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Showing 1 to 20 of 2843 Records
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2015 (10) TMI 2854
Sanction of scheme of amalgamation - HELD THAT:- Pursuant to the report of the Official Liquidator, it is ordered that, the petitioner company shall preserve its books of accounts, papers and records and not dispose of the records without prior permission of Central Government as per the provisions of Section 396(A) of the Companies Act, 1956 and shall not be absolved from any statutory liability. Considering the above, it is ordered that, the scheme at Exhibit `C’ to the petitions is hereby sanctioned.
Company Petitions are allowed.
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2015 (10) TMI 2853
Accrual of income in India - treating receipt from sale of software product as royalty and subjecting it to tax - PE in India or not? - assessee an American Company is engaged in the business of providing information solution - as argued such income has not been offered to tax on the reasoning that as the assessee is not having a P.E. in India such income being in the nature of business income is not taxable under the provisions of India USA DTAA
HELD THAT:- On a perusal of the material on record, it is seen that identical dispute came up for consideration before the co-ordinate bench of the Tribunal in assessee’s own case for the assessment year 2007-08[2011 (11) TMI 887 - ITAT MUMBAI] wherein after considering the terms of both the agreements as well as other relevant facts came to conclude that the receipts from sale of computer software products is not royalty but business income.
in the assessment year 2007-08 also, the Departmental Authorities treated the receipt from sale of software product as royalty solely relying upon the nomenclature of the product given in the invoice as “intellectual” value which is also the case in the impugned assessment year.
Tribunal, taking into consideration such fact has given a categorical finding that the amount received by the assessee towards sale of software products cannot be treated as royalty and thereby accepted assessee’s claim of business income. As there is no material difference in the facts considered by the Tribunal in assessment year 2007–08 and the impugned assessment year, we accept assessee’s claim that the amount received from sale of software product cannot be considered as royalty but is the business income of the assessee, hence, as per the provisions of India–USA treaty it is not taxable in absence of a P.E - Assessee appeal allowed.
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2015 (10) TMI 2852
Refund of unutilized CENVAT Credit - Export of exempted service - It was held by CESTAT that respondent assessee will be entitled to refund as held by the impugned appellate order - HELD THAT:- Issue notice - Tag with SLP(C) No.29712 of 2014.
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2015 (10) TMI 2851
Kidnapping and Murder - destroying the evidence - application for leading additional evidence at the appellate stage - HELD THAT:- It has been the consistent defence of the Appellant that the dead body found in agricultural fields in District Muzaffar Nagar was that of Pushpa Verma and he went to the extent of producing photograph of the dead body in the present trial. He also examined Brahm Pal Singh, Sub-Inspector and other witnesses. It was certainly possible to examine Forensic Expert at the trial court stage itself and the High Court was right and justified in rejecting the prayer to lead additional evidence at the appellate stage - The exercise undertaken by that expert is to start with the admitted photograph of Pushpa Verma on a computer, then remove the "bindi" by some process on the computer, then by same process remove her spectacles and by computer imaging change the image as it would have looked if the lady was lying down in an injured condition. The computer image so changed was then compared with the photograph of the dead body - there are no reason to differ from the view taken by the High Court.
The transactions as have been admitted by the Appellant. The signatures alleged to have been put by Pushpa Verma on said documents is seen - the signatures are compared and it is found that the view taken by the High Court in that behalf to be correct. It is impossible and inconceivable that a lady who had retired as head mistress would mis-spell her own name while putting signatures. The flow of signature as evident from the admitted source is completely of a different nature. The signatures on the documents in question, to a naked eye, cannot be that of Pushpa Verma. Further, there is no reason why a lady who has two sisters and two Advocate nephews staying in same town, would give power of attorney and execute a Will in favour of a total stranger. These circumstances are clinchingly against the Appellant. His assertion that he had made over the payments received in cash to Pushpa Verma is not supported by any material on record. In fact, the Appellant kept receiving payments even in the month of March, 2003. None of the payments are reflected in the account of Pushpa Verma. Receipt of Rs. 1,00,000/- by way of cheque in the name of Appellant himself is also a circumstance against the Appellant. The evidence thus shows that the Appellant had fabricated the documents in question and was attempting to defraud Pushpa Verma, as stated in the extra judicial confession.
