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2014 (12) TMI 1418

Rejection of books of accounts - GP Estimation - AO estimated the G.P. at 12.34% on sales of dolomite and 10% G.P. on job work - On appeal, the CIT(A) adopted G.P. @ 10% in respect of sale of dolomite and @ 8% in respect of job work.

HELD THAT:- It is true that G.P. rate cannot be uniform in all the years and it varies from year to year depending on several factors such as local market condition, fluctuation in rates etc. It is also observed that the A.O. has not cited any comparable case while estimating G.P. in respect of sale of dolomite.

As regards the job work undertaken by the assessee, it is stated that this is the first year for the assessee to undertake this work and the AO failed to cite any comparable case while applying 10% G.P. on job work. It is seen that the ld. CIT(A) has sustained the addition of Rs. 3,82,023/- which appears to be on higher side particularly considering the facts and circumstances of the present case.

Nature of the business carried out by the assessee, we think it proper to restrict the addition on both counts.
2014 (12) TMI 1417

The Supreme Court of India in 2014 (12) TMI 1417 - SC Order, condoned delay and admitted the case, tagging it with S.L.P. (C) No. 29712 of 2014.
2014 (12) TMI 1416

Whether a party to an arbitration proceeding may be permitted to raise objections Under Section 34 of the Arbitration and Conciliation Act, 1996, with regard to the jurisdiction of the Arbitral Tribunal after the stage of submission of the written statement? - HELD THAT:- All objections to jurisdiction of whatever nature must be taken at the stage of the submission of the statement of defence, and must be dealt with Under Section 16 of the Arbitration Act, 1996. However, if one of the parties seeks to contend that the subject matter of the dispute is such as cannot be dealt with by arbitration, it may be dealt Under Section 34 by the Court.

Though, it cannot be said that the upholding of a state law would not be part of the public policy of India, much depends on the context. Where the question arises out of a conflict between an action under a State Law and an action under a Central Law, the term public policy of India must necessarily understood as being referable to the policy of the Union. It is well known, vide Article 1 of the Constitution, the name 'India' is the name of the Union of States and its territories include those of the States.

There are no hesitation in coming to the conclusion that the amendment application raised a ground which was contrary to law and ought not to have been allowed by the High Court.

Appeal allowed.
2014 (12) TMI 1415

Monetary benefits in excess of the entitlement - whether all the private Respondents, against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer? - HELD THAT:- The instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee.

The orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction Under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.

It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs. 700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M. Sc., M. Com. plus a first or second class B. Lib. Science or a Diploma in Library Science, the degree of M. Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed - This Court did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties.

Following few situations summarised, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
2014 (12) TMI 1414

TP Adjustment - comparable selection - whether ITAT is correct in law in rejecting the comparable companies adopted by the TPO which was selected by the Tax Payer itself and remitting the case to the Assessing Officer for fresh consideration in terms of its directions to determine the subject issue? - HELD THAT:- Tribunal, in relation to the aforesaid question, has rendered a fact finding which instances are acceptable or non-acceptable. We do not think that we should substitute our appreciation of fact in the absence of any allegation of perversity. We have seen the judgment and order and the findings of the learned Tribunal and it does not appear to us that the same are not based upon without any material. We do not find any element law to decide in this appeal.
2014 (12) TMI 1413

