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Showing 81 to 100 of 15872 Records
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2014 (12) TMI 1346 - ANDHRA PRADESH HIGH COURT
Maintainability of petition - failure to fulfill the requirement of pre-deposit - second proviso to Section 31 of the A.P. VAT Act - HELD THAT:- As has been held by this Court, in its order in M/s. MBS Impex Pvt. Ltd Judgment [2014 (10) TMI 1006 - ANDHRA PRADESH HIGH COURT], the power available to the Supreme Court under Article 142 of the Constitution of India is not available to the High Court and, in the light of the Division bench Judgment in Ankamma Trading Company [2011 (2) TMI 1254 - ANDHRA PRADESH HIGH COURT], this Court would not be justified in passing any order contrary thereto.
Petition dismissed.
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2014 (12) TMI 1345 - ITAT MUMBAI
Admission of additional evidence under Rule 46A of the Act - CIT-A refusing to take into consideration the relevant documents admitted - HELD THAT:- While refusing to take into consideration the relevant documents which were very much necessary for the just decision of the case CIT(A) failed to exercise his appellate jurisdiction u/s 250 of the Act. The duty was also cast upon the Ld. CIT(A) to admit and consider the evidence produced before him by the assessee. As in the case of Smt. Prabhavati S. Shah Versus Commissioner Of Income-Tax - [1998 (2) TMI 107 - BOMBAY High Court]
Powers conferred on the first appellate authority under sub-section (4) of section 250 of the Act, being a quasi-judicial power, it is incumbent on him to exercise the same, if the facts and circumstances justify.
Even otherwise under Rule 46A(4) of the Income tax Rules, CIT(A) has been given power to call for production of any document or the examination of any witnesses to enable him to dispose of the appeal. There is no doubt about the legal position that if any document furnished by the assessee before the CIT(A) is in the nature of clinching evidence which goes to the root of the case then in the interest of justice such types of evidence should not be rejected. The documents relied upon by the assessee are very much relevant and necessary for the just and proper decision of the case, hence, we set aside the findings of the CIT(A) on these issues and remand back the matter to the file of AO with a direction to admit the additional evidences sought to be furnished by the assessee.
Non granting TDS credits - HELD THAT:- As we already restored the matter to the file of the AO while allowing the prayer of the assessee for furnishing of additional evidence on the above stated issues. This issue is also restored to the file of the AO for decision a fresh after verifying the claim of the assessee in this respect.
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2014 (12) TMI 1344 - GUJARAT HIGH COURT
Non-appreciation of Extended period of limitation - no reasonable care taken as required under rule 7(2) of the Cenvat Credit Rules, 2002 - credit denied for inputs purchased from Itisha Aluchem Industries - demand of cenvat credit, interest and penalties - HELD THAT:- Tax Appeal is Admitted for consideration of the substantial questions of law.
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2014 (12) TMI 1343 - GUJARAT HIGH COURT
Deduction u/s 80IB(10) - HELD THAT:- Present Tax Appeal is ADMITTED to consider the following substantial questions of law:
“(1) Whether the ITAT was justified in allowing the deduction u/s 80IB(10) of the Act, without appreciating the fact that the project was sanctioned with commercial area more than the specified limit as prescribed in clause (d) of section 80IB(10) of the Act and therefore not eligible for deduction?
(2) Whether the ITAT was justified in allowing the deduction u/s 80IB(10) of the Act, without appreciating the fact that the completion certificate for the shops as well as the residential flats had not been obtained before the prescribed time limit i.e. 31.03.2008 as stipulated in clause (a) of section 80IB(10) of the Act?
(3) Whether the ITAT is correct in facts and circumstances of the case in allowing the deduction u/s 80IB(10) of the Act, without appreciating the fact that the assessee has entered into separate agreements with individual buyers for construction works and thus carried out construction of residential houses as a contractor, rendering it ineligible for deduction u/s 80IB(10) of the Act?”