There is nothing on record to show that the Appellant had undertaken any attempt, if he was genuinely acting as power of attorney on her behalf. It is satisfying that the circumstances on record, even if to disregard that relating to the recovery of Voter Identity Card Ext.P-12, do suggest only one hypothesis and that is the guilt of the Appellant. The defence set up by the Appellant does not inspire any confidence and merits rejection.
The appeal, therefore fails and is dismissed.
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2015 (10) TMI 2850
Addition u/s 40A - assessee had paid excessive interest - this interest was @ 12% paid to depositors who are not family members, 15% to relatives and 18% to the associated concern - AO adopted uniform interest rate in all the above three categories to be @ 15% resulting in the impugned disallowance - HELD THAT:- We find that the hon’ble jurisdictional high court in Sarjan Realities Ltd.[2014 (8) TMI 206 - GUJARAT HIGH COURT] holds that solely because an assessee had paid an interest to different parties would not itself be a ground to come to conclusion that payment of interest to related companies at rate other than that paid to other parties was excessive and unreasonable resulting in section 40A(2)(b) addition in question. We reiterate that neither of the lower authority gives an independent finding of such an excessive component over and above the prevailing market interest rate. The Revenue fails to point out any distinction on facts or law. We accept assessee’s arguments and delete the impugned addition - Assessee’s appeal is allowed.
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2015 (10) TMI 2849
Illegal Gratification - plea of the accused was that target was fixed by the Department to collect contribution for purchase of National Savings Certificate and the amount that was given by the complainant was towards that only - HELD THAT:- The prosecution has not examined any other witness present at the time when the money was demanded by the accused and also when the money was allegedly handed-over to the accused by the complainant. The complainant himself had disowned his complaint and has turned hostile and there is no other evidence to prove that the accused had made any demand. In short there is no proof of the demand allegedly made by the accused. The only other material available is the recovery of the tainted currency notes from the possession of the accused. The possession is also admitted by the accused. It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence Under Section 7, since demand of illegal gratification is sine-qua-non to constitute the said offence. The above also will be conclusive insofar as the offence Under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn Under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow.
In the present case the primary facts on the basis of which the legal presumption Under Section 20 can be drawn are wholly absent - the conviction of the Appellant Under Section 7 and under Section 13(1)(d) read with Section 13(2) of the Act and the sentences imposed are set aside and he is acquitted of the charges - Appeal allowed.
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2015 (10) TMI 2848
Unexplained investment in construction of residential building - Addition merely on the basis of DVO’s report - CIT(A) has deleted the addition - HELD THAT:- Mere valuation report is not sufficient to conclude that the assessee has made unexplained investment. From perusal of the assessment, nowhere it reveals that inspite of search, Revenue was in a position to lay its hands on any material exhibiting the unexplained investment made by the assessee, over and above one stated in the books of accounts.
FAA is of the opinion that the addition cannot be made merely on the basis of DVO’s report, and there should be some other incriminating material to support the case of the Revenue. No reason to interfere in the order of the CIT(A), which is confirmed and the ground of appeal of the Revenue is dismissed.