Requirement of obtaining of licence under the relevant Licensing Order/s of the State Government or under the Karnataka Police Act, 1963 - HELD THAT:- The issues raised in this petition are squarely covered by this Court’s order THE MEDIA N MEMBERS CLUB VERSUS STATE OF KARNATAKA, THE COMMISSIONER OF POLICE, THE JOINT COMMISSIONER OF POLICE, THE DEPUTY COMMISSIONER OF POLICE, THE ASSISTANT COMMISSIONER OF POLICE, THE INSPECTOR OF POLICE, BANGALORE [2014 (10) TMI 1068 - KARNATAKA HIGH COURT] and RELIANCE RECREATION CLUB VERSUS THE SUPERINTENDENT OF POLICE, THE DEPUTY SUPERINTENDENT OF POLICE, THE CIRCLE INSPECTOR OF POLICE, THE SUB INSPECTOR OF POLICE, THE ASST. SUB INSPECTOR OF POLICE [2014 (12) TMI 1412 - KARNATAKA HIGH COURT] where it was held that where it was held that Regulatory mechanism is required, to check the illegal activities, if any, in the club(s) / association(s), registered as a society, under the Karnataka Societies Registration Act. When the club/association allows its member(s) to play games with stakes or make any profit or gain out of such games, police has the authority to invoke the provisions of the Act.

The petitioner shall install within a period of six weeks, CC TV cameras, at all the places of access to its members and also at all the places, wherein games(s) is / are played by the members. The CC TV footage of atleast prior 15 days’ period shall be made available by the petitioner, to the police, as and when called upon to do so - petition disposed off.
2014 (12) TMI 1412

Requirement of obtaining of licence under the relevant Licensing Order/s of the State Government or under the Karnataka Police Act, 1963 - HELD THAT:- The issues raised in this petition are squarely covered by this Court’s order THE MEDIA N MEMBERS CLUB VERSUS STATE OF KARNATAKA, THE COMMISSIONER OF POLICE, THE JOINT COMMISSIONER OF POLICE, THE DEPUTY COMMISSIONER OF POLICE, THE ASSISTANT COMMISSIONER OF POLICE, THE INSPECTOR OF POLICE, BANGALORE [2014 (10) TMI 1068 - KARNATAKA HIGH COURT] where it was held that where it was held that Regulatory mechanism is required, to check the illegal activities, if any, in the club(s) / association(s), registered as a society, under the Karnataka Societies Registration Act. When the club/association allows its member(s) to play games with stakes or make any profit or gain out of such games, police has the authority to invoke the provisions of the Act.

The petitioner shall install within a period of six weeks, CC TV cameras, at all the places of access to its members and also at all the places, wherein games(s) is / are played by the members. The CC TV footage of atleast prior 15 days’ period shall be made available by the petitioner, to the police, as and when called upon to do so - petition disposed off.
2014 (12) TMI 1411

Penalty u/s 271(1)(c) - additions in the Net Profit Ratio @5% on estimate basis as the assessee could not produce the relevant details asked for, during the course of assessment proceedings due to the fact that they were misplaced by the Accountant - meaning of word ‘concealment’ and ‘inaccurate’ - HELD THAT:- CIT(A) has rightly applied the decision of Reliance Petro Products Ltd [2010 (3) TMI 80 - SUPREME COURT] which is squarely applicable in the present case of the assessee as held that penalty based merely on the finding given in assessment order is not valid.

CIT(A) has rightly applied the decision of the Hon’ble Delhi High Court decision in the case of CIT vs. JK Synthetic Ltd. [1996 (2) TMI 123 - DELHI HIGH COURT] wherein it was held when the concealment proceedings u/s. 271(1)(c) in a case is purely based on assessment order penalty cannot be levied.

Levy of penalty in this case is not justified particularly when the assessment was framed on the income determined on estimate basis and without bringing any material on record to substantiate that the assessee willfully and intentionally concealed the income or furnished the inaccurate particulars of the income, hence, we do not see any reason to interfere with the order of the Ld. CIT(A), accordingly, we uphold the same and decide the issue against the Revenue.
2014 (12) TMI 1410

Simultaneous proceedings under different acts for same offence - Dishonour of Cheque - complaint for the offence punishable under Section 138 of the Negotiable Instruments Act as well as offence punishable under Section 420 of the Indian Penal Code imposed - HELD THAT:- In the decision in Kolla Veera Raghav Rao [2011 (2) TMI 1257 - SUPREME COURT] it is observed by the Hon’ble Supreme Court that Section 300 (1) of the CrPC is wider than Article 20 (2) of the Constitution of India as while the said Article only states that ‘No person shall be prosecuted and punished for the same offence more than once’, the said Section states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts - the Hon’ble Supreme Court had held as follows: “In the present case, although the offences are different but the facts are the same. Hence, Section 300 (1) of the CrPC applies. Consequently, the prosecution under Section 420 of the IPC was barred under Section 300 (1) of the CrPC.” Holding so, the Hon’ble Supreme Court while setting aside the judgment of this Court had allowed the appeal.