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2014 (12) TMI 1342 - SUPREME COURT
Extraction/removal of any mineral vested in the State without lawful authority or without a lawful assignment by the State - Held that:- The "ordinary earth" used for filling or levelling purposes in construction of embankments, roads, railways, buildings is deemed to be a minor mineral. It is not in dispute that in the present appeals excavation of ordinary earth had been undertaken by the Appellants either for laying foundation of buildings or for the purpose of widening of the channel to bring adequate quantity of sea water for the purpose of cooling the nuclear plant. The construction of buildings is in terms of a sanctioned development plan under the MRTP Act whereas the excavation/widening of the channel to bring sea water is in furtherance of the object of the grant of the land in favour of the Nuclear Power Corporation.
The liability Under Section 48(7) for excavation of ordinary earth would, therefore, truly depend on a determination of the use/purpose for which the excavated earth had been put to. An excavation undertaken to lay the foundation of a building would not, ordinarily, carry the intention to use the excavated earth for the purpose of filling up or levelling. A blanket determination of liability merely because ordinary earth was dug up, therefore, would not be justified; what would be required is a more precise determination of the end use of the excavated earth; a finding on the correctness of the stand of the builders that the extracted earth was not used commercially but was redeployed in the building operations. If the determination was to return a finding in favour of the claim made by the builders, obviously, the Notification dated 3.2.2000 would have no application; the excavated earth would not be a specie of minor mineral Under Section 3(e) of the Act of 1957 read with the Notification dated 3.2.2000.
Appeal allowed - decided in favor of appellant.
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2014 (12) TMI 1341 - KARNATAKA HIGH COURT
Disallowance u/s 40A(3) - payment in cash exceeding permissible limits - scope of amendment to act - retrospective effect of amendment - HELD THAT:- The proviso 40A(3) prior to amendment only prohibited incurring of expenditure in respect of which a payment is made in a sum exceeding twenty thousand rupees otherwise than by an account payee cheque drawn on a bank or account payee bank draft was not allowed of the deduction, when the law was amended on 1.4.2009 by Finance Act, 2008, when the word 'aggregate of payments' made to a person in a day was incerted.
It means till the date even if such payment is made by virtue of the earlier provision, the assessee would not denied the benefit of deduction. When the assessee was enjoying the benefit till the date of amendment, by this amendment tax cannot be levied retrospectively, it would cause great hardship. Therefore, the authority were not justified in holding that the said provision is restrospective and levying taxes on the basis of the said amended provision. In that view, certainly it was not clarificatory in nature. Therefore, the first substantial question of law is answered in favour of the assessee
Income from sale of shares - busniss income or short term capital gain - correct head of income - HELD THAT:- The assessee is an ayurvedic Doctor and he is in the business of purchase and sale of ayurvedic preparations. He has in all invested about 2.2 lakhs rupees in purchase of shares. The evidence on record shows the said investment is not paid from the borrowed capital. When the Tribunal holds a sum of ₹ 16,665/- is to be treated as LTCG and do not fall under the heading of Income from business or profession, we do not find any justification to bring the remaining income under the said head. No logic or reason for making the distinction. In the facts of this case, we are satisfied that the Income derived by the assessee from sale of shares would not fall within the head of Income from business or profession and therefore, the impugned order passed by the Tribunal is hereby set aside. - Decided in favour of assessee.
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2014 (12) TMI 1340 - SUPREME COURT
Whether proviso to Section 16 Explanation II(5) of Tamil Nadu Advocates' Welfare Fund Act, 1987 denying the payment of two lakh rupees to the kin of advocates receiving pension or gratuity or other terminal benefits would be violative of Article 14 of the Constitution of India?
Whether distinguishing this class of advocates from other law graduates enrolling in the Bar straight after their law degree did not have any rational basis?
Held that:- As per the scheme of the Welfare Fund Act, every advocate who has enrolled with the State Bar Council as per the Advocates Act 1961 would not automatically become a member of the Advocates' Welfare Fund and it is only those advocates who applied to the Trustee Committee, can become member of the Advocates' Welfare Fund. As per Section 15 of the Welfare Fund Act, only those who applied on payment of membership of ₹ 200/- towards application shall be admitted as a member of the Fund. It is thus not in dispute, not only the advocates who have enrolled with the Bar Council immediately after completion of their law degree, but also those who enrolled as advocates after their retirement from other employment may become the members of the Advocates' Welfare Fund. It is only those advocates who have become the members of the Advocates' Welfare Fund, are eligible for the benefits under the Welfare Fund Act which may be the payment of schedule amount on cessation of practice in terms of Section 16(1) and payment of lump sum amount as per the impugned proviso.