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2015 (10) TMI 2847
Fund mobilising activity from the public - offer and issuing Redeemable Preference Shares (RPS) - Company and its directors are restrained from carrying on with their fund mobilizing activity - violation of the provisions of sections 56, 60 read with section 2(36), 73 of the Companies Act, 1956 r.w.s. 465 of the Companies Act, 2013 and the SEBI (DIP Guidelines – since rescinded) read with SEBI (ICDR Regulations) - HELD THAT:- Company has made multiple allotments on a monthly basis during the financial years 2009-2010, 2010-2011 and 2011-2012. It can be seen that on every allotment (excluding the solitary allotment made on 30.04.2009), the number of persons to whom RPS were allotted always exceeded 49. The Company is not an NBFC or a Public Financial Institution within the meaning of Section 4A of the Companies Act, 1956 to be covered under the second proviso to section 67(3) of the Companies Act, 1956. Therefore, considering the number of persons from whom monies were mobilized by the Company by issuing RPSs, which is definitely more than 49 persons, it can be concluded that the Company had made a public issue of RPS in terms of the first proviso to section 67(3) of the Companies Act, 1956. Further, the manner of making such offer and issuance of RPS adopted by the Company (i.e., series of allotments made consistently every month) can be definitely held to be a ploy employed by the Company to circumvent the provisions of the first proviso to section 67(3) of the Companies Act, 1956.
In view of the above observations, by virtue of section 55A(a) and (b), the SEBI has jurisdiction and would govern the issue of RPS as the same was made to more than 49 persons. As alleged in the SEBI Order, the Company was mandated to comply with the provisions of sections 56, 60 and 73 of the Companies Act, 1956 read with Companies Act, 2013 and the DIP Guidelines read with the ICDR Regulations, in respect of its offer and issue of RPS.
As Company did not comply with the public issue norms mandated under sections 56, 60 and 73 of the Companies Act, 1956 read with the Companies Act, 2013 and the DIP Guidelines read with the ICDR Regulations in respect of its offer and issue of RPS made during the financial years 2009-2010, 2010-2011 and 2011-2012. The Company is therefore liable for appropriate regulatory action.
6 persons (present and past directors) are liable for the violations committed by the Company as found in this Order and also liable for making refunds under section 73(2) of the Companies Act, 1956 read with section 27 of the SEBI Act and the DIP Guidelines. Thus it becomes necessary to issue directions for refund against the Company and its directors and other directions in the interest of investors and the securities market.
Order:- Company jointly and severally, shall forthwith refund the money collected by the Company through the issuance of Redeemable Preference Shares (which have been found to be issued in contravention of the public issue norms stipulated under the Companies Act, 1956 and the DIP Guidelines), to the investors including the money collected from investors, till date, pending allotment of securities, if any, with an interest of 15% per annum compounded at half yearly intervals, from the date when the repayments became due (in terms of Section 73(2) of the Companies Act, 1956) to the investors till the date of actual payment.
The repayments to investors shall be effected only in cash through Bank Demand Draft or Pay Order.The Company/its present directors are permitted to sell the assets of the Company only for the sole purpose of making the refunds as directed above and deposit the proceeds in an Escrow Account opened with a nationalised Bank.
The Company and its promoters and directors shall issue public notice, in all editions of two National Dailies (one English and one Hindi) and in one local daily (in Bengali) with wide circulation, detailing the modalities for refund, including details of contact persons including names, addresses and contact details, within fifteen days of this Order coming into effect. After completing the aforesaid repayments, the Company shall file a certificate of such completion with SEBI, within a period of three months from the date of this Order, from two independent peer reviewed Chartered Accountants who are in the panel of any public authority or public institution.
The Company, its directors and former directors are also directed to provide a full inventory of all their assets and properties and details of all their bank accounts, demat accounts and holdings of shares/securities, if held in physical form.The Company is directed not to, directly or indirectly, access the capital market by issuing prospectus, offer document or advertisement soliciting money from the public and are further restrained and prohibited from buying, selling or otherwise dealing in the securities market, directly or indirectly in whatsoever manner, from the date of this Order till the expiry of 4 years from the date of completion of refunds to investors as directed above.) The directors including former directors restrained from accessing the securities market and further prohibited from buying, selling or otherwise dealing in the securities market, directly or indirectly in whatsoever manner, with immediate effect.
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2015 (10) TMI 2846
Addition of cash credit u/s.68 - whether Assessee has discharged the onus of proving the identity and capacity of the creditor? - CIT(A) deleted the addition - HELD THAT:- CIT(A) while deleting the addition has given a finding that Assessee had submitted the copy of Pan Card, Address, confirmation letter, copy of return and bank statement of RSA Marketing, the party from whom the Assessee had received loan. She has further given a finding that the loan was taken by cheques and the perusal of the bank statement of RSA Marketing did not reflect any cash deposits immediately before issuing cheques to the Assessee.
