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2014 (12) TMI 1407 - BOMBAY HIGH COURT
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.
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2014 (12) TMI 1406 - GUJARAT HIGH COURT
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?
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2014 (12) TMI 1405 - DELHI HIGH COURT
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.
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2014 (12) TMI 1404 - ITAT DELHI
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.
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2014 (12) TMI 1403 - KERALA HIGH COURT
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.
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2014 (12) TMI 1402 - ITAT AHMEDABAD
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.
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2014 (12) TMI 1401 - MADHYA PRADESH HIGH COURT
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.
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2014 (12) TMI 1400 - PUNJAB AND HARYANA HIGH COURT
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.
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2014 (12) TMI 1399 - ITAT RAJKOT
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.
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2014 (12) TMI 1398 - ITAT MUMBAI
Computation of deduction u/s 10A - setting off carried forward unabsorbed loss and depreciation from earlier assessment years or current assessment year - HELD THAT:- As provisions of section 10A are in the nature of deductions and not exemptions and the deduction under section 10A has to be given at the stage when the profit or gains or business are computed in the first instance. As per the judgement of the Coordinate Bench in the case of Value Process Technologies (I) P. Ltd. [2013 (1) TMI 802 - ITAT MUMBAI] which is relevant for the proposition, exemption under section 10A has to be allowed with setting off carried forward unabsorbed loss and depreciation from earlier assessment years or current assessment year either in the case of Non-STPI Unit or in the case of very same undertaking. Considering the above said proposition of law, we are of the opinion that the assessee should succeed on the ground raised before us. Assessee’s grounds are allowed.
Allowability of employees contribution to PF - payments made before filing of return of income - HELD THAT:- Issue stands covered in favour of the assessee in view of the judgment of the Hon'ble Supreme Court in the case of Alom Extrusions Ltd. [2009 (11) TMI 27 - SUPREME COURT], which is relevant for the proposition that after omission of the second proviso to section 43B the payments made before filing of return of income is an allowable deduction. Accordingly, considering the fact that the payment is made within the grace period the conclusion drawn by the CIT(A) in this regard is fair and reasonable and it does not call for any interference. Therefore, ground No. 1 is rejected.
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2014 (12) TMI 1397 - ITAT RAIPUR
Disallowance of material expenses - expenses on account of steel, cement, glass, aluminum etc. were supported by the purchase bills, that the expenses claimed in respect of bricks, sand, earth etc. were not fully supported by proper bills, that many of the expenses regarding those items were claimed on the basis of self made cash vouchers and were not supported by Pucca bills of purchase, that same were not fully verifiable - HELD THAT:- AO had called for the details of various expenses incurred by the assessee, that it had furnished all the necessary details during the assessment proceedings, that the AO made a disallowance on estimate basis, that the audited accounts of the assessee were available to the AO and in the audit report there was nothing that could lead to the conclusion that the assessee had not incurred expenditure claimed in the books of account, that similar kind of expenses were disallowed in the earlier years by the AO were deleted by the Tribunal. We are of the opinion that the AO cannot make any addition/disallowance without giving proper reasons.
As a representative of the State, he is duty bound to pass a reasoned order. A reasoned order needs basic facts their analysis and conclusion. In the case under consideration, estimated disallowance has been made without assigning proper reasons. The AO has not rejected the books of account and has not pointed out any defects in the books. In these circumstances, in our opinion, he was not justified in making the disallowance. Therefore, confirming the order of the FAA, we decide the first ground of appeal against the AO.
Disallowance of labour and contingency expenses - HELD THAT:- We find that the assessee-firm had furnished books of account and audited statement of accounts and the AO was not able to pin-point the defects in such documents, that the quantity of material used in labour charges incurred were certified from time to time by the competent authorities and the AO was not able to negate the claim made by the assessee. It is also found that the AO had not disputed about the labour and contingency payment though he had made an ad hoc disallowance. We are of the opinion that the tax liability cannot be fastened to the assessee by the AO without bringing some positive evidence against the assessee on record, that the disallowance or addition has to be backed by some documentary/oral evidence which could prove that the claim made by it of an expenditure was not genuine. In the case under consideration, the AO has made a lump sum disallowance, but same is not backed by any evidence. We are of the opinion that the order of the FAA does not suffer from any legal or factual infirmity. - Decided against revenue.