Reverting to the facts of the case on hand, it is to be restated that both the cases against the accused based on the same set of facts are still pending and no conviction is yet recorded in any one of the two cases. Therefore, as rightly urged, unless the accused is tried and convicted by a competent Court for the offence punishable under section 138 of the NI Act, the question of bar under Section 300 (1) of the CrPC for the prosecution under Section 420 of the IPC does not arise; and for Section 300 (1) of the CrPC to apply the accused must first establish that he was earlier tried and convicted for an offence on the same set of facts. Be that as it may. Nonetheless, the learned counsel for the accused submits that even if the accused were to be tried on the same set of facts at two different trials for the two offences and albeit he were to be found to be guilty, still he cannot be convicted and punished for both the offences in view of the provision of Section 300 (1) of the CrPC and that therefore, subjecting him to the ordeal of a criminal trial for the offence under Section 420 of the IPC on the same set of facts is not only an abuse of process of Court but would also be an exercise in futility, and, hence the same cannot be permitted. This Court finds force and acceptable merit in this submission.

This court finds that it would be just and appropriate to order stay of the proceeding in the case crime no. 6 of 2012 of the III Town Police Station of Karimnagar registered for the offence punishable under Section 420 of the IPC till the final disposal, on merits, of the CC 139 of 2012 taken on file by the learned Magistrate for the offence punishable under Section 138 of the NI Act, as such a course sub serves the ends of justice and would protect the interests of both the parties - Petition disposed off.
2014 (12) TMI 1409

Direct recruitment to the post of Assistant Registrar from among the practising members of the Bar - affected petitioners who possessed B.L. Degrees have filed the writ petitions, arraying the persons promoted as respondents, who were possessing B.A.L. Degree, in view of the promotion Notification No.165/2013 dated 21.8.2013.

HELD THAT:- Insofar as the plea based on a large number of employees acquiring B.A.L. Degree is concerned, we feel that it is of no consequence as they were acquired by the persons to get into the channel of promotion and they were fully aware of the fact that the existing rules then provided for only 25% of the cadre strength for them in terms of the proviso which was an exception to the rule. Their expectation thus cannot be higher than that.

The first set of amendments itself made it clear what was the intent while enacting the amendment to the Rules. Sub-rule (g) was added in Rule 1 to clearly define a law degree to be one recognised by a University in India and recognised by the Bar Council of India for admission as an advocate or an attorney of an Indian Court. Only the B.L. Degree satisfies this test. Thus, Rule 6(b)(2) in the context of this definition leaves no manner of doubt that it is the B.L. Degree alone which was a pre-requisite, and B.A.L. Degree would not qualify the person for such an appointment, but for the insertion of the proviso. The proviso is thus clearly an exception to the rule, as held by us aforesaid and must be construed accordingly.

The fact that the proviso is followed by a “notwithstanding” clauseauthorizing the Chief Justice to vary the percentage of vacancy or cadre/subcadre posts to be filled up by promotion from one or other category of eligible employees cannot imply that the Chief Justice is authorised to negate the rule itself as read with the definition clause. The exigencies of situation would thus permit some variation, not possible for us to quantify, but suffice to say, as not permitting the destruction of the main clause.