She has further noted that Assessee has discharged the onus of proving the identity and capacity of the creditor and also the genuineness of loan transaction. Before us, Revenue has not brought any material on record to controvert the findings of ld. CIT(A). No reason to interfere with the order of ld.CIT(A) and thus this ground of Revenue is dismissed.
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2015 (10) TMI 2845
Unexplained cash deposits in bank account u/s.68 - no narration of cash deposit and withdrawal has been given - assessee submitted that the authorities below failed to appreciate the fact that the assessee had been withdrawing and depositing the amount with ICICI Bank - HELD THAT:- We find that both the authorities below have failed to appreciate the fact that on various occasions, the assessee has withdrawn from the same account and deposited in the bank after a week’s time.
In our considered view, this amount should not have been added to the total income of the assessee. It is settled position of law that only unexplained deposit could be subjected to tax. If an assessee is able to demonstrate that he had deposited the amount earlier withdrawn from the same account, in that case, the AO would not be justified to subject both the credits to tax.
Assessee in respect of other deposits could not give any satisfactory explanation, therefore we hereby direct the AO to make addition on the basis of the peak-credits. AO is directed to compute the peak-credits and make addition accordingly. Ground raised in the assessee’s appeal is allowed for statistical purposes.
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2015 (10) TMI 2844
TDS u/s 194J - Non deduction of TDS on “Portfolio Management Fees” - addition u/s 40(a)(ia) - HELD THAT:- We find that the Co-ordinate Bench of Tribunal in the case of Hiren Valves Pvt. Ltd.. [2014 (9) TMI 1275 - ITAT AHMEDABAD] on identical issue has held that only the services rendered by a person in the course of carrying out listed professions and other notified professions constitutes “fee for professional services” and only the payment in connection with those services attract the provision for Section 194J.
Revenue has not pointed any distinguishing features in the present case and that of Hiren Valves (supra) nor has demonstrated as to why the aforesaid decision rendered by the Co-ordinate Bench could not be applied to the facts of the present case. We therefore, hold that no disallowance of expenses u/s. 40(a)(ia) in respect of payment of management fees was called for in the present case. We therefore direct its deletion. Thus the ground of Assessee is allowed.
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2015 (10) TMI 2843
Maintainability of petition - availability of alternative remedy - Jurisdiction of Tribunal - petitioner submits that the Tribunal exceeded its jurisdiction while passing the orders impugned without deciding the question as to whether the original application itself is maintainable or not being barred by limitation.
HELD THAT:- The remedy given under Article 226 being discretionary is subject to several checks. The checks mostly are self-imposed and as a rule of policy with a view that extraordinary remedy should always be exercised in extraordinary circumstances only. The remedy given must not be treated at par or alike other statutory remedies. A prominent self-imposed restriction in exercise the discretion given under Article 226 of the Constitution is the principle of exhausting all other statutory remedies before approaching writ court. It is a rule of convenience and discretion and does not oust the jurisdiction of a writ court, but indicates a caution in exercising extraordinary constitutional authority.
The petitioner herein seeks a deviation from the doctrine of exhausting all other remedies before approaching writ court with allegation that the tribunal under the orders impugned exceeded jurisdiction vested with it as the original applicant is barred by limitation and further the issue agitated in this regard has yet not been decided.
