|
Advanced Search Options
Case Laws
Showing 61 to 80 of 1426 Records
-
2015 (7) TMI 1373
Dishonor of cheque - time limitation - cheque was issued towards discharge of a legally enforceable debt or not.
Time Limitation - what should be the date of 'receipt of the notice' in a case where there is a deemed service, in which the drawer has either refused or the notice is returned as unclaimed. Whether it would be the actual date of the refusal or the date on which the drawer has unclaimed the envelope or it would be the date of intimation of such refusal to the payee? - HELD THAT:- In the case of a service by post, the same shall be deemed to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document and unless the contrary is proved, it will be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post - it would be the date on which the drawer has actually refused or has unclaimed the envelope, which will have to be reckoned as the date of deemed service and not the date on which the intimation of refusal is received by the payee.
The provisions contained under Section 138 of the Act being penal in nature and moreso providing for a reverse onus, have to be strictly complied and when the Legislature has purposely used the term "from receipt of the notice", it would not be possible to read into it the date of receipt of the intimation of the refusal, as the relevant date (in a case of deemed service/refusal of the notice by the accused). That, in my humble view, would be, doing violence to the language, which is otherwise plain and explicit. I also find that the possible prejudice, if any or the disadvantage caused to the complainant on account of the delayed receipt of an intimation of refusal can be adequately taken care of by the provisions permitting condonation of delay in filing the complaint. This is not to suggest that in every case this would be a sufficient ground for condonation of delay - the learned Magistrate has rightly come to conclusion that the complaint was not filed within time as the date of refusal has to be reckoned as 24/05/2011 and the complaint is filed on 13/07/2011. The learned Magistrate has also noticed that there was no prayer for condonation of delay. Even in the appeal or arguments advanced at the bar, it was not urged that the delay, if any, may be condoned. The appellant all along claimed that the complaint is filed within time. Be that as it may, in the result, the point No. 1 is answered in the negative.
Whether the cheque was passed in discharge of a legally enforceable debt or liability, would fall into insignificance as the finding on the point No. 2 one way or other would not change the ultimate result of dismissal of the complaint? - HELD THAT:- In a case, where the accused admits the signature on the cheque, a presumption arises under Section 139 of the Act in favour of the complainant. It is now well settled that while the prosecution is obliged to prove its case beyond reasonable doubt, the accused can prove his defence or rebut the presumption as is available to the complainant under Section 139 of the Act, on mere preponderance of probability - The presumption under Section 139 of the Act is a statutory presumption, which is evident from employment of the word 'shall'. Thus, the Court is obliged to raise such a presumption once the facts necessary for raising of such presumption are established. It is further well settled that for rebuttal of such presumption, it is not necessary as a rule that the accused shall enter into the witness box or should lead independent evidence.
There were certain aspects about the envelope exhibit PW1/20 put to the witness, in which he has admitted that the word 'refused' on the envelope is cancelled and there is some scribbling there. He does not know as to who has done the said scribbling. He also admitted that the envelope was in torn condition. It was suggested to him that he has refused the legal notice, which was denied. He stated that he is not aware if the respondent is in the business of developing plots. On consideration of the evidence, it is found that non-production of the Income Tax Returns, particularly in the wake of the fact that the appellant had admitted that the amount is reflected in the same, would be sufficient to raise an adverse inference - The presumption stood rebutted - answered in the negative.
Appeal dismissed - decided against appellant.
-
2015 (7) TMI 1372
Nature of land sold - capital asset u/s 2(14) or agricultural land - Addition on sale of land by treating the same as agricultural land - whether the distance of 8 kms. is to be taken from TMC [Thane Municipal Corporation] or NMMC [Navi Mumbai Municipal Corporation] - whether CIT (A) was justified in not appreciating the provisions of section 2(14)(iii)(b) of the Act correctly in as much as he held that the capital gain on the sale of land, even though situated within 5 Kms. of Navi Mumbai Municipal Corporation will not be taxable? - HELD THAT:- What is intended to be covered in the term "capital asset" is agricultural land comprised within the jurisdiction of a municipality and within the specified distance from the local limits of municipality or other local bodies mentioned therein a specified in the notification. As undisputed that the land in question is within the specified distance from the Panchkula municipality which falls in the State of Haryana while the land is in the State of Punjab. Thus, the land is urban land for the purpose of definition of "capital asset" under section 2(14).