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2014 (12) TMI 1396 - KARNATAKA HIGH COURT
Validity of block assessment u/s 158BD - Whether notice issued u/s 158BD does not satisfy the requirements of law on the ground that Assessing Officer has recorded satisfaction after completion of the block assessment under Section 158BC in the case of the person search? - tribunal has held that the satisfaction note has been recorded after the expiry of time limit under Section 158 BE in the case of the search person and therefore the notice issued under Section 158 BD is not validly issued - HELD THAT:- In the instant case, the assessment year in the case of search as was made on 28.03.2003. The notice under Section 158BD is issued on 09.07.2003. The satisfaction note is prior to the date of issue of notice. But certainly, not either on the day the assessment order was passed in the case of searched person or before 31.03.2003. As held by the Apex Court in the aforesaid judgment the satisfaction note has to be prepared immediately after the assessment proceedings are completed under Section 158BC of the Act of the searched person. Therefore on the ground that such a note was not prepared either at the time when the order was issued under Section 158BD or before 31.03.2003, the proceedings initiated under Section 158BD cannot be held valid.
What remains is the question of word “immediately” used in the aforesaid provision. However in the instant case we do not propose to go into the said question because the order passed by the tribunal has to be sustained on the ground that satisfaction has not been recorded in the case of the searched person.
Admittedly, in this case the satisfaction note is prepared in the case of the assessee itself. It ought to have been prepared in the case of the person searched. Therefore the entire initiation of proceedings under Section 158BD is vitiated. In that view of the matter the order passed by the tribunal confirming the order of the appellate authority cannot be found fault with.
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2014 (12) TMI 1395 - SUPREME COURT
Denial of benefit of Wage Revision by notional fixation and re-computation of their retiral dues (severance package) - HELD THAT:- The Central Administrative Tribunal and the High Court have erred in law in allowing the wage revision benefits to the employees, who were not covered either under communication dated 8.8.2006 issued by the Government of India or the consequential Office Order dated 25.8.2006 whereby the wage revision is implemented.
In Sudhir Kumar Consul v. Allahabad Bank [2011 (2) TMI 1372 - SUPREME COURT], which also pertains to the question of fixing of cut-off date for granting retirement benefits, this Court has laid down that the cut-off date may be justified on the ground that additional outlay as involved or the fact that under the terms of appointment, the employee was not entitled to the benefit of pension or retirement.
Thus, it is not found that the cut-off date, i.e., 1.4.2003 for granting wage revision, in the facts and circumstances of the present case, is arbitrary nor we find it violative of Article 14 of the Constitution - the employees, who were superannuated or voluntarily retired prior to 01.04.2003 from Appellant Corporation, are not entitled to notional wage revision as directed by the Central Administrative Tribunal, and the High Court - appeal allowed - decided in favor of appellant.
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2014 (12) TMI 1394 - MADRAS HIGH COURT
Dishonor of Cheque - Jurisdiction - power of Judicial/Metropolitan Magistrate to condone the delay in filing a private complaint - HELD THAT:- Factually, the statutory notice under Section 138 of The Negotiable Instruments Act issued by the respondent was received by the petitioner on 26.05.2005. As per Section 138 of The Negotiable Instruments Act, though the period of limitation expired on 11.07.2005, the complaint was admittedly presented before the learned Magistrate only on 12.07.2005. It was returned by the learned Magistrate repeatedly and finally cognizance was taken on 22.01.2007.
As held by the Honourable Supreme Court in Vanka Radhamanohari v. Vanka Venkata Reddy [1993 (4) TMI 326 - SUPREME COURT], so far as the offence under Section 138 of The Negotiable Instruments Act is concerned, if there is a delay in presenting the complaint, the same requires to be satisfactorily explained only by the complainant and the Court cannot condone such delay in the interest of justice as it could be done under Section 473 Cr.P.C. Therefore, it is absolutely necessary for the Court to examine as to whether the complainant has satisfactorily explained the delay by showing sufficient cause and if he fails to do so, the Court shall dismiss the complaint. In other words, in the absence of any satisfactory explanation by the complainant for the delay, the Magistrate, on his own, by taking into account the facts and circumstances of the case, shall not condone the delay as it could be otherwise done under Section 473 Cr.P.C.