In the case in hand original applicant Shri Digvijay Singh, preferred a petition for writ before a Division Bench of this Court with an allegation of violation of Article 21 of the Constitution of India, but looking to the remedy provided under the Act of 2010 the same was transferred to the tribunal. Chapter-III of the Act of 2010 relates to jurisdiction, powers and proceedings of the Tribunal. As per Section 14 of the Act of 2010, the Tribunal have original jurisdiction to hear all civil cases in which a substantial question relating to environment in respect of the acts mentioned in Schedule-I is involved. The Tribunal acts as the first fact finding authority and exclusively hears all applications raising concerned with respect to substantial question relating to environment. The jurisdiction vested with the Tribunal is very wide and that covers not only damage already caused, but even the matter proposed to prevent any damage i.e. expected to be caused in case certain activities resulting in degradation of environment are not stopped immediately. In view of Section 14 of the Act of 2010 there is no doubt that the cause agitated by the original applicant is within the jurisdiction of the Tribunal. The only question is with regard to filing of the application within the limitation prescribed.
The remedy given by the legislature to the Supreme Court as per Section 22 of the Act of 2010 is with a caution that even appeal may be filed on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 and that indicates intention of the legislature for minimal interference with the orders passed by the Tribunal. The remedy given under Section 22 of the Act of 2010 by no stretch of imagination can be termed and treated as not efficacious to meet the injury, if any caused to the petitioner, and if that involves any ground as required to invoke Section 100 of the Code of Civil Procedure.
The most important aspect of the matter is that the remedy provided under the Act of 2010 is before the Hon'ble Supreme Court of this country. The Tribunal as per Section 20 of the Act of 2010 is under statutory obligation to apply the principles of sustainable development, the precautionary principle and the polluter page principle. Instant one is a case where an admitted polluter is demanding the shield of fundamental right to protect his business which is subject to statutory conditions. It is also relevant to notice that Section 29 of the Act of 2010 puts a bar upon civil courts to entertain any appeal in respect of any matter which the Tribunal is empowered to determine.
Having considered all these aspects of the matter the writ jurisdiction vested not invoked in the instant matter - petition dismissed.
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2015 (10) TMI 2842
Calculation of CENVAT credit to be availed by a DTA unit in respect of inputs procured from 100% EOU - value of Basic Customs Duty (BCD) as leviable or what has exactly been paid by 100% EOU will be leviable.
Revenue's objection is that the formula, as prescribed under the said Rule denotes the BCD actually paid by the 100% EOU and not the BCD leviable on like goods if imported into India.
HELD THAT:- The said issue stands decided by the Tribunal in the appellant's own case M/S. MICRO LABS LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (10) TMI 1788 - CESTAT BANGALORE] wherein by taking note of a precedent decision in the case of SV. SALES CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE, SURAT [2013 (9) TMI 209 - CESTAT, AHMEDABAD] it stands held that the BCD, mentioned in the said formula, refers to the BCD leviable on the like goods if imported into India.
The impugned order set aside - appeal allowed.
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2015 (10) TMI 2841
Dishonour of Cheque - acquittal of the accused - discharge of any debt or other liability - rebuttal of presumptions - Whether the transactions in question were simple lending of money for which the appellant/complainant had no valid licence and hence the provisions of Section 138 or 139 of the N.I. Act is not attracted in the case?
HELD THAT:- There cannot be any dispute to the fact that the presumptions both in Section 118 and 139 of the N.I. Act are rebuttable presumptions. In the present case the only point for rebuttable of such presumptions for the respondents/accused is that the transactions in question are illegal transactions as the appellant/complainant has no money-lending licence. As held earlier, lending money without having a money-lending licence itself is not prohibited under the Bengal Money-Lender's Act, 1940. So, the presumptions in favour of the appellant/complainant stand unrebutted. The respondents/accused cannot, therefore, escape from the liability under Section 138 of the N.I. Act, especially when there is no denial of the fact that the respondents/accused issued the cheques in question which were dishonoured due to insufficient fund in the account of the respondents/accused.
The order passed by the learned Metropolitan Magistrate, 6th Court, Calcutta on 29.06.2013 in case No. C-15450/2011 acquitting the respondents/accused is hereby set aside. All the respondents/accused are found guilty of the offence under Section 138 of the N.I. Act and all the respondents/accused are convicted accordingly.