The present case is not one of change of intendment of an enactment by insertion of certain mandatory conditions to be fulfilled in order to make the enactment workable, since the definition clause was never changed, which defines a law degree for purposes of the rules, but on the other hand was inserted by the first set of amendments. Thus, the general principle that a proviso carves out an exception to the main provision would continue to apply and must be limited to the subject matter of the enacting clause. This is not an exceptional case of the proviso being a substantive provision itself, principle in any case made applicable to taxation matters.

It cannot obliterate the earlier substantive provision, which is the result which would follow if the ratio is changed to 25% for B.L. and 75% for B.A.L., creating a proviso which is overwhelmingly in favour of the exception, rather than the main rule. There is thus substance in what was canvassed on behalf of the petitioners that the amendment of the year 2013 seeks to make the proviso the rule and the rule the proviso.

The amendment dated 30.7.2013 seeking to reverse the ratio between B.L. and B.A.L. Degree holders for as 25% and 75% respectively cannot be sustained and is hereby quashed.
2014 (12) TMI 1408

Interpretation of statute - entry C-I-29 and notification thereunder dated 9.5.2002 - packing materials - classification of goods - HELD THAT:- The Notification itself states that in exercise of powers conferred by Entry 29 of the schedule ‘C’ appended to the Bombay Sales Tax Act, 1959 (Bom.LI of 1959), the Government of Maharashtra, with effect from the 1st April, 2001, and in supersession of the Government Notification, Finance Department, No.STA.1100/CR-122/Taxation-1, dated 11th August, 2000, specifies the goods, more particularly described in the Schedule appended to this Notification, to be Industrial inputs and packing materials, whether sold under a generic name or any brand name, for the purposes of the said entry no.29. If the Industrial inputs and packing materials and covered from time to time under the heading or sub-headings as the case may be of the Central Excise Tariff Act, 1985 have been brought within the purview of a single Notification then we must see as to why the supersession was effected. The earlier Notification of 11th August, 2000 also notified the Industrial inputs and packing materials.

The articles such as Ghamelas might be used in construction, agriculture etc. but they are not industrial inputs or packing materials would exhibit complete ignorance of the commercial word as well. It is for that reason that we emphasised the principles evolved by the Hon’ble Supreme Court. If they would guide us and they were equally binding and ought to have guided the Tribunal when it exercise its initial Appellate jurisdiction. In such circumstances, the plain reading of the entry and as made by the Tribunal in the initial stage while deciding the Appeal to be found in paras 10 to 12 of its order would demonstrate that it is this exercise which thereafter put the Tribunal itself in doubt. It is that doubt which required it to refer the questions to this Court. None would now therefore fault the Tribunal for reading the entry industrial inputs and packing materials properly. The fact that the Industrial inputs and packing materials have been notified throughout under the Notifications and in terms of the heading or sub-headings of these articles and materials under the Central Exercise Tariff Act, 1985 would show that household wares or domestic articles were not intended and rather never intended to be brought in. The exclusionary part of the entry itself will clarify this aspect. The articles of plastics and notified for use of conveying or carrying articles packed in plastic materials would denote that the understanding throughout was to bring in such articles which are used in trade, commerce and Industry.

The Tribunal was not correct in concluding that all articles which have been manufactured by the dealer would not fall in the Entry C-I-29 and Notification dated 9th May, 2002 - the issue is necessarily have to be answered and in terms of the articles referred to in the notification in favour of the dealer against the Revenue.

Reference disposed off.
2014 (12) TMI 1407

Set off of Brought forward losses - applicability of section 79 - Tribunal allowing the set off of brought forward losses and by holding that the Assessee Company was deemed to be a company in which public is substantially interested - HELD THAT:- In the present case, item (B) was invoked because in the Assessee company the voting power has been unconditionally acquired and to the extent indicated in item (B) by a company to which the clause applies or any subsidiary of such company if the whole of the share capital of such subsidiary company has been held by the parent company or by its nominees throughout the previous year. After perusal of the share holding pattern, the Tribunal concluded that the shares of Tata Industries Limited have been transferred to Tata Power Co. Ltd. It may be that, now, the voting power under section 2(18)(b) is acquired by the Tata Power Co. Ltd. but once that company falls within the definition of the term “a company in which public are substantially interested”, then, the Tribunal's conclusion cannot be faulted.