The persons who enrolled as advocates after their retirement even though they are denied the benefit of lump sum payment under the impugned proviso, on cessation of their practice, they shall be entitled to the Welfare Fund at the rate specified in the schedule. The differentiation of the retired employee-advocates who have set up practice as advocates after demitting their office, who are in receipt of pension or other terminal benefits and the advocates who set up practice straight from the law college, in our considered view, appears to be rational and reasonable. The said classification, in our view, has a nexus with the object sought to be achieved.
Statement of Objects and Reasons of the Tamil Nadu Welfare Fund Act clearly states that the Welfare Fund is intended to provide welfare to the advocates and to provide them retirement benefits. - on cessation of practice, the members of the Welfare Fund are entitled to the benefits as available in the schedule to the Welfare Fund Act based on the years of service and what is denied is just a lump sum amount. It is an established principle that mere hardship caused to a group should not be a ground to strike down a law.
While Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects, and transactions by the legislature for the purpose of achieving specific ends. But classification must not be "arbitrary, artificial or evasive". It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation - What is necessary is that there must be nexus between the basis of classification and the object of the Act. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory.
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2014 (12) TMI 1339 - CALCUTTA HIGH COURT
Maintainability of execution application - Appointment of arbitrators - Enforcement of a foreign award - interim order passed restraining the judgment debtor from withdrawing any sum from the bank accounts - GAFTA Rules - Held that:- It is an institutionalized arbitration. The rules provide the manner in which the parties are to act in matters relating to arbitration. Elaborate procedures and mechanisms are provided in the Act for conduct of the arbitration. Rule 3 of GAFTA Rules deals with appointment of the Tribunal. It clearly shows that the disputes shall be heard and determined by a Tribunal or three Arbitrators (appointed in accordance with Rule 3.2) or, if both parties agree by a single Arbitrator (appointment in accordance with Clause 3.1). Once the petitioner has named an arbitrator and sent the notice to the opposite party it was open to the opposite party either to accept the said name or to disagree with the same, not later than 9th subsequent day after serving of the said notice, failing which the consequences mentioned in the other rules shall follow - On the basis of the materials on record it cannot be said that GAFTA Rules have not been followed with regard to the appointment of the Arbitrator.
This Court is of the view that the objection raised by Mr. Mitra with regard to the maintainability of the petition cannot be accepted. Such objection is overruled. This execution application is held to be maintainable.
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2014 (12) TMI 1338 - ITAT DELHI
Penalty u/s 271(1)(c) - inaccurate particulars or concealment of income - HELD THAT:- We find that section 271(1)(c) postulates imposition of penalty for furnishing of inaccurate particulars and concealment of income. On the facts and circumstances of this case the assessee’s conduct cannot be said to be contumacious so as to warrant levy of penalty. - See Case of COMMISSIONER OF INCOME-TAX VERSUS RELIANCE PETROPRODUCTS PVT. LTD. [2010 (3) TMI 80 - SUPREME COURT] mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the Return cannot amount to the inaccurate particulars. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under s. 271(1)(c). - Decided in favour of assessee.
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2014 (12) TMI 1337 - KERALA HIGH COURT
Compounding of tax - Section 8 of the KVAT Act - dealer in Gold - AO found that the highest turn over conceded by assessee which lead to the compounding allowed for the assessment year 2006-2007 was wrong - revision of assessment - Held that:- The Deputy Commissioner is competent to revise an assessment prejudicial to the interest of the revenue, no matter, such assessment is completed based on an erroneous compounding order passed by the officer in Form No.21A which was not cancelled or revised by the Deputy Commissioner. There is no dispute that the order issued by the Deputy Commissioner under Section 35 is within the time for revision of regular assessment passed by the assessing officer under Section 17(3). So much so, the Tribunal rightly rejected the assessee's challenge against the order of the Deputy Commissioner on the ground of limitation.