All the respondents/accused are found guilty of the offence under Section 138 of the N.I. Act. Respondents/accused number 2 and 3, namely, Mahendra Kumar Patni and Anjani Kumar Shahi are sentenced to suffer Simple Imprisonment for six months each. They are also directed to pay compensation to the appellant/complainant under Section 357(3) of the Code of Criminal Procedure @ rupees 50,00,000.00 (rupees fifty lakh only) each, in default, they will suffer Simple Imprisonment for two months more. The respondents/accused company, i.e., respondent number 1 is also directed to pay compensation to the appellant/complainant for an amount of rupees 2,50,00,000.00 (rupees two crore and fifty lakh only) under Section 357(3) of the Code of Criminal Procedure within two months from this date failing which the amount would be realised from the company according to the provisions in law.
Appeal allowed.
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2015 (10) TMI 2840
Exemption u/s 11 - accumulation not made as per law and assessed it as AOP - objects specified in Form No. 10 for accumulation of income were too vague and further there was no need for assessee to accumulate funds for the purpose of salary as it has enough funds including grants received from State Government for this purpose - Assessee stated that the assessee is a society registered under section 12A of the Act since 2005 - whether assessee has accumulated the funds as per law? - HELD THAT:- On perusal of the bye laws of the assessee society, we see that hiring of staff and utilization of funds for welfare of patients are two objects of the society. Therefore, it cannot be said that the objects which are stated for the purpose of accumulation of funds under Form No.10 are outside the objects as provided in the bye laws of the society. The contention of the AO is that these objects are too vague and are not specific.
No reason for not granting assessee the benefit of such accumulation given the fact that the accumulation is sought for the purpose of its objects on the basis of which it was granted registration u/s 12A - We do not even find the objects stated in the Form No.10 too vague either, as these are the objects as per the bye laws. Admittedly, the objects stated in Form No.10 are not elaborately stated, but that cannot be the reason to deny the said benefit.
Thus we find that there is no vagueness in the purposes specified by the assessee in Form No.10.
Assessee has enough funds for the purposes of salary to be paid in the form of grants received from the State Government as well as the unutilized amount of grant so received by the assessee - It is not the Assessing Officer’s case that the assessee has not complied with any of these conditions. His only concern is the availability of a huge amount of funds for the said purpose. AO in this regard has to confine himself to the provision of the Income Tax Act read with the Income Tax Rules only.
AO does not have any prerogative to comment on the way the activities are to be carried on by the assessee. How much funds are needed for which purpose and how funds are to be used for different purposes is none of the Assessing Officer’s concern. It is only assessee’s own way of functioning. AO cannot sit on the armchair of the assessee to decide all these things, given the fact that the Income Tax Act does not give him any such power. Whether the assessee is receiving excess grant or whether it is in need of such grants may be the concern of the granting authority or that the assessee, but certainly not of the AO.
We find that this issue raised by the AO to be not relevant for giving benefit of accumulation. benefit of accumulation of funds as provided u/s 11(2) allowed - Decided in favour of assessee.
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2015 (10) TMI 2839
Setting aside the award under execution - Section 47 of the Code of Civil Procedure - dispute relating to title and possession over immovable property and all the respondents are private persons not discharging any public duty - applicability of Article 226 of the Constitution of India invoking extraordinary writ jurisdiction of this Court - HELD THAT:- A proceeding before the civil court under Section 36 of the Act 1996 for the enforcement of an arbitral award is a proceeding under the said Act and not a proceeding under the Civil Procedure Code. As a necessary corollary, the resort to the provisions of the Civil Procedure Code for raising objections having the propensity to annihilate the award, which has been brought before the civil court only for the purpose of enforcement, is clearly excluded. The main submission on behalf of the petitioner that the civil court, at the stage of enforcement of the award, can invoke its jurisdiction, inherent or otherwise provided in the Civil Procedure Code and exercisable in the proceeding for execution of a decree, to examine the legality and validity of the award, is therefore held to be not tenable. A new avenue dehors the provisions of Act, 1996 to challenge the award cannot be permitted at the stage of its enforcement before the civil court in view of the express exclusion of judicial intervention under general law procedure as envisaged in Section 5 of the Act, 1996.