There is material on record to indicate that as to how Tata Industries Limited and Tata Power Co. Ltd. have been treated by the Department/Revenue as companies in which public are substantially interested.

Section 79 provides for carry forward and set off losses in case of certain companies. That refers to a change in the share holding pattern taking place in a previous year in the case of a company, not being a company in which the public are substantially interested. Therefore, the prohibition which is carved out by this section becomes applicable. Obviously, therefore, if it is a company in which public are substantially interested, applicability of section 79 is ruled out. In the present case, we are not concerned with the section 43A of the Indian Companies Act. So long as the record indicated, the share holding pattern and the details which are set out at para 20 of the Tribunal's order which was undisputed, then, the Tribunal was justified in directing the Assessing Officer to allow the claim of brought forward losses. We do not see any substantial question of law arising for determination and consideration in this Appeal. Once the factual position and emerging from the record is noticed, then, the Assessee satisfies the condition stipulated and specified in section 2(18). The first question, therefore, cannot be termed as a substantial question of law.

Computation of book profit u/s 115JB - inclusion of claim of depletion in producing properties as claimed - HELD THAT:- Assessee had to prepare a Profit and Loss Account for the relevant previous year in accordance with PartII and PartIII of Schedule VI to the Indian Companies Act, 1956. Since, the Tribunal found that the guidance can be taken from the Notes of accounting standards issued by the ICAI on depreciation accounting and we have held that such a course was permissible, then, the Tribunal was justified in referring to para 4 of this guidance Note and thereafter relying upon it. Once the guidance Note indicates that depreciation also includes the depletion of natural resources through the process of extraction or use, then, the Tribunal was justified in eventually directing that the Assessing Officer must recompute the book profit under section 115JB after allowing the claim of depletion in producing properties as claimed by the Assessee. We have referred to the relevant provisions in the Indian Companies Act, 1956. Section 211(3C) of that Act specifically refers to the standards of accounting and which have been laid down by the ICAI. In these circumstances, the view taken by the Tribunal on this count cannot be termed as perverse. We do not see how a substantial question of law would arise for our determination and consideration. In such circumstances, the question No.4 is also not a substantial question of law.
2014 (12) TMI 1406

Admissibility of appeal - utilization of CENVAT Credit - HELD THAT:- The tax appeal is admitted for consideration of following substantial question of law:

Whether Hon’ble Tribunal committed error in setting aside the demand of Central Excise duty in respect of utilization of Cenvat credit of Basic Excise duty for discharge of Education Cess payable on finished goods for the period June, 2009 to October, 2009 during which the assessee was availing the benefits of area based exemption under Notification No. 39/2001-C.E., dated 31-7-2001?
2014 (12) TMI 1405

Criminal conspiracy - manipulation of the appraisal report of income tax investigation, to show undue favour to the accused No.2 - demand and accepting huge amount of illegal gratification - HELD THAT:- On perusal of Section 173 of Cr.P.C. it is manifestly clear that after completion of investigation, the investigating officer shall make a detailed report and the concerned Officer In-Charge of the police station shall forward this report to the Magistrate having jurisdiction to take cognizance. Thereafter, the Magistrate would consider the charge-sheet and the accompanying documents as well as the statements of the witnesses and would decide whether to take cognizance of the offence or not - A bare reading of provisions contained in Section 207 of Cr.P.C. shows that it is the obligation of the Magistrate to see that all the documents which are necessary for the accused for proper conduct of his defence, are furnished to him well before the trial.