The concept of municipality as a unit of State or the fact that a State has no jurisdiction to make law beyond its territory have no relevance for the purpose of determining whether a particular Land was "capital asset'" or not for the purpose of taxing capital gains. If the land is adjacent to a municipality and is urban land covered under section 2(14), even if municipality and the land fall in different States, the land will continue to be urban land. If such land is excluded from the definition of “ capital asset", the purpose of the statutory scheme will not be achieved.
We find that the judgments of Anjana Sehgal [2011 (3) TMI 695 - PUNJAB AND HARYANA HIGH COURT]and Khazan Singh [2014 (6) TMI 261 - PUNJAB & HARYANA HIGH COURT] were delivered on 01. 03. 2011 and on 20. 02.14 whereas the decisions of various benches of the Tribunal, relied upon by the AR, are of the year 2009, 2010 and 2012. Clearly, the Benches of the Tribunal did not have the benefit of the order of the Hon'ble High Court. Hon'ble Court has decided the issue against the assessee. Judicial decision and proprietary stipulate that in such matter the wisdom of higher forum should prevail. So following the decisions of the Hon'ble P& H High Court we are reversing the decisions of the FAA. - Decided in favour of revenue.
-
2015 (7) TMI 1371
Contempt proceedings - Appellants have deliberately and willfully violated the ex parte interim order - HELD THAT:- When admittedly the order dated 06.08.2013 was an ex parte one then in such circumstances, no sooner the Defendants (Appellants) entered appearance in the civil suit and filed their pleadings in reply to the Notice of Motion, the Court which is seized of the main case should have made sincere endeavour to dispose of the Notice of Motion on merits in the light of the mandate contained in Order XXXIX Rule 3A of the Code which in clear terms provides that the Court shall make an endeavor to finally dispose of the application within 30 days from the date on which the ex parte injunction was granted - It was not done by the Court may be due to myriad reasons despite the Appellants (Defendants) entering appearance as back as 21.08.2013 in the main suit and completing their pleadings on 05.09.2013. As a result, the ex parte ad-interim order dated 06.08.2013 remains in operation.
The Notice of Motion is finally decided on merits in accordance with law one way or the other then the parties to the Lis can always work out their rights by taking recourse to legal remedies available to them for pursuing their grievance to higher fora either in appeal or revision, as the case may be, and may also prosecute the contempt proceedings arising out of the main case, if need arises -
It is always in the larger interest of the parties to the Lis to get the main case (Lis) decided first on its merits as far as possible rather than to pursue their off-shoot proceedings on merits by keeping the main case undecided. It is more so when any decision rendered in the main case has a bearing over the pending off-shoot proceedings.
The Defendant in such case has a right to point out in the Notice of Motion, that the Plaintiff has neither any prima facie case in their favour nor there is any likelihood of Plaintiff to suffer any irreparable loss/injury in relation to subject matter of the suit, if injunction is declined to the Plaintiff and that no balance of convenience lies in the Plaintiff's favour and, therefore, the Court should not have granted ex parte injunction to the Plaintiff and even if it has granted then it should now be either recalled or modified, as the case may be - Appeal disposed off.
-
2015 (7) TMI 1370
Correct head of income - treating the interest on FDRs as income from other sources - assessee has taken up a project of NHAI for broadening of section of National Highway 22 but during the year under consideration the company has not commenced any commercial activity as the project was under construction - HELD THAT:- The issue is squarely covered against the assessee by the judgment of the Hon'ble Supreme Court in the case of Tuticorin Alkali Chemicals & Fertilizers Ltd. Vs. CIT [1997 (7) TMI 4 - SUPREME COURT] as well as by the order of the I.T.A.T. Chandigarh Bench in the case of M/s. HP Corporation Ltd. [2014 (6) TMI 1050 - ITAT CHANDIGARH] - We, therefore, do not find any error in the order of the learned CIT (Appeals) in holding that the interest income earned by the assessee company is taxable as "income from other sources". The appeal of the assessee has no merit and the same is accordingly, dismissed.