This Court therefore, comes to the conclusion that the provisions of Section 47 or Order 21 Rule 97 to 101 C.P.C. have no application to a proceeding under Section 36 of the Act, 1996 instituted for enforcement of an arbitral award. The learned court below has correctly appreciated the law in this regard and has committed no error in declining the prayer of the petitioner.
The prayer to annul the award raised at the stage of its enforcement under Section 36 of the Act, 1996 under the provisions of Civil Procedure Code cannot be entertained by the court, this Court refrains from proceeding to express opinion on this controversy - the present writ application under Article 227 of the Constitution of India is dismissed.
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2015 (10) TMI 2838
Gains arising from sale of land - Nature of land sold - correct head of income - business income OR capital gains - period of holding of asset - contention of the assessee was that the assessee has sold part of the land after holding it for a period of 20 years and utilizing it for agricultural purposes during the said period without effecting any kind of improvement on the land, therefore, earning of sale of land has to be treated as capital gain and not profit and gains of business and profession - HELD THAT:- The land has been recorded in the Revenue records as agricultural land, there is nothing on record to show that the entry was wrong.
As in the case of CIT v Sohan Khan [2008 (4) TMI 142 - RAJASTHAN HIGH COURT] made a remarkable observations and stated that in the absence of anything to show that assessee had purchased the land with the intention to sell it at a profit or that the assessee is a regular dealer in real estate, piecemeal sale of land by the assessee by earmarking plots constituted disposal of capital asset and not an ‘adventure in the nature of trade’ and therefore, surplus is taxable as capital gains.
Also in Pai Provision Stores [2011 (8) TMI 725 - KARNATAKA HIGH COURT] held that even though development and sale of property was one of the object of the assessee firm, the assessee was in fact not carrying on that business hence income from sale of part of developed property, which was utilized in clearing the debts incurred in development of property was capital gains and not business income, more so even the remaining property was used by assessee in carrying out its business and letting out to tenants.
In the instant case, the assessee sold part of the agricultural land holding for last 20 years and entire sale proceeds were invested in constructing the residential house, which clearly suggest that assessee is not in the business of sale / purchase of immovable property and, therefore, the stand taken by the authorities below are not sustainable. Decided in favour of assessee.
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2015 (10) TMI 2837
Penalty u/s 271(1)(c) - disallowance made for no explanation regarding non-maintenance or non-production of bills/vouchers could be furnished by the assessee - income of the assessee was estimated by the Assessing Officer and the addition was sustained by the learned CIT(A) - HELD THAT:- As in the absence of supporting evidence for allowability of the expenses claimed by the assessee, certain disallowance made could be sustained but this fact alone is not sufficient to sustain the penalty imposed u/s 271(1)(c) of the Act. There is no material brought on record on behalf of the Revenue to suggest that the assessee was guilty of concealment of income or filing of inaccurate particulars of income.
Merely because the assessee could not file the supporting vouchers/bills for the expenses claimed by it, it could not be concluded that the assessee has claimed bogus expenses and could be penalized u/s 271(1)(c) of the Act. The conduct of the assessee was bona-fide and the assessee has filed an explanation before the Revenue authorities. In the facts of the case, we are of the view that it was not a fit case for levy of penalty u/s 271(1)(c) of the Act, which is accordingly cancelled and the ground of appeal of the assessee is allowed.
Penalty u/s 271(1)(b) - As assessee was required to file certain information/documents before the Assessing Officer before the completion of assessment proceedings. However, the assessee has failed to comply with the statutory requirement without any valid reason and therefore, in my view, the penalty imposed at ₹ 10,000/- u/s 271(1)(b) of the Act was reasonable and is accordingly confirmed and the ground of appeal of the assessee is dismissed.