It is only when specific request has been made by a police officer in his forwarding memorandum of the charge-sheet while being forwarded to the Magistrate stating that any particular statement recorded under Section 161(3) of Cr.P.C. or any document or any part thereof should not be supplied to the accused that the, Magistrate shall on the basis of the discretion conferred upon him, by virtue of first proviso attached to Section 207 of Cr.P.C. after considering the reasons given by the police officer making such request, would either issue directions for furnishing copy of that part of statement or would issue directions for furnishing any relevant portion of that statement thereof to the accused or otherwise - in case where no such specific request has been made by a police officer while forwarding the charge- sheet to the Magistrate then the copies of all the statements recorded under Section 161(3) of Cr.P.C., documents or relevant extract thereof, etc. as provided in clause (i) to (v) of Section 207 of Cr.P.C are required be provided to the accused.

It is settled rule of law that impartial and fair opportunity in a trial are Constitutional as well as human right. It is an undeniable duty of the Court to ensure that nothing causes a threat to such a right. It is the right of an accused to adduce evidence in order to raise defence failing which it may tantamount to jeopardizing the right to fair trial. Justice can only be ensured if the rules of procedure that have been designed are diligently adhered to. No court shall allow breach of these principles. Furthermore, incompletely adduced evidence would lead to incomplete defence, which may result in incorrect or incomplete answers consequently strengthening the prosecution case against the accused.

In case the prosecution is permitted to withhold what might be vital evidence for an accused to establish his case, the unscrupulous investigating agency would be with utmost ease able to keep the court in the dark. Since the charges framed by CBI are of criminal nature, the petitioner under such circumstances has the full right to lay down his defences for the purposes of which all necessary disclosures have to be duly made in accordance with the procedures laid down under Cr.P.C. Accused can ask for the documents that withhold his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Defence has to be build up from day one and not on ad-hoc basis denying the same would seriously prejudice the rights of the accused as enshrined in the Constitution of India.

This Court is of the opinion that petitioner cannot be denied an access to the documents in respect of which prayers have been made in the petition merely because CBI does not consider it relevant. If there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of the prosecution and the investigating officer ignores these documents and forward only those documents which favour the prosecution, in such a scenario, it would be the duty of investigating officer to make such documents available to the accused.

The respondent is directed to supply copy of statements under Section 161(3) of Cr.P.C. of prosecution witnesses namely Rajpal Malik, Chhabi Lal and Vinit Khetan, Nikhil Nanda, Deepak Chawla, Ajay Kumar Gupta, Ravinder Aggarwal, Amit Saxena and Pradeep Sahni as well as Directors of M/s. Blueview Commodities Pvt. Ltd., M/s. Kush Hotels and Resorts Pvt. Ltd., M/s. Longview Infrastructure Pvt. Ltd., M/s. Brijdham Properties & States Pvt. Ltd. and M/s. Tolly Commercial Pvt. Ltd., as also the copies of the documents i.e. (i) Copy of the alleged ‗Appraisal Report' of Shri Suresh Nanda Group of Cases; (ii) Copy of the missing pages of the CDRs forming a part of D17 and listed in Annexure A herein; (iii) Copy of the complete and correct transcription of the alleged telephone calls and conversations as alleged by the CBI & (iv) Copy of the complete and unedited video footage as seized by the CBI as per Seizure Memo dated 14.03.2008 (marked as D19) to the petitioner to establish his defence.

Petition allowed.
2014 (12) TMI 1404

Disallowance u/s 14A - HELD THAT:- Refereeing to various decisions, relied upon by the assessee, wherein a consistent view has been taken that where no exempt income is earned, there could not be any disallowance u/s 14A, we find no merit in the ground taken by the Revenue. Accordingly, ground no. 1 is dismissed.

