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Showing 21 to 40 of 1478 Records
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2016 (6) TMI 1461
Seeking withdrawal of appeal - MODVAT Credit - capital goods - part of electricity manufactured using such capital goods is not used in the factory but sold outside - second proviso to Rule 57 R (2) of Central Excise Rules, 1944 ignored - HELD THAT:- While dismissing the Civil Miscellaneous Appeal No.2671 of 2007, as withdrawn, substantial question of law raised is left open.
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2016 (6) TMI 1460
Disallowance u/s 14A read with Rule 8D and 36 - assessee argued AO did not consider that the interest paid was in respect of specific loans taken as such as car loans and export packing credit loans, which were not considered for calculating proportionate interest - HELD THAT:- As decided in assessee own case [2013 (9) TMI 1297 - ITAT MUMBAI] we find merit in the prayer of the Ld Counsel to remit the matter to the files of the AO for examination of the issue afresh. Therefore, we remand the matter to the files of the AO to re-adjudicate the issue in accordance with the jurisdictional High Court judgment in the case of Godrej & Boyce [2010 (8) TMI 77 - BOMBAY HIGH COUR] after granting a reasonable opportunity of being heard to the assessee. It is the settled law that the AO is under obligation to reject the claim of the assessee by giving speaking order on this issue before he resort to thrust on the assessee the provisions of rule 8D r w section 14A of the Act. Accordingly, issue no.1 is remanded and relevant conclusions of the revenue authorities are set aside.
Disallowance u/s 36(1)(iii) of the Act in respect of the interest claim of the assessee - It is a fact that neither the AO nor the CIT (A) have really gone into the issue of existence of excess funds and have given categorical findings about this fact. Therefore, in our considered opinion, this issue should also be set aside to the files of the AO for fresh adjudication considering the judgment of the Supreme Court in the case of Reliance Petro-products [2010 (3) TMI 80 - SUPREME COURT] as well as the relevant law in force.
In the light of the foregoing discussion, we direct the ld. Assessing Officer to examine the case of the assessee and decide afresh in the light of the directions contained in the aforesaid order of the Tribunal - Appeals of the assessee are allowed for statistical purposes.
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2016 (6) TMI 1459
Validity of reopening of assessment u/s 147 - Reasons to believe or purposes of verification - As in Original return of income, the assessee has shown income of Rs. Nil after claiming deduction under chapter VI-A of business income and in revised return loss without claiming any deduction under chapter VI-A claimed - HELD THAT:- AO failed to make out any case for escapement of income. He sought to reopen the assessment merely for re-verification of certain documents, which is not contemplated in the Act.
No merit in the present appeal, because, the ld.CIT(A) has placed reliance upon the decision of tINDUCTOTHERM (INDIA) PVT. LTD. [2012 (9) TMI 16 - GUJARAT HIGH COURT] holding that notice under section 148 was not issued by the AO after lying his hand on any information which enable him to form a belief that the income has escaped assessment. The ld.AO merely sought to reopen the assessment for verification of the details, which is not contemplated under section 147 of the Act - Appeal of the Revenue is dismissed.
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2016 (6) TMI 1458
TDS u/s 194A - payment of interest on compensation of agricultural land - enhanced / additionalf compensation paid and recorded as interest in the “Award of Compensation” of the Punjab Government - assessee submitted that amount on which TDS has been proposed to be deducted is not interest but enhanced compensation as per Standing order No. 28 of Punjab Government under which land has been acquired, which has been paid to land owner @ 12% from the date of initial notification - Also submitted that as per record, no interest has been paid on account of delayed payment i.e. from date of award till date of payment - CIT-A held amount was additional compensation paid as per section 23(IA) of the Land Acquisition Act of 1894 and not liable to deduction of tax - HELD THAT:- We find that as per Provisions of clause (b) of section 145A of the Income Tax Act, 1961 interest received by an assessee on compensation or on enhanced compensation as the case may be, shall be deemed to be the income of the year in which it is received.
As per provisions of section 56 (viii) of the Income Tax Act, 1961, income by way of interest received on compensation or enhanced compensation referred to in clause (b) of section 145A shall be chargeable to income-tax under the head 'Income from other sources.'