In Sarah Mathew v. Institute of Cardio Vascular Diseases [2013 (11) TMI 1587 - SUPREME COURT], the Honourable Supreme Court has held that for computing the period of limitation, the crucial date shall be the date of presentation of the complaint. If the date of presentation of the complaint is beyond the period of limitation prescribed under Section 142 of The Negotiable Instruments Act, it is absolutely necessary for the complainant to explain such delay by showing sufficient cause. In the case on hand, admittedly, no such petition was filed and no such explanation was offered. But, the lower Court, without noticing that there was a delay in presenting the complaint, has inadvertently taken cognizance. Had the lower Court noticed the delay, it would have called upon the respondent herein to explain the delay. Thus there was some error on the part of the lower Court.
In the instant case, the order of the learned Magistrate taking cognizance deserves to be set aside and the matter needs to be remanded back to the lower Court with a liberty to the respondent herein to file an appropriate petition seeking condonation of delay by showing sufficient cause - Petition closed.
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2014 (12) TMI 1393 - KERALA HIGH COURT
Smuggling - Gold - petitioners case is that they are only a bailee under the bailment for doing the work - customs authorities can withhold the gold or not - HELD THAT:- The primary authority is to decide whether this gold articles are liable to be released to the petitioners is the authority under the Customs Act. If the gold articles brought by the petitioners are clearly identifiable and it is only for the purpose of job work, authority will not have any difficulty in releasing it. However, that has to be satisfied by the officer attached to the 4th respondent. Petitioners therefore shall make an application to release the good with documents and other relevant materials in terms of Section 110A of the Customs Act, 1962. If petitioners make an application, that application shall be considered within a period of ten days from the receipt of such application.
Petition disposed off.
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2014 (12) TMI 1392 - ITAT AHMEDABAD
Unexplained investment in jewellery - unexplained cash - interest on deposits in FCNR accounts - addition on account of household expense - a profit of 25% was estimated besides an addition of unexplained cash credit was also made based on certain entries/notings found to be recorded in loose papers - HELD THAT:- As requested to restore the matter to CIT(A) to be decided the matter in light of decision in case of Chandrakant J Patel vs. V N Srivastava [2011 (3) TMI 1322 - GUJARAT HIGH COURT] Nothing contrary has been brought to our knowledge on behalf of Revenue. Facts being similar, so following same reasoning we restore the matter to CIT(A) with direction to decide the matter in light of observation in Chandrakant J Patel - Appeal filed by assessee is allowed for statistical purpose.
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2014 (12) TMI 1391 - GUJARAT HIGH COURT
Nature of income - agricultural income or income from other sources - AO had held that the agricultural land owned by the assessee was about 8 acres only and as such the assessee could not have earned huge agricultural income from the sale of vegetables and other agricultural produce - Tribunal directing the AO to accept the agricultural income declared and not to consider any part of the same as income from other sources - HELD THAT:- The Tribunal has observed that out of about 15000 saplings of Eucalyptus trees/Nilgiri trees which were planted in 1982-83, it is quite reasonable to assume that atleast 5000 saplings of Eucalyptus trees/Nilgiri trees will grow into full trees in the year 1990-91 relating to AY 1991-92 which could be cut and sold because as per the certificate issued by the Range Forest Officer no permission is required for cutting and sale of Eucalyptus trees/Nilgiri trees.
Tribunal as well as CIT(A) are justified in coming to the conclusion that there is no merit in the appeals filed by the Revenue. The assessee HUG owns fertile agricultural land having irrigation facilities from which agricultural income has been shown and accepted by the revenue in earlier years also and the fact of assessee having been alloted agricultural land and 15000 Eucalyptus trees/Nilgiri trees in the year 1982-83 has been certified by Range Forest Officer. We are in complete agreement with the reasonings adopted and findings of fact arrived at by the lower authorities. Decided in favour of the assessee
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2014 (12) TMI 1390 - CALCUTTA HIGH COURT
Issue of car parking at Premises - leave under Order 1 Rule 8 of the Code of Civil Procedure - whether the petitioners, who are not parties to the suit, can maintain the instant application? - HELD THAT:- While it is not disputed that the suit was instituted with leave under Order 1 Rule 8 of the Code of Civil Procedure, it is contended on behalf of Angad Merchants that no notice of the suit having been published as contemplated under Order 1 Rule 8 (2) of the CPC, the suit has not assumed representative character and, as such, a non-party to the suit cannot maintain any application therein.
There is nothing on record to show that notice of the suit has been given to all persons interested therein either by personal service or by public advertisement. Would that mean that a party who is similarly interested in the suit as the plaintiff is precluded from filing an application in the suit for appropriate reliefs even if he has actual notice of the suit? In my opinion, the answer must be in the negative. The provision of notice is there so that a party who would be bound by a decree passed in a representative suit does not find that he is bound by a decree without even having notice of the suit. The entire purpose of serving notice, be it individual notice or public notice, is to make all such persons aware that a representative suit has been filed so that such persons, if they choose can come forward and either support or oppose the cause.