-
2015 (7) TMI 1369
Capital gain computation - Correctness of valuation report of D.V.O. - allowability of 25% of DM Circle Rate - for working out this value, the D.V.O. has considered and accepted two demerits i.e. availability of no parking space and having graveyard on one side of the property and has allowed rebate of 10% as against DM Circle rate - HELD THAT:- The difference between the value declared by the assessee at ₹ 49.397 lac and as determined by D.V.O. at ₹ 57.036 lac, the difference is only ₹ 8.639 lac which works out to 15.15%.
This is also to be noted that as per the judgment in the case of Bimla Singh [2008 (10) TMI 62 - PATNA HIGH COURT] as held that difference between cost of construction shown by the assessee and as determined by the Assessing Officer being less than 15%, same is to be ignored for the purpose of addition. Hence, if it is accepted that the rebate allowed by D.V.O. on account of demerits is less, such rebate should be 25% as against 10% allowed by the D.V.O., there will be no difference between the value declared by the assessee and value as per D.V.O. Since the rebate allowed by D.V.O. is estimated rebate without any basis indicated by D.V.O. in his report, we feel it proper that in the facts of the present case, such rebate should be 25% of DM Circle Rate and as a result, there is no difference between the value as per D.V.O. and value as per the assessee and as a result, no addition survives. - Decided in favour of assessee.
-
2015 (7) TMI 1368
Nature of receipt - Compensation received - difference of compensation received and the compensation and brokerage paid for alternate accommodation - Amount received from the Developers for agreeing to the redevelopment, for alleviating hardship of shifting/reshifting and agreeing to share the common area with more persons after redevelopment - Capital gain or Income from other sources - HELD THAT:- In “Paranugraha Co-op. Housing Society Ltd.” [2014 (2) TMI 688 - ITAT MUMBAI] it has been held that the TDR is embedded in the land for the purposes of addition made by the owner or lessee; that this TDR, in the form of additional FSI, is negotiable by the owner to the buyer/developer, only for prospective development; that there is no element of cost to the owner and no capital gain is exigible. The other decisions relied on by the assessee are to the same effect. They have been rendered by co-ordinate Benches of the Mumbai Tribunal.
There is merit in the contention of the assessee, that the hardship compensation received was due to the problem faced by the assessee on account of demolition of the building and this receipt is, therefore, not a taxable capital gain, there being not transfer of any capital asset involved and no cost of acquisition having been incurred.
Disallowance u/s 14A r.w.r. 8D - assessee has contended that the authorities below have wrongly applied Rule 8D of the Rules without pointing out any item of expenditure as having been incurred by the assessee to earn exempt income - HELD THAT:- The matter stands covered in favour of the assessee by the decision of the Hon’ble jurisdictional High Court in the case of “CIT vs. K. Reheja Corporation P. Limited”. [2011 (8) TMI 148 - BOMBAY HIGH COURT] as upheld the decision of the Tribunal, whereby the deletion of disallowance of interest made u/s 14A of the Act, in the absence of any material or basis to hold that the interest expenditure directly or indirectly was attributable for earning dividend income, was upheld.
In “CIT vs. Hero Cycles Ltd.” [2009 (11) TMI 33 - PUNJAB AND HARYANA HIGH COURT] as held, inter alia, that the contention of the Revenue that direct or indirect sum of expenditure is always incurred which must be disallowed u/s 14A and the impact of expenditure so incurred cannot be allowed to be set off against the business income which may nullify the mandate of section 14A, could not be accepted; and that disallowance u/s 14A requires a finding of incurrence of expenditure and where it is found that for earning exempted income, no expenditure has been incurred, disallowance u/s 14A cannot stand. - Decided in favour of assessee.