TDS is deducted U/s 194A on the payment of interest other than "Interest on securities". Also, as per provisions of Section 194LA, TDS is deducted on payment of compensation on acquisition of certain immovable property other than agricultural land - competent authority in this regard has clearly clarified that word ‘interest’ has been wrongly used. It is in fact an enhanced compensation.
This statement of the competent authority is unambiguous and it has also been accepted by the Assessing officer in the remand report. It is undisputed that the payment in this regard does not relate to any award by the Court regarding payment of interest. The payment has been made as per section 23 (1A) of the Land Acquisition Act, 1894 which was erroneously mentioned as interest in the award of competent authority. The clarification in regard has been issued by the Special Secretary Revenue, Government of Punjab. Letter was also issued to the Chief Commissioner of Income Tax, Chandigarh clarifying the position.
We agree with the CIT(A) that impugned amount was additional compensation paid as per section 23(IA) of the Land Acquisition Act of 1894 and not liable to deduction of tax u/s 194A - It is settled law that it is the substance of the transaction which has to be taken into account in assessment proceedings and not the nomenclature to the same. The Revenue in grounds of appeal has referred to the decision of Manjit Singh (HUF) Vs. UOI and others [2015 (12) TMI 1123 - PUNJAB & HARYANA HIGH COURT] - DR was not at all in a position to explain us to how this decision helps the case of Revenue. Accordingly, we do not find any merit in the grounds raised by the Revenue. Accordingly, we uphold the order of Ld. CIT(A). Appeal filed by the Revenue stands dismissed.
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2016 (6) TMI 1457
Exemption u/s 11 - claim of depreciation - double deduction - assessee is a charitable trust with the object of promoting and developing sports, health and fitness awareness and also to impart coaching and training in various sports activities along with conducting sports competition, arranging tournaments, etc - HELD THAT:- As relying on case of Institute of Banking Personal [2003 (7) TMI 52 - BOMBAY HIGH COURT] income derived from the trust property also has to be computed on commercial principle and if “commercial principles” are applied then adjustment of expenses incurred by the trust for charitable and religious purposes in earlier years against the income earned by the trust in subsequent years will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year in which adjustment has been made having regard to the benevolent provisions, contained in section 11 and that such adjustment will have to be excluded from the income of the trust u/s 11(1)(a) therefore, respectfully following the decision from Hon’ble jurisdictional High Court, we find no infirmity in the conclusion drawn by the Ld. Commissioner of Income Tax (Appeal). We affirm the same. - Decided against revenue.
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2016 (6) TMI 1456
Assessment passed upon a ‘non-existing’ person - HELD THAT:- As framing of the assessment order upon a non-existing person was a jurisdictional defect and not merely a curable procedural defect, and thus nullity in the eyes of law. See SPICE ENFOTAINMENT LTD. [2011 (8) TMI 544 - DELHI HIGH COURT]
In view of all these facts as have brought before us and the judgments brought before us and in the absence of any contrary judgment having been brought before us, we find that impugned assessment order is nullity in the eyes of law and the same is herby quashed, and thus additional grounds raised by the assessee are allowed.
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2016 (6) TMI 1455
Rectification of mistake - deduction on account of additional contribution - applicability of limitations placed under Rule 87 to the payment of additional contribution - HELD THAT:- As rightly pointed out by the assessee in the present Miscellaneous Application, the direction given by the Tribunal of its order to the Assessing Officer to verify as to whether the amount in question paid by the assessee to Donation Fund is within the limits specified in the relevant Rules is not in consonance with the conclusion drawn by the Tribunal that the issue under consideration is squarely covered in favour of the assessee by the decision in Glaxo Smithkline Pharmaceuticals [2011 (1) TMI 1530 - ITAT MUMBAI] wherein it was held that the limitations placed under Rule 87 are not applicable to the payment of additional contribution necessitated due to shortfall discovered in the course of actual valuation of the fund as the same is in the nature of one time exceptional payment to ensure that the superannuation fund is able to discharge its obligation.
