUPREME COURT
Recovery of excess money from the pensionary benefit of the Respondent-white washer - wrong fixation of pay - whether the Government is entitled to recover from an employee any payment made in excess of what the employee is otherwise entitled to, in the absence of any fraud or misrepresentation on the part of the employee? - HELD THAT:- The observations made by the Court not to recover the excess amount paid to the Appellant-therein were in exercise of its extra-ordinary powers Under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice.
In Chandi Prasad Uniyal's case [2012 (8) TMI 928 - SUPREME COURT], a specific issue was raised and canvassed. The issue was whether the Appellant-therein can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on his part. The Court after taking into consideration the various decisions of this Court had come to the conclusion that even if by mistake of the employer the amount is paid to the employee and on a later date if the employer after proper determination of the same discovers that the excess payment is made by mistake or negligence, the excess payment so made could be recovered.
Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law - The Court have compartmentalized and differentiated the relief in the operative portion of the judgment by exercise of powers Under Article 142 of the Constitution as against the law declared. The directions of the Court Under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent.
This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case - the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus there is no conflict in the views expressed in the first two judgments and the latter judgment.
Matters sent back to the Division Bench for its appropriate disposal.
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2014 (7) TMI 1351 - BOMBAY HIGH COURT
Validity of reopening of assessment u/s 147 - Non disposal of objection to the reasons filed by an assessee by a speaking order - HELD THAT:- A law laid down by the Supreme Court in the case “GKN Driveshrafts (India) Ltd. [2002 (11) TMI 7 - SUPREME COURT] has not been followed by the Assessing Officer. The aforesaid decision requires the Assessing Officer not only to furnish reasons for the proposed reopening of the assessment but also has to dispose of the objection to the reasons filed by an assessee by a speaking order.
We set aside the Assessment order passed in respect of Assessment year 2008-09. We note that the petitioner had, by diverse communications filed their objections to the grounds in support of the impugned notices furnished by the Assessing Officer. We permit the petitioner to file a consolidated objections to both the impugned notices within a period of two weeks from today before the Assessing Officer. The Assessing Officer, thereafter, will dispose of the objections filed by the petitioner in respect of both the impugned notices.
Assessing Officer would not commence re-assessment proceedings for a period of four weeks from the date of communication of the order disposing of the objections filed by the petitioner.
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2014 (7) TMI 1350 - BOMBAY HIGH COURT
Dishonor of Cheque - funds insufficient - discharge of legally enforceable debt or not - rebuttal of presumption - offence punishable under Section 138 of the Negotiable Instruments Act - HELD THAT:- It is revealed that the legal notice was issued by respondent No. 1 to all the applicants on their address and in spite of intimation given to the applicants by the Postal Department as they were not claiming the notice, the notice was returned to respondent No. 1 with endorsement "not claimed". It is further found averred in the complaint that all the applicants are equally responsible for the offence committed by them and they have issued the said cheque to discharge their legal liability towards respondent No. 1.
There are no substance in the criminal applications as admittedly the applicants are Directors of applicant No. 1 Company and proviso to Section 141 of the Negotiable Instruments Act can come into play in favour of applicants to save themselves from the punishment, if it is proved in the trial that the offence was committed without their knowledge. The applicants, who are Directors of applicant No. 1 Company, can also save themselves from punishment if they prove that they have exercised all due diligence to prevent the commission of such offence and also cheque involved in the prosecution is issued by the applicant No. 2 without their consent. The presumption under Section 139 of the Negotiable Instruments Act is that respondent No. 1 received the said cheque towards discharge of legal liability or debt. The burden to rebut the said presumption is on the applicant No. 1 Company and it can only be rebutted during trial.
The criminal applications are dismissed.
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2014 (7) TMI 1349 - KERALA HIGH COURT
Oppression and mismanagement - transfer of plaint schedule properties by way of sale deeds - sale deed was executed with the intention of transferring the plaint schedule property to somebody else for higher consideration - sale deed is a sham document without consideration or not - maintainability of suit in view of Sections 397 and 398 of the Companies Act - HELD THAT:- Going by the nature of the relief sought in the suit, it cannot be said that the complaint of the appellant was in respect of a continuing wrong or that the Company Court will be able to grant an effective relief sought for, by her as against the third parties, that too in respect of past transactions. It can be seen that there is no specific exclusion to seek remedies from a civil court. At the most it can be said that remedies are available under the Companies Act as well as under General Law of Contract from the civil court and there is an element of election for the party to approach appropriate forum, considering the nature of the relief he is seeking.
In the decision reported in Dwarka Prasad Agarwal (D) by Lrs. and Another Vs. Ramesh Chandra Agarwala and Others [2003 (7) TMI 481 - SUPREME COURT], the Honble Supreme Court while considering the question of jurisdiction for the civil court in a dispute in-between Directors of a company in a suit for eviction and permanent injunction, alleging illegal dispossession from a printing press, referring to the provisions contained in Sections 9 and 10 of the Companies Act, it was held that the above provisions do not oust the jurisdiction of the civil court.
The exclusion of the jurisdiction of the civil courts to entertain a civil cause cannot be assumed unless a particular statute contains an express provision to that effect or leads to a necessary and inevitable implication of that nature. Merely because the Companies Act provides for certain remedies it cannot be said that the jurisdiction of civil courts to deal with a case brought before it in respect of some of the matters covered by the Act is barred - the prerequisites to approach the Company Law Board and for grant of an effective remedy under the Companies Act are not available in the present case. The appellant is seeking a relief against all the remaining Directors of the company against a past transaction, which does not amount to a continuing wrong. Therefore, an effective remedy is available to her only before the civil court, for which there is no specific ouster in the Companies Act. Moreover when the appellant can invoke her statutory rights under the Company Law as well as the rights under the common law, she has got every freedom to elect the forum which is more appropriate. The suit filed by her cannot therefore be dismissed as not maintainable.
As the suit was dismissed on a preliminary issue, the same is remanded to the court below for further proceedings - appeal allowed.
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