-
2015 (7) TMI 1367
Benefit of Interest free Sales Tax deferral (IFST deferral) - levy of differential tax for certain turnovers for the reason that the petitioner did not file Form-C/Form-H and other declarations - HELD THAT:- It is not in dispute that the respondent has passed the assessment orders for the years CST 2001-02, 2002-03 & 2003-04 and TNGST 2002-03 & 2003-04, levying differential tax for certain turnovers on the ground that the petitioner had not filed Form- C/Form-H and other declarations as required and these assessment orders levying differential tax were not questioned by the petitioner.
The petitioner contended that as per the scheme, the petitioner is eligible for IFST deferral of full tax, subject to the ceiling specified in Eligibility Certificate, not exceeding ₹ 1725.46 lakhs and Clause 12 of the Deferral agreement excludes only the tax and penalty levied or leviable by the assessing officer on taxable turnover suppressions from IFST deferral and since the petitioner has not made any suppressions no case of non-declaration of taxable turnover in returns was made out against the petitioner and therefore, they are entitled for IFST deferral on the entire tax assessed on the taxable turnover declared in returns. This technical ground raised by the petitioner, in my opinion, is illogical and untenable for the simple reason that even without collecting the actual taxes and declaring the same in monthly returns, the petitioner cannot avail IFST scheme. The intention of the petitioner behind not declaring in the monthly returns by filing Form C and H, etc., is that if the department fails to take note of the same, the petitioner can get the benefit of the IFST scheme in respect of transactions where the actual collection of taxes was in fact not taken place.
As regards the issuance of notice before resorting to impose penal interest under Section 24(3) of the Act as per the instructions of the Special Commissioner and Commissioner for Commercial Taxes dated 20.04.2001 which insist that penalty should be imposed only after providing sufficient opportunity to the assesses is concerned, this Court finds no considerable force in the said contention. Admittedly, the respondent sent arrear notice on 30.5.2013 and thereafter, by proceedings dated 29.8.2013, the respondent once again requested the petitioner to pay the tax while clarifying the eligibility of the petitioner to avail IFST scheme and only on 28.1.2014, the respondent has invoked Section 24(3) of the Act and levied penal interest since the petitioner failed to pay the tax. Thereafter, at the instance of the petitioner, 15 days time was given for filing objections and also granted personal hearing.
It is the specific contention of the petitioner that the liability to pay interest under Section 24(3) of the Act is automatic and absolute and no notice is necessary for levying interest. In fact, a bare perusal of Section 24(3) of the Act, this Court find that there is no provision contemplated that the levy of interest should be imposed only after issuance of notice.
This Court does not find any irregularity or illegality in the impugned proceedings issued by the respondent - Petition dismissed.
-
2015 (7) TMI 1366
Detention of vehicle - Jurisdiction - power to issue SCN - Challenge on the sole ground that the Checkpost Officer, by stepping into the shoes of the assessing officer, has straight away issued the notice on the basis that the petitioner has evaded the payment of tax under Section 67(3) (b) of the TNVAT Act, 2006, without there being any deduction thereon by following the due process of law - HELD THAT:- In the present case, a perusal of the impugned notice would show that he has detained the vehicle not for want of any of the documents. On the other hand, by stepping into the shoes of the assessing officer, he has reached a conclusion that the petitioner has evaded tax under Section 67 (3)(b) of TNVAT Act. This Court has time and again, by various rulings, held that the checkpost officer has no authority to pass any order detaining the goods on any flimsy reason. However, in the present case, the second respondent has passed the order almost assessing the tax payable by the petitioner without any valid reason. In my considered view, the same is not capable of being fortified by this Court.