There is thus a mistake in the order of the Tribunal in giving such direction to the Assessing Officer while deciding this issue vide paragraph no 44 and the same being apparent from record, we rectify the same by deleting last eight lines of the said para and substituting the same with the following:-
“We are unable to accept this contention of the ld. D.R. In our opinion, the issue involved in Ground No. 8 of the assessee’s appeal is squarely covered in favour of the assessee by the decision of the Coordinate Bench of this Tribunal in the case of Glaxo Smithkline Pharmaceuticals (supra) and respectfully following the same, we delete the addition made by the Assessing Officer and confirmed by the ld. CIT(Appeals) on this issue. Ground No 8 of the assessee’s appeal for A.Y. 200405 is accordingly allowed”.
Miscellaneous Application of the assessee is allowed.
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2016 (6) TMI 1454
Principles of natural justice - service of writ of summons - whether the applicant has set out "special circumstances" to set aside the ex-parte decree? - HELD THAT:- The Apex court in Rajnikumar Vs. Suresh Kumar Malhotra [2003 (3) TMI 774 - SUPREME COURT] has held that non-service of summons will undoubtedly be a special circumstance. It is satisfying that the summons has not been served upon the defendants and therefore, it will be a special circumstance under Order 37 Rule 4 to recall the ex-parte decree passed. Substituted service may be good service in law but the fact that leave to serve by substituted service was granted without valid reason will go to the root of the matter. In my view leave was granted without valid reasons. Substituted service can be permitted only when there are reasons to believe that the defendant is keeping out of the way to avoid service or if summons cannot be served. There was nothing in the present case to believe the defendants were keeping out of the way to avoid service.
The defendant has shown some material for the Court to consider at the hearing of the summons for Judgment as to whether the defendant should be granted leave to defend the suit or not. It is not that the defendant has been totally silent.
The ex-parte decree passed on 1.4.2013 is recalled - the question of executing ex-parte decree will not arise and therefore, Thane court is directed to return the process.
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2016 (6) TMI 1453
Condonation of delay of 108 days in filing an appeal challenging the judgment - notice addressed to the petitioner no. 2 was returned unclaimed - HELD THAT:- It is now well settled that normally in the matter of condonation of delay, the Courts adopt a liberal approach. This is more so when the delay is of a short duration. It is well settled that no party stands to gain by approaching the Court late and there is no presumption that the delay in approaching the Court is intentional or deliberate.
In the present case, it is found from the roznama of the proceedings that the last date in the proceedings was on 21.09.2013 and thereafter, no date was fixed for pronouncement of the judgment. The record further shows that the notice as required under Section 82(2) of the Act alongwith the copy of the award was served on the petitioners only on 03.03.2014 and the appeal came to be filed within a month thereof i.e. on 02.04.2014.
The impugned order dated 18.12.2015 is hereby set aside - petition allowed.
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2016 (6) TMI 1452
Service of Arbitral Award - existence of dispute between the parties or not - applicability of period of limitation prescribed under Section 34(3) of the Arbitration Act.
Whether unclaimed service of the signed copy of the arbitral award sent by the learned arbitrator to a party under Section 31(5) of the Arbitration Act inspite of intimation posted by the postman would amount to a good service and refusal to accept the arbitral award? - whether limitation for filing a petition would commence under Section 34(3) of the Arbitration Act from the date of such refusal of service of the arbitral award?
HELD THAT:- If the submission of the learned counsel for the petitioner that till service of signed copy of the arbitral award from the learned arbitrator is actually received by the petitioner though it was not claimed by the petitioner inspite of intimation posted by the postman, it will not amount to delivery of the award under Section 31(5) of the Arbitration Act is accepted, dishonest litigant who deliberately does not claim copy of the signed award sent by the learned arbitrator inspite of the postman having posted the intimation, the limitation would never commence for filing a petition under Section 34(3) of the Arbitration Act and the beneficiary of the award would never be able to apply for execution of such award.
An unclaimed service amounts to a good service and amounts to refusal to accept the delivery of the arbitral award which was sent by the learned arbitrator at the correct address and the intimation was posted by the postman to the petitioner. The limitation for filing of the arbitration petition under Section 34(3) of the Arbitration Act would commence from the date on which the intimation was posted by the postman and the same was not collected by the petitioner from the post office. Admittedly, the intimation was posted in this case by the postman on 21st July 2014 and 22nd July 2014 whereas the the petitioner has lodged the arbitration petition only on 22nd June 2015. The petition thus having been filed after expiry of three months from the date of deemed delivery of such award, the petition in my view is barred by law of limitation prescribed under Section 34(3) of the Arbitration Act.