Power of rectification provided under Section 66 of the KVAT Act - Held that:- Power of rectification provided under Section 66 of the KVATAct can be invoked only when apparent error is found on the face of the record. This, therefore, necessarily means that the error sought to be rectified is that committed by the assessing officer and is not an error on account of a wrong declaration made by the assessee - there are no substance in the contentions raised.
Referring to the provisions of Section 25, counsel contended that the assessment under this Section has to be based only on turn over and that in a case of compounding the said power under Section 25 cannot be invoked - Held that:- This contention also cannot be accepted. We have already seen that the assessing officer has found that the compounding allowed was vitiated for the reason that the turn over based on which compounding was allowed as conceded by the assessee was wrong and hence compounding itself is erroneous. Once it is so found, the entire turn over of the assessee has to be treated as escaped turn over. In such a situation, the entire turn over has to be treated as escaped turn over available for assessment and if so the power under Section 25 can be invoked.
The assessee had other legal contentions which were not considered by the Tribunal as according to the Tribunal the fundamental issue to be decided was if the assessing authority was within his powers to assess the dealer under Section 25. Once we uphold the competence of the assessing officer, we have to necessarily remit the cases back to Tribunal, with a direction to consider the other contentions raised by the assessee and to dispose of the appeals according to law - appeals are remitted to the Tribunal with a direction to consider the other contentions that are urged by the assessee.
Revision allowed.
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2014 (12) TMI 1336 - ITAT MUMBAI
Levying penalty u/s 271B - reasonable cause which existed in not getting the accounts audited as provided u/s 44AB - failure to get account audited - Held that:- In the perspective of “reasonable cause” still it can be said that the assessee, under the facts available on record was under a “reasonable belief” that since in the case of a commission agent the assessee has received only commission charges, consequently, other reimbursable expenses are not to be includable as income of the assessee thus from this angle also the assessee was under a bona-fide belief that he is not to get his account audited since the income was below prescribed monetary limit. Thus, there was a reasonable cause in not getting the accounts audited, so from this angle also the penalty is not imposable. In view of these facts, the appeal of the assessee is allowed.
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2014 (12) TMI 1335 - KARNATAKA HIGH COURT
Reopening of assessment - proceedings reopened after a period of 4 years - grant of benefit u/s 80(O) - Held that:- Accepting the said stand, the assessment was made and benefit under Section 80(O) was granted. With the change of the assessing authority, that too, after taking note of the assessment orders passed subsequent to the said order for the subsequent years, the assessment is sought to be reopened after a period of years. Four years is the period of limitation prescribed for the re-opening of the assessment in the sense, an assessment cannot be reopened unless the case falls within one of the exceptions mentioned in the first proviso.
If an assessment is to be reopened, the assessing authority has reasons to believe that any income chargeable to tax has escaped assessment, it is settled law that change of opinion cannot constitute a ground such as reason to believe for reopening the assessment and that is precisely what the appellate authorities have held.
If an assessment is to be reopened after four years, then the conditions stipulated in the proviso is to be fulfilled. In the instant case, the support is sought from the last ground i.e., failure to disclose fully and truly all material facts necessary for his assessment. However, there is no whisper in this regard. It is in those circumstances, both the authorities on proper appreciation of the entire material on record have concurrently held that case would not fall under Section 147 - Decided in favour of the assessee.
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2014 (12) TMI 1334 - ITAT MUMBAI
Rejection of application of registration of trust - as there is no winding up clause hence “the application cannot be said to have constituted a valid public charitable trust” - Held that:-Admittedly, as per the provisions of section 12AA(1)(b) of the Act, the authority concern is expected to satisfy himself about the objects of the trust of institution and the genuineness of its activities, but at the same time, such satisfaction is objective in nature.
DIT(E) while rejecting the application of the assessee has nowhere mentioned that he was not satisfied with the objects of the trust or genuineness of its activities. DIT(E) has merely perused the audited accounts of the assessee and receipt of donation of ₹ 6 lakh out of which ₹ 3,50,000/- were incurred for educational activities including expenses on printing and stationary, salary, uniform expenses and welfare activities. So far as, scope of powers of the ld. Commissioner/DIT(E) for the purposes of section 12AA of the Act are concerned, the Authority have to satisfy about the genuineness of its activities of the trust or institution. The objects of the trust are available at pages 11 onwards of the paper book (internal pages 5 onwards of the trust deed).