As the second respondent has got power to detain the goods only for the limited purpose of ascertaining whether there has been sale or purchase of goods carried on and whether there has been any attempt to evade payment of tax due thereon, in the present case, on the face of the impugned order, he has not verified whether the vehicle carried the goods along with the requisite documents as per Section 68 of the TNVAT Act. As there is no reference whatsoever made and the goods have been transported along with all the requisite documents, the detention is unfounded - Petition allowed - decided in favor of petitioner.
-
2015 (7) TMI 1365
Revision u/s 263 - Disallowance of purchases - rejection of books of accounts - HELD THAT:- AO had made inquiries about the purchases made by the assessee in pursuance of the information received form the Sales tax department, that he had issued a detailed notice to the assessee in that regard, that he had also recorded the statement of the director of the company, that he made certain disallowance with regard to purchases.In these circumstances, we are of the opinion that it was not case of no inquiry.
AO had adopted a particular method to deal with the alleged purchases.If the CIT was of the opinion that the assessment should have been passed after making inquiries in different manner then it cannot held that the order of the AO was erroneous or prejudicial to the interest of Revenue.
It is possible that had the AO made the inquiries as desired by the CIT he would have collected higher revenue.But, that alone would not justify the invoking of the revisionary powers by the CIT.As the AO had applied his mind and passed the order after rejecting the book of accounts u/s. 145(3) of the Act, so, we are of the opinion that the order of the AO was not neither erroneous nor prejudicial to the interest of the Revenue. - Decided in favour of the assessee.
-
2015 (7) TMI 1364
Disallowance u/s 14A - HELD THAT:- Assessee has made fresh investments in 9 schemes of mutual funds during the year under consideration and it has closed investments made in six schemes, which were standing at the beginning of the year. The assessee has also received dividend income to the tune of ₹ 15.29 lakhs.
Assessee has indulged in quite number of transactions during the year and hence, we see no merit in the contentions of the assessee that it did not incur any expenses for earning the dividend income.
Considering the number of transactions, quantum of aggregate expenditure as well as fact that the assessee has received dividend income we are of the view that a reasonable disallowance should be made as required under the provisions of section 14A - we are of the view that the disallowance of ₹ 50,000/- made by the AO is on the higher side. We hold that a disallowance would be reasonable in the facts and circumstance of the case. Accordingly, we set aside the order of the ld. CIT(A) on this issue and direct the AO to restrict the disallowance to ₹ 25000/-, as referred above.
-
2015 (7) TMI 1363
Penalty u/s 271(1)(c) - disallowance on account of cost of Audio CDs to 20% of the expenses claimed - HELD THAT:- Ultimately part of the disallowance has been confirmed on estimate basis. It is almost settled now that penal action cannot be taken on the basis of estimated additions. A reference may be made to the decisions of the Hon’ble Punjab & Haryana High Court in the case of CIT Vs Ravail Singh and Co.[2002 (1) TMI 52 - PUNJAB AND HARYANA HIGH COURT] & CIT Vs Sangrur Vanaspati Mills Ltd. [2008 (2) TMI 285 - PUNJAB AND HARYANA HIGH COURT]. Therefore, in our considered opinion, this is not a fit case for levy of penalty because the part of the disallowance was confirmed on estimated basis.
For the sake of completeness, a perusal of the assessment order shows that the impugned addition has been made by the AO at para-9 of his order. Admittedly, no satisfaction has been recorded for the initiation of the penalty proceedings whereas in respect of every disallowance made. The AO has specifically mentioned that penalty proceedings u/s. 271(1)(c) are initiated separately. Since there is nothing to show that AO had recorded his satisfaction as required by the statute for initiation of penalty proceedings. Therefore, order levying penalty cannot be sustained.- Decided in favour of assessee.