Arbitration Petition is dismissed on the ground of limitation.
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2016 (6) TMI 1451
LTCG - Scope and legislative intent of Section 2(47)(ii), (v) and (vi) - JDA entered - essential ingredients for applicability of Section 53A of 1882 Act - Meaning to be assigned to the term “possession” - whether no possession had been given by the transferor to the transferee of the entire land in part performance of JDA ? - HELD THAT:- As decided in the case of “Charanjit Singh Atwal [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT] that since no possession had been given by the transferor to the transferee of the entire land in part performance of JDA dated 25.02.2007 so as to fall within the domain of section 53A of the Transfer Act and consequently, section 2(47)(v) of the I.T. Act, did not apply, that further, willingness to perform their part of the contract was absent on the part of the developers, or it could not be performed by them, which was one of the conditions precedent for applying section 53A of the transfer Act; that in clause 26 of the JDA dated 25.02.2007, the principle of force majeure had been provided for, which would be applicable with full vigour in the circumstances; that from the cumulative effect of the covenants contained in the JDA read with the registered special power of attorney dated 26.02.2007, it could not be held that the mandatory requirements of section 53A of the Transfer Act were complied with, which stood incorporated in section 2(47)(v) of the Act; that once that was so, it could not be said that the assessee were liable to capital gain tax in respect of the remaining land which was not transferred by them to the developer/builder because of supervising event and not on account of any volition on their part; and that viewed from another angle, it could not be said that any income chargeable to capital gains tax in respect of the remaining land had accrued or arisen to the assessee in the facts of the case. - Decided in favour of assessee.
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2016 (6) TMI 1450
Revision u/s 263 - AO find no fault in the payment of hire machinery charges as no specific addition has been made on this account and the AO only applied net profit rate to determine net income of the assessee - HELD THAT:- As in order to exercise power under section 263(1) there must be material before the Commissioner to consider that the order passed by the ITO was erroneous in so far as it is prejudicial to the interests of the revenue and that it must be an order which is not in accordance with the law or which has been passed by the ITO without making any enquiry in undue haste. An order can be said to be prejudicial to the interests of the revenue if it is not in accordance with the law in consequence whereof the lawful revenue due to the State has not been realized or cannot be realized. There must be material available on the record called for by the Commissioner to satisfy him prima facie that the aforesaid two requisites are present. If not, he has no authority to initiate proceedings for revision. Exercise of power of suo motu revision under such circumstances will amount to arbitrary exercise power.
It is well settled that when exercise of statutory power is dependent upon the exercise of certain objective facts, the authority before exercising such power must have materials on record to satisfy it in that regard. If the action of the authority is challenged before the Court, it would be open to the Courts to examine whether the relevant objectives were available will amount to arbitrary exercise of power.
ITO in his case had made enquiries in regard to the nature of the expenditure incurred by the assessee. The assessee had given a detailed explanation in that regard by a letter in writing. All these were part of the record of the case. Evidently, the claim was allowed by the ITO on being satisfied with the explanation of the assessee.
This decision of the ITO could not be held to be ‘erroneous’ simply because in his order he did not make an elaborate discussion in that regard. Moreover, in the instant case, the Commissioner himself, even after initiating proceedings for revision and hearing the assessee, could not say that the allowance of the claim of the assessee was erroneous and that the expenditure was not revenue expenditure but an expenditure of capital nature. He simply asked the ITO to re-examine the matter. That was not permissible. Hence, the provisions of section 263 were not applicable to the instant case and, therefore, the Commissioner was not justified in setting aside the assessment order.
In view of the above facts and circumstances of the case and in view of the above judicial precedents, we allow the appeals filed by the assessee and set aside the order of the ld. CIT and restore the order passed by the A.O. - Decided against revenue.