So long, the trust has the objects of charitable nature, in our view, the registration should not be denied. So far as, application of funds and as to whether the assessee can claim benefit of exemption in terms of section 11 and 12 are concerned, these has to be examined by the Assessing Officer at the stage when situation so arises. The assessee vide letter dated 21/11/212 clarified that for winding up of charitable trust section 55 of the Bombay Public Trust Act, 1950 will come into play. The totality of facts clearly indicates that it is a fit case where registration should have been granted by the ld DIT(E). However, we are making it clear that, if at any stage, the assessee trust is found violating the objects of charity or misusing the funds for non charitable purposes/commercial purposes, the Department shall be at liberty to take appropriate action in accordance with law - decided in favour of assessee.
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2014 (12) TMI 1333 - DELHI HIGH COURT
Frame the following substantial question of law:-
“Whether the Income Tax Appellate Tribunal was right in holding that the assessee is not entitled to additional depreciation of @15% or 20% under Section 32(1)(iia) of the Income Tax Act, 1961 as it existed prior to 31st March, 2006 or after 1st April, 2006 because the machinery was acquired before 31st March, 2006 but was installed after 1st April, 2006?”
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2014 (12) TMI 1332 - KERALA HIGH COURT
Legality of the ceiling proceedings initiated under the Kerala Land Reforms Act, 1963 - resume possession of about 400 acres of land - lands acquired would be treated as a 'Development Area' - whether the lands in question have been assigned in favour of HMT under the Rules or the Assignment Rules?
Held that:- Acquiring land for the establishment of a Machine Tool factory is nothing but an acquisition for the purpose of industrial development of an area in the context of Rule 2(d) of the Rules. Also Rule 23 of the Rules empowers the Government to assign land in the Development Areas dispensing with any of the provisions contained in the Rules like Rules 11 or 8. The mere fact that no restriction was made or that no land value was realised does not take the assignment out of the purview of the Rules. So is the case even if the assignment is made dehors an application routed through the Director of Industries and Commerce in the Form in Appendix I to the Rules as envisaged in Rule 5 thereof.
It is bewildering as to how the State Government could grant exemption to HMT from the provisions of Chapter III of the Act by virtue of notifications dated 29.7.1991 and 4.7.2000. The notifications were purportedly issued in public interest under Section 81(3) of the Act on account of the land being used for industrial purpose. Exemption for the entire extent was granted by notification dated 29.7.1991 and exemption for the extent of 100 acres was granted by notification dated 4.7.2000.
No proceedings could be initiated for the determination of ceiling area when the subject matter of the ceiling case is a Government land whether it be 1.4.1964 or on 1.1.1970. The assignment of Government land in favour of HMT was much after the cut off date and that too under the Rules which itself provide for various contingencies. Whether there are grounds to invoke the power of resumption under Rules 14 and 15 and the modalities thereof under Rules 16 and 17 do not arise for adjudication now.
The proceedings being continued on the file of the Taluk Land Board, Kanayannur in M2724/89 against HMT as a holder of excess lands do not have the sanction of law and are to be aborted - The impugned order of the Taluk Land Board directing HMT to surrender 251.40.000 acres as lands held in excess of the ceiling area is hereby set aside - petition allowed.
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2014 (12) TMI 1331 - GUJARAT HIGH COURT
Entitlement for deduction u/s 80IA - “basic telephone services” provider - whether assessee who are franchisees of BSNL and who have been permitted to install, maintain and operate in-dialling PABX under franchisee to support the department, can be treated to have provided “basic telephone services” entitling them for deduction u/s 80IA? - Held that:- As decided in assessee's own case for the assessment year 1998-99 the assessee have made huge investment in setting up and maintaining the entire PABX. In view of the agreement between the parties which has been minutely considered by this Court, the services provided by the assessee shall fall within the definition of ‘basic telephone service’ and therefore they shall be entitled to deduction u/s 80IA. The Tribunal has not committed any error in reversing the orders passed by the AO. The Tribunal had examined all the aspects of the case and concluded that the assessee were providing basic telecommunication service and were entitled to deduction under section 80IA(4)(ii).