Disallowance of interest claimed u/s 36(1)(iii) - CIT(A) has restored the matter to the file of AO - HELD THAT:- Nothing has been brought on record to controvert the findings of ld. CIT(A). We find that findings of ld. CIT(A) do not suffer from any infirmity and, therefore, we confirm his action.
2014 (12) TMI 1403

Maintainability of petition - Whether the Writ Petition filed by the petitioner challenging the order dated 12.10.2004 and seeking other reliefs as quoted above is maintainable under Article 226 of the Constitution of India, the fourth respondent being minority private institution affiliated to the University and receiving aid from the Government? - Whether Exhibit P14 order dated 12.10.2004 is an order imposing punishment within the ambit of Section 63 of the Act, 1985 and has the petitioner statutory remedy to file appeal before the University Tribunal under section 63(6) of the Act, 1985? - Whether the appointment of the petitioner to the post of Principal can be treated to be an appointment on deputation for a period of five years terminable at the instance of the management of the fourth respondent College? - Whether the termination of the petitioner from the post of Principal in the manner as carried out by the fourth respondent is contrary to the provisions of the Act, 1985 and the Statutes framed thereunder?

HELD THAT:- It is clear that the Writ Petition has been filed challenging violation of statutory provisions by the management. The petitioner contends that the action of the management terminating the service of the petitioner is in violation of the provisions of the Act, 1985 as well as Chapter XLV of the M.G. University Statutes, 1997 - There is no dispute that salary of teachers and employees is being paid by the State. The fourth respondent College is undoubtedly a private body, but it is obliged to carry on its function as per the statutory obligations imposed by the Act, 1985 and the Statutes framed thereunder - The service conditions of a Principal and teachers of an affiliated College are governed by the statutory provisions. The Writ Petition, at the instance of such teacher or Principal, is thus, clearly maintainable.

The petitioner's appointment not being on deputation, treatment of the appointment of the petitioner as deputation and termination of the deputation is wholly without jurisdiction and beyond the power of the management. The management could have taken disciplinary action in accordance with Section 63 of the Act, 1985 and could not in any other manner terminate the employment of the petitioner - The petitioner, who was substantively appointed by direct recruitment after following due procedure in the Act and Rules, has been illegally and arbitrarily treated to be on deputation by the management and the order dated 12.10.2004, thus, is unsustainable and deserves to be set aside.

The interest of justice will be served in directing payment of a lump sum amount to the petitioner by the management of the fourth respondent College, instead of directing reinstatement to the post of Principal - petition allowed.
2014 (12) TMI 1402

Claim for conversion / manufacturing loss - appellant's claim for conversion / manufacturing loss to the extent of 5 per cent only - HELD THAT:- We find that it is not in dispute that the trading result disclosed by the assessee is fully supported by the books of accounts and stock register. No defect in the regularly maintained books of accounts of the assessee could be pointed out by the Revenue.

The quantum of weight loss in manufacturing by itself even when the same is more than others does not empower the Revenue to make addition unless some defect in the books of accounts of the assessee is found. The excess loss suffered by the assessee may provide a ground to the Revenue to investigate the fact properly but that by itself does not empower to disallow genuine loss when no defect in the books of accounts is found. Thus, in our considered opinion, the addition confirmed by the CIT(A) is not sustainable on the facts of the instant case. We, therefore, delete the addition and allow this ground of appeal of the assessee.
2014 (12) TMI 1401

Dishonor of Cheque - insufficiency of funds - Not a case of presumption, but a case of authority - Section 138 of NI Act - HELD THAT:- In the present case, it is admitted position that the cheques were signed by the accused persons - The provisions given in section 20 of the NI Act, makes it clear that the instrument may be wholly blank or incomplete in any particular; in either case, the holder has the authority to make or complete the instrument as a negotiable one. The authority implied by a signature to a blank instrument is so wide that the party so signing is bound to a holder in due course even though the holder was authorised to fill for a certain amount. Section 20 of the Act declares that inchoate instruments are also valid and legally enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability.