-
2015 (7) TMI 1362
Disallowing proportionate deduction u/s 80IB - as per AO assessee has constructed some residential units which are more than 2000 sq.ft. and the maximum built up area permissible for residential unit as per sec. 80IB(10) is 1500 sq.ft. therefore AO disallowed the claim for deduction under sec. 80IB(10) - CIT-A directed AO to allow deduction u/s.80 IB(10) to the appellant on proportionate basis.HELD THAT:- We find that the CIT(Appeals) has followed the decision of the Hon’ble Madras High Court in the case of M/s. Vishwas Promoters Pvt. Ltd. [2012 (11) TMI 1117 - MADRAS HIGH COURT] while allowing proportionate deduction under sec. 80IB(10) to the assessee on the housing projects. The Departmental Representative has simply relied on the order of the Assessing Officer and could not cite any contrary decision which was in favour of the Revenue. The Authorized Representative of the assessee also could not cite any decision of the High Court/Supreme Court which was in favour of the assessee for allowing deduction on entire income under sec. 80IB(10) even in case where the units constructed were of more than 1500 sq.ft. Therefore, we find no good reason to interfere with the order of the Commissioner of Income Tax (Appeals) which is hereby confirmed and the ground of appeal of the assessee as well as that of the Revenue are dismissed.
-
2015 (7) TMI 1361
Block assessment u/s 158BD - whether the assessee has right to file an application under Rule 27 of the ITAT Rules? - HELD THAT:- As relying on SMT. GURINDER KAUR. [2006 (6) TMI 144 - ITAT DELHI-A] we admit this application under Rule 27 of the ITAT Rules as the assessee has raised a ground before the ld CIT(A) and the ld CIT(A) discussed the issue but had not given a decision on the same.
Whether notice barred by limitation ? - “immediate” or immediately proximate - HELD THAT:- On merits we find that the block assessment in the case of M/s Bemco Jewellers P Ltd was completed on 29.08.2002 u/s 158BD consequent to search conducted on 03.08.2000. Notice u/s 158BD was issued to the assessee on 10.02.2006. Thus the period of more than three years has elapsed since the completion of the assessment in the case of M/s. Bemco Jewellers Pvt. Ltd.
As relying on Calcutta Knitwears [2014 (4) TMI 33 - SUPREME COURT] we hold that the period of above three years cannot be considered as “immediate” or “immediately proximate” in point of time to the completion of the block assessment u/s 158BD. In consequently we hold that the assessment itself is bad in law. Thus this application under Rule 27 of the ITAT Rules is allowed. Appeal of the revenue is dismissed.
-
2015 (7) TMI 1360
Rejection of books of accounts - trading addition - application of gross profit rate of 21.44% as against declared gross profit rate of 19.97% - HELD THAT:- There is merit in the arguments of the AR that in semi precious stones and gems trade the number of stones are innumerable which are procured in various shapes, sizes and it is practically impossible to maintain shapewise, size-wise and colour-wise stock of manufacturing & wastage as required by the AO. Since no defect whatsoever is pointed out in the sales, purchases and trading results of the assessee consequently, in our considered view the books of account cannot be rejected.
Our view is fortified by the judgment in the case of Malani Ramjivan Jagan Nath vs. ACIT [2006 (10) TMI 145 - RAJASTHAN HIGH COURT]. We uphold the maintenance of books of account of the assessee and finding of ld. CIT(A) for rejecting them is reversed.
Quantum addition, since books of account of the assessee are upheld then nothing material remains to dwell on the estimate of income. It is trite law that if the books of account are proper then lesser earning of gross profit does not attract any addition besides the TO has gone up in this year. There is no justification in retaining addition, looking from other angle also, the issue is only about estimation of closing stock.
Assuming an addition on account of closing stock is somehow made, the same is to be allowed to the assessee in the next year as opening stock which will reduce the profits of next year. This exercise is essentially revenue neutral between two years. In the case of CIT vs. Excel India [2013 (10) TMI 324 - SUPREME COURT] has held that addition in such revenue neutral exercise should not be made by the Department. Thus on both the counts, there is no justification in retaining the addition which is deleted. - Decided in favour of assessee.