A person having actual notice of the suit, even though the plaintiff has not served notice as contemplated under Order 1 Rule 8 (2) of the CPC, is entitled to make an application in the suit praying for reliefs which are within the scope of the suit - time to issue notice of the suit may be extended by the Court and such notice can be issued privately or by public advertisement at any stage of the suit. It is merely that until such notice is issued a non-party who is not before the Court will not be bound by any order or decree passed in the action - the issue is decided in favour of the petitioners.
The petitioners prayed that the Joint Administrators should take expeditious steps for the purpose of implementing the Division Bench order dated 11th August, 2006. Angad Merchants contends that the said order was obtained by suppressing their presence in the disputed portion of the basement and behind its back.
Application allowed in part.
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2014 (12) TMI 1389 - SUPREME COURT
Liability for license and deposit license fee and other taxes - Uttar Pradesh Cinemas (Regulation) Act, 1955 - N/N. 145/XXVII (5) Entertainment Tax/2005 dated 17.8.2005 - HELD THAT:- In pursuance of Section 21 of the Cable Television Network Act, 1995, the provisions of the Cinematograph Act, including the programme code, are fully applicable to the Cable operator. The Respondent got himself registered Under Section 3 by depositing ₹ 500/- as registration fee. The Respondent wants to run two private channels subscribing to 11,885 TV screens. The respondent is covered Under Section 2(aa) of the U.P. Cinema Rules, 1988 and is liable to pay fee under Rule 17.
By conduct the Respondent accepted the Rules, as he submitted an undertaking before the Court to comply with the Rules. He also deposited a license fee of ₹ 2400/- per year as imposed under Rule 17(1). The Respondent cannot choose and be selective as to which Rules will be applicable to him. The Respondent has also given an undertaking to comply with Rules 17(1) and 17(2). This Court in M/S. LAXMI VIDEO THEATERS VERSUS STATE OF HARYANA AND OTHERS [1993 (7) TMI 339 - SUPREME COURT], while considering the expression "Cinematograph" under the Cinematograph Act, 1952 and its applicability on VCR and VCP which was developed in 1970, held that a definition must be given a meaning which takes into account the subsequent scientific developments in the field.
The Notification No. 145/XXVII (5) Entertainment Tax/2005 dated 17.8.2005 doesn't apply to the Respondent as it seeks to tax "Exhibition by means of Video". The Respondent's activities are not covered by the aforementioned expression - As long as there is no statutory sanction for imposition of a tax, no liability of paying a fee can be imposed relying on the alleged "consent" or acquiescence to the same imposition in part. The statutory sanction cannot be found under the Uttar Pradesh Entertainment and Betting Tax Act, 1979 or any rules made thereunder.
From a plain reading of the relevant provisions it is clear that the same are not applicable to the Respondent and hence the demand as well as the Recovery Certificate dated 6.8.2011 issued under Rule 17(2) of the Rules are bad in law - appeal dismissed.
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2014 (12) TMI 1388 - ATPMLA
Provisional attachment of property involved in money laundering - attachment on the ground that the said property was acquired by the Appellant from the proceeds of crime - existence of scheduled offence or not - HELD THAT:- The attachment of a property is liable to be vacated, if the existence of a scheduled offence is negated as the generation of proceeds of crime will also be negated. Therefore, in these facts and circumstances, attachment of proceeds of crime cannot continue, if the alleged scheduled offence is not established after trial. Given the scheme of the PMLA, attachment of property (proceeds of crime) must be lifted, if it is found that the scheduled offence and, on the basis of which attachment was effected, does not exist. In absence of a scheduled offence, the question of existence of any proceeds thereof, will not arise. Therefore, the attachment of the property is liable to be vacated, as in absence of scheduled offense, it cannot be inferred that the proceeds of crime were generated and the property by the Appellant had been purchased and constructed by the proceeds of crime generated by her husband.
The Hon'ble Delhi High Court in Rajiv Chanana Vs Dy. Director, Directorate of Enforcement [2014 (10) TMI 436 - DELHI HIGH COURT] had also held that in absence of scheduled offense, the attachment of property cannot continue.
The property as described herein above is released from attachment - Appeal allowed - decided in favor of appellant.
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