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2015 (10) TMI 2836
CENVAT Credit - supplier not paying duty on inputs - Revenue is of the view that as the supplier of these inputs namely SE copper wire is not liable to pay duty as SE Copper wire is not dutiable, therefore, the respondent is not entitled to take Cenvat credit - HELD THAT:- The facts of the case are not in dispute. As the respondent has paid the duty on SE Copper wire purchased from the supplier and taken the Cenvat credit. Although SE Copper wire is not dutiable but the respondent has paid the duty, they have taken Cenvat credit correctly as per Rule 3 of the Cenvat Credit Rules, 2004.
There are no merit in the Revenue’s appeal - appeal of Revenue dismissed.
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2015 (10) TMI 2835
Dishonour of Cheque - insufficiency of funds - legally enforceable debt - rebuttal of presumption - acquittal of accused - mandatory presumption of law under Section 118 and 139 of the NI Act - Burden to prove - HELD THAT:- Once the payment was not found to have been made on execution of agreement, the execution of promissory note on the same day i.e. 16.09.2008 (Ex. CW1/B) also became operative only on the contingency of the loan having being advanced. The Appellate Court, therefore, was of the view that the agreement was executed without any actual transfer of money. The printed proforma which contained the signature and the thumb print of the respondent were filled up with two different inks - in the absence of any proof of the amount of loan to have been paid, the promissory note and the agreement referred above lost all its efficacy and force. A promise for no consideration is a void agreement.
Under Section 139 of NI Act, unless the contrary is proved, the holder of the cheque shall be presumed to have received the cheque in discharge of any debt or liability - Sub-clause (a) of Section 118 of the NI Act, inter-alia, provides that unless the contrary is proved, the drawn up negotiable instrument, if accepted, has to be presumed to be for consideration.
In GOAPLAST (P.) LTD. VERSUS CHICO URSULA D’SOUZA [2003 (3) TMI 533 - SUPREME COURT], the Supreme Court has held that that the provisions of section 138 to 142 of the NI Act, is for the purpose of giving credibility to negotiable instruments in business transactions. In view of section 139 of the NI Act, it had to be presumed that a cheque is always issued in discharge of any debt or other liability. The presumption could be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption.
In RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT], section 139 of the NI Act is stated to be an example of a reverse onus clause which is in tune with the legislative intent of improving the credibility of negotiable instruments. Section 138 of the NI Act provides for speedy remedy in a criminal forum, in relation to dishonour of cheques. Nonetheless, the Supreme Court cautions that the offence under Section 138 of the NI Act is at best a regulatory offence and largely falls in the arena of a civil wrong and therefore the test of proportionality ought to guide the interpretation of the reverse onus clause. An accused may not be expected to discharge an unduly high standard of proof. A reverse onus clause requires the accused to raise a probable defence for creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof for doing so would necessarily be on the basis of "preponderance of probabilities" and not "beyond shadow of any doubt".
Thus, on an analysis of fact, the scale of balance tills in favour of the respondent. The respondent appears to have rebutted the presumption under Section 139 of the NI Act, namely, the existence of a legally enforceable debt by establishing that no loan was advanced to him even though there was an agreement and a corresponding promissory note and an affidavit. The aforesaid loan was not shown in the ITR return of the petitioner. An adverse inference could be drawn against the petitioner on that account. The loan amount also appears to be doubtful.
Section 378(4) of the Cr.P.C. would apply not only to an original order of acquittal in a case of complaint but also to an order of acquittal passed by the Sessions Court in appeal. There is nothing in Section 378(4) of the Cr. P.C. to limit its application only to the order of acquittal passed in the first instance by the Trial Court - Sub-Clause (4) of Section 401 of Cr.P.C. provides that when an appeal is provided for and no such appeal is filed, no proceeding by way of revision shall be entertained at the instance of the party, who could have appealed. Sub-clause 5, however, permits the High Court on its satisfaction about the interest of justice to treat the application of revision as petition of appeal and deal with the same accordingly.
The successful rebuttal of the presumption under Section 139 of the NI Act of any legally enforceable debt, and the petitioner failing in discharging his onus, in the second instance, the petition is dismissed - The respondent no. 2 stands acquitted.
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