In the facts of the present case, though the respondent/accused had admitted that the signed cheque was issued by him but it was denied that the same was issued voluntarily by him in favour of the petitioner against due payment. On the other hand, it was sought to be contended that the cheque had been issued for the security purposes but was misused by the petitioner/complainant after having filled up the details by herself. But as per Section 20 of the NI Act, an individual is authorised to complete the inchoate instrument deliver to him by filling up the blanks. Moreover, a blank cheque could be filled up by the 'Holder thereof', which will be a valid instrument in the eye of Law.

Revision allowed.

It is not a case of presumption but it is a case of "authority", therefore, the arguments advanced by the counsel for the respondent and decisions cited in support thereof are not acceptable. Hence, in the considered opinion of this court, the revisional court committed an error to allow the applications under section 45 of the Evidence Act.
2014 (12) TMI 1400

Maintainability of petition - Arrears of rent and personal bona fide necessity for the settlement - entitlement of applicant to evict respondent from the demised premises - no cause of action to file the present petition - HELD THAT:- It is no more res-integra that the suitability of any premises for the need of the landlord is to be considered as per the convenience and choice of the landlord, who is at liberty to decide how he has to utilize his property and which property is best suited for his needs. The tenant has no role to dictate his terms in the matter. Admittedly, the demised premises with the revision petitioner was required by the respondent to settle her daughter, who lost her husband, an armymen who died in insurgency. The premises is admittedly shop-cum-flat. The first and second floors of the premises are residential. Even if, PUDA/GMADA had under some scheme allowed the conversion of shop-cum-flat(SCF) to shop-cum-office(SCO), the option lies with the owner to avail the concession given by PUDA/GMADA and certainly for the conversion of residential portion of a building into commercial, one has to pay conversion charges.

The violation of the rules and regulations of PUDA/GMADA may invite resumption of building for its unauthorized use. Even if, this plea of petitioner be accepted that Coaching Centre can be started on the first and second floors of the premises in question, still the option lies with the landlord to select as to where the same is intended. It is the case of the landlord that the demised premises being ground floor and basement are more suitable to start a Coaching Centre as compare to the remaining portion of SCF. In view of the need and choice of the landlord, the wish/dictate of the revision petitioner that the landlord should start the Coaching Centre on the first and second floors of the building is no ground to doubt the bona fide need of the respondent-landlady.

In the present case, the revision petitioner in his written statement, has categorically denied the existence of rent agreement dated 16.10.2008, as such, he stood debarred from taking the plea that vide that agreement, he had taken the premises for a term of five years.

There are no legal or factual infirmity in the judgment under revision calling for any interference - revision petition has no merits - revision petition dismissed.
2014 (12) TMI 1399

Exemption u/s 11 - registration u/s.12A rejected - application rejected by the CIT that object of the assessee-trust is to benefit of a particular family - HELD THAT:- As per clause(3) of the Objects, the assessee-trust has to undertake and help the activities in the field of compassion for all the forms of life (Jiv daya). To establish, run and maintain Cattele-Camps, Dhor-Wada, Panjra Pol, etc. To provide food and other necessary help to the miserable and mute animals. To undertake activities in the field of welfare of people and welfare of animals and provide help to them at the time of Natural or Manmade calamities. As per clause (7) of the Objects, the assessee-trust has to undertake activities for the protection of environment, afforestation and conservation of forest. To save the environment from getting polluted. To undertake activities to stop soil erosion and to stop destruction of forest. To undertake all the activities like plantation etc. to save the environment and to be helpful in all such activities.

From the Objects, it is clear that the assessee-trust, apart from benefitting a particular family, also have Objects which would benefit the public at large without being limited to a particular family or a community.

In the case of CIT vs. Dawoodi Bohara Jamat [2014 (3) TMI 652 - SUPREME COURT] held that where objects of assessee-trust exhibit dual tenor of religious and charitable purposes and activities, are not exclusively meant for a particular religious community, provisions of Section 13(1)(b) are not applicable and assessee-trust is entitled to claim exemption u/s.11 of the Act.

Thus CIT was not justified in rejecting the application of the assessee - Decided in favour of assessee.