-
2015 (7) TMI 1359
Deduction u/s 80IA - as per revenue scope of work undertaken by the assessee was both rehabilitation and strengthening of the existing two lane highway apart from widening thereof to four lanes deduction u/s 80IA would not be available on the project income as per clarificatory circular of CBDT No. 4/2010 - HELD THAT:- In the light of clarificatory circular issued by CBDT and respectfully following the decision of ITAT Pune Bench in the case of Rohan & Rajdeep Infrastructure [2013 (4) TMI 758 - ITAT PUNE] and order of the ITAT Mumbai [2015 (6) TMI 1206 - ITAT MUMBAI] in assessee’s own case for subsequent assessment year 2008-09 we are inclined to hold that section 80IA of the Act mainly speaks about development of infrastructure facility and whether widening of roads would also fall under the ambit of development of infrastructure facility has been further clarified by the CBDT by circular no. 4/2010 which is obviously biding on the revenue authorities.
On logical analysis of the operative part of CIT(A) from para 4.1 to 4.3 of the impugned order. We note that the CIT(A) after properly considering circular no. 4/2010 of CBDT and relevant provision of section 80IA(4)(i) of the Act. Rightly drawn a conclusion that the project of development and widening road under taken by the assessee qualifies the definition of new infrastructure facility for the purpose of claiming deduction u/s 80IA(4)(i) and the CIT(A) was correct and quite justified in deleting the addition made by the AO in this regard. - Decided against revenue.
-
2015 (7) TMI 1358
Inability of Ms. Justice Reva Khetrapal, a former judge of this Court, appointed by this Court as an Administrator, has expressed her inability to continue with the matter - HELD THAT:- A copy of the order dated 14th January, 2015 along with the digital copy of the entire records of this matter be made available with Mr. Justice Anil Kumar (Retd.) by the Registry within four days from today.
List this matter for further consideration on 16th September, 2015.
-
2015 (7) TMI 1357
Enhanced compensation in view of an order under Section 18 of the Land Acquisition Act, 1881 - Assessee taking a contention before the CIT (Appeals) - HELD THAT:- The appeal is identical to [2014 (7) TMI 1326 - ITAT DELHI] which has been dismissed by our separate order and judgement of the even date wherein as held that admittedly the land in question was agricultural land. That has not been challenged. The compensation is, therefore, not liable to be taxed. Thus, on merits, there is no case. there is nothing that prevented the assessee from taking such a contention before the CIT (Appeals).
-
2015 (7) TMI 1356
Assessee taking a contention before the CIT (Appeals) - HELD THAT:- Assessee received enhanced compensation in view of an order under Section 18 of the Land Acquisition Act, 1881. However, admittedly the land in question was agricultural land. That has not been challenged. The compensation is, therefore, not liable to be taxed. Thus, on merits, there is no case.
Only issue is whether such a contention could have been taken for the first time before the CIT (Appeals). It does not appear from the order that this technical ground was pressed before the Tribunal, though it has been raised in the memo of appeal. There has been no application by the appellant for modification of the order before the Tribunal either. Prima-facie, at least there is nothing that prevented the assessee from taking such a contention before the CIT (Appeals).
-
2015 (7) TMI 1355
Remuneration and perquisites payable to the original Petitioner before the CLB - HELD THAT:- Appellant submits that his clients would like to seek certain clarifications of the earlier orders passed by the CLB in this behalf, which has a bearing on the subject matter of the present appeals.
The appeals are adjourned to 24 August 2015.
-
2015 (7) TMI 1354
Compensation for acquisition of land - Whether the allottee Company (M/s. Ultra Tech Cement Ltd.) is either a beneficiary or interested person entitled for hearing before determination of the market value to award just and reasonable compensation in respect of the acquired land of the Appellants either before the Deputy Commissioner or Reference Court? - Whether the Writ Petition filed by the allottee Company before the High Court is maintainable in law? - Whether the order of remand allowing the Writ Petition of the allottee Company to the Reference Court is legal and valid? - HELD THAT:- The provisions of the KIAD Act and KIADB Regulations make it abundantly clear that the acquisition of the agricultural land in the notified Industrial Area vide notifications issued Under Section 28(1) and (4) of the KIAD Act, empowers the State Government to acquire the land for the purpose of industrial development by the KIADB after the acquired land possession is transferred in its favour by the State Government - Sections 29 and 30 of the KIAD Act read with Sections 11, 18 and 30 of the L.A. Act would clearly mandate that both the state government and the KIADB are liable, jointly or severally, to pay the compensation to the owners or interested persons of the acquired land. The market value of the acquired land is required to be determined by the Reference Court by applying the provisions of Section 18 of the L.A. Act, after passing an award as provided Under Section 11 and notifying the same to the landowners or interested persons Under Section 12(2) of the L.A. Act if the owners are not satisfied with either the compensation awarded by the Deputy Commissioner or with regard to the area of acquisition of land.