Tribunal is right in law and on facts in holding that the assessee who are franchisees of BSNL and who have been permitted to install, maintain and operate in-dialling PABX under franchisee to support the department, can be treated to have provided “basic telephone services” entitling them for deduction u/s 80IA - Decided in favour of assessee.
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2014 (12) TMI 1330 - DELHI HIGH COURT
Partition of property - joint property or not - failure to file affidavits by plaintiffs.
Held that:- The evidence of the plaintiffs is liable to be closed mainly on the two reasons; firstly he has referred to section 35 of the cpc that the cost has not been paid by the plaintiffs and in failure to do so, the plaintiffs are not entitled to proceed further with the matter and secondly he states that more than four adjournments have been granted and the plaintiffs right to adduce the evidence is liable to be closed.
The evidence of the plaintiffs is liable to be closed. Even otherwise, this Court is doubtful if the plaintiffs have any case on merit against the defendant in view of the pleadings of the parties and documents produced.
This is a fit case for closing the evidence of the plaintiffs - suits of plaintiffs dismissed.
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2014 (12) TMI 1329 - GAUHATI HIGH COURT
Legality of the impugned N/N. 17/2008 dated 27.3.2008 and N/N. 31/2008 dated 10.6.2008 - benefit of complete exemption of Central Excise Duty for a period of 10 years from the date of commercial production as granted vide Central Excise N/N. 32/1999 and N/N. 20/2007 by restricting the excise duty refund to a particular percentage of the total duty payable.
Held that:- All the industries set up pursuant to the policy of 1997 and 2007 shall continue to enjoy the benefits of full exemption as per the policy and the notifications - Petition allowed.
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2014 (12) TMI 1328 - ITAT MUMBAI
TDS u/s 194J - amount received from the insurance companies and deposited in Float A/c by the assessee being Third Party Administrator (TPA) - addition u/s 40(a)(ia) - Held that:- This issue is covered in favour of the assessee by the decisions of this Tribunal in the case of ACIT Vs. Health India TPA Services P. Ltd. [2014 (2) TMI 1153 - ITAT MUMBAI] as well as the decision in the case of Paramount Health Services (TPA) Pvt. Ltd. Vs. ITO [2015 (3) TMI 185 - ITAT MUMBAI]. We find that an identical issue has been considered by this Tribunal in those cases by holding that the payment made by the assessee is only to replenish the amount in floating account and, therefore, the disallowance u/s 40(a)(ia) cannot be made when the assessee has not claimed any such expenditure in P&L Account. - Decided in favour of assessee.
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2014 (12) TMI 1327 - MADRAS HIGH COURT
Principles of forum conveniens - grant of leave or revocation to sue under Clause-12 of the Letters Patent - Whether the situs of the Trade Mark Registry in Chennai and the name being on its register would itself give rise to cause of action to institute a suit in the Madras High Court? - Whether the principles of forum conveniens or analogous principles apply to consideration of an application for leave to sue under Clause 12 of the Letters Patent in case part of cause of action arises at Chennai?
Held that:- Mere registration of the trademark at Chennai would not create the complete cause of action at Chennai. The registration of the mark is a fact, but cause of action would consist of a bundle of facts. Thus, more than one fact would have to be taken into account to determine the location of a particular trademark which connects the trademark to the place - The weight given to each factor should be related to the purpose for which the situs was being determined and thus, mere registration of a trademark at a particular place would not be finally determinative of the situs of the trademark. The situs would depend upon the facts of each case and the factor that connect the trademark to that place.
Thus, the fact that the situs of the registration of trademark is with the Trademark Registry at Chennai by itself would not be sufficient to give rise to cause of action to institute the suit in the Madras High Court, though it may be a factor to be taken into account, among the bundle of facts, for purposes of determining the situs of the cause of action.
There is little doubt that the principles of forum conveniens, though not applicable to civil proceedings, have a role to play insofar as the consideration of grant of leave or revocation thereof under Clause 12 of the Letters Patent is concerned. This is irrespective of the fact as to what expression is used - in considering an application for grant of leave or revocation thereof, the appropriateness or suitability of the forum would be material and to that extent, principle akin to forum conveniens would apply.
Appeal disposed off.
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