The land acquired shall be disposed off by the KIADB by inviting applications from the eligible applicants, notifying the availability of land, prescribing the manner of such disposal and fixing the last date for submitting applications and giving such particulars as it may consider absolutely necessary by publishing it in the newspapers having wide circulation in and outside the state of Karnataka - From a careful reading of the clauses of the lease agreement along with the provision Section 32(2) of the KIAD Act and Regulation Nos. 4, 7, 10(b), (c) and (d) of the KIADB Regulations, it is clear that the Company is only the lessee by way of allotment of the land as the same has been allotted by the KIADB in its favour and has executed the lease deed in its favour in respect of the allotted land.
Thus, it can be safely concluded by us that the acquisition of the land involved in these proceedings is for the purpose of industrial development by the KIADB in the Sedam Taluk. Therefore, the beneficiary of the acquired land is only the KIADB but not the Company as claimed by it. A reading of Section 28(5) of the KIAD Act makes it clear that the land which is acquired by the State Government statutorily vests absolutely with it - A careful reading of the provisions of the L.A. Act, KIAD Act and the KIADB Regulations would clearly go to show that the Company is neither a beneficiary, nor an interested person in the land as on the date of acquisition of the land, as the land was acquired by the state government in favour of KIADB who is the beneficiary and it has allotted in favour of the Company after the acquired land was transferred in its favour by the State Government and executed the lease agreement.
The acquisition of land under the provisions of the L.A. Act in favour of a Company the mandatory procedure as provided under part VII of the L.A. Act and Rules must be adhered to, that is not the case in the acquisition of land involved in these proceedings as the acquisition of land is under the provisions of KIAD Act and therefore the reliance placed upon the provision of Section 3(f)(viii) of the Karnataka L.A. Amended Act of 17/1961 is not applicable to the facts of the case on hand and therefore, the said provision cannot be made applicable to the case on hand.
Enhancement of Compensation - HELD THAT:- The statutory notifications of acquisition of land would clearly go to show that the land of the Appellants was acquired way back in the year 1981 for the purpose of establishment of industries The land of the Appellants has non-agricultural potentiality, which fact is proved from the notifications published by the State Government Under Sections 28(1) and (4) of the KIAD Act, as the State Government specifically mentioned therein that the acquisition of the land of the Appellants is for the industrial development and establishment of industries which is for non agricultural and commercial purpose - Further, the land which has been covered under notification in 1988 is also adjacent to the residential sites which were formed. The land owners in that case produced the sale deeds of the year 1986 and 1988 respectively, which was 2 years and 2 months earlier respectively to the notification issued in the year 1988 and some of which were two to three years earlier.
Considering the fact that acquisition of the land was made in the year 1981, it would be just and proper to fix the compensation calculated at ₹ 1,92,000/- per acre, with all statutory benefits such as solatium at 30% as provided Under Section 23(2) and statutorily payable interest Under Sections 23(1-A) and 28 of the L.A. Act, from the date of taking possession of the land till the date of payment. The Appellants are also entitled to costs throughout as provided Under Section 27 of the L.A. Act - The Respondents are directed to pay the compensation to the Appellants-landowners as directed above, within eight weeks from the date of the receipt of the copy of this judgment and award after proper computation in the above terms.
Appeal disposed off.
........
|