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2016 (6) TMI 1449
Estimation of net profit of total purchases - rejection of books of accounts - AO. estimated net profit of 20% on stock put for sale as of the opinion that the assessee has not maintained proper books of accounts and vouchers in support of purchases and sales - A.O. further observed that the assessee has failed to maintain stock registers and books of accounts maintained by the assessee are not susceptible for verification, therefore rejected the books of accounts and estimated net profit of 20% - HELD THAT:- We are of the view that the net profit estimated by the A.O. by relying upon the decision of Hon’ble A.P. High Court (2011 (7) TMI 1274 - ANDHRA PRADESH HIGH COURT] which was rendered under different facts is quite high. On the other hand, the assessee relied upon the decision of coordinate bench and the coordinate bench under similar circumstances estimated the net profit of 5% on total purchases net of all deductions. No contrary decision is placed on record by the revenue to take any other view of the matter than the view so taken by the coordinate bench. Therefore, we direct the A.O. to estimate the net profit of 5% on total purchases net of all deductions. Ordered accordingly.
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2016 (6) TMI 1448
Dishonor of Cheque - drawer of cheque - liability of a person who draws a cheque on an account maintained by him, for paying payee - Section 138 of NI Act - HELD THAT:- In the present case, it is admitted fact that the drawer of the cheque was the respondent No. 2, who had drawn the cheque bearing number "224385" for ₹ 4 Lakhs in the bank account maintained by him in HDFC Bank, Bharat Talkies, Hamidia Road Branch, Bhopal, towards the consideration of the sale. Therefore, the respondent No. 2 was the drawer of the cheque.
The scope of section 138 of the Negotiable Instruments Act can be held that, it is very clear that in order to attract the provision, the following essentials have to met for attracting a liability under section 138 of the Act. The person who is to be made liable should be the drawer of the cheque and should have drawn the cheque on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge in whole or part, of any debt or other liability.
This Court is of the view that the respondent No. 2 has signed and issued the cheque is only liable under section 138 of the Act, even though the sale deed was executed in favour of the petitioner - Petition allowed.
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2016 (6) TMI 1447
Cheating - breach of trust - siphoning off of funds - non application of mind by learned Magistrate - it is claimed that the magistrate has ignored discrepancy between the complaint and verification - HELD THAT:- It is a matter of record that allegations against present Petitioner made in the complaint do not find place in the verification statement. Moreover, it is the contention of the complainant that accused No. 1 had siphoned of the deposit in favour of the Petitioner, without her permission. It is not the case of the complainant that she had verified from the Petitioner that the said amount was entrusted in his favour. No overt act is attributed to the present Petitioner. It is a matter of record that in the complaint also, complainant has not even whispered that in the course of entire transaction, she had no communication with the present Petitioner or that she had entrusted the amount of Rs. 4 Lakhs to him or had verified the contention of the accused No. 1. The sanctity of recording the verification statement is that the contents of the complaint are reproduced on oath and the complainant stands by the contents of the complaint. It is clear that there is no whisper against present Petitioner in the verification statement. It is clear that learned Magistrate has failed to appreciate the discrepancy in the complaint and verification statement.
The fact that there was material discrepancy in the complaint and the verification, learned Magistrate ought not to have issued process against present Petitioner. Issuance of process and continuance of criminal proceedings against present Petitioner, in view of the above mentioned fact would be abuse of process of Law.
It is more than clear that none of the ingredients contemplated under section 405 of Indian Penal Code could be applicable to the present petitioner as there is no element of entrustment in favour of present Petitioner.
The genuineness and truthfulness of contents of the complaint have to be substantiated in the examination on oath. It is in these premises that the petition deserves to be allowed.
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2016 (6) TMI 1446
Right to vote - Seeking permission to petitioner to participate in Rajaya Sabha Election and cast his vote - HELD THAT:- A perusal of tpreamble to the Representation of the People Act 1950 and Preamble to the Representation of the People Act 1951 will go to show that provisions have been made in general terms and where the legislature intended to make specific provisions in respect of any of the Houses of the Parliament or the State Legislatures or in respect of any of the matters dealt with in these Acts, such provisions have been made expressly. Section 59 of the Act of the 1951 affords a good example of it. Main Section delegates power to provide for the manner of ballot where as the proviso makes a special provision in respect of the election of the Council of States and says that votes at an election to fill seats in the Council of States shall be given particularly by open ballots. Thus, interpreting the provisions of these two Acts, we have to keep in mind whether the provision is cast in general terms or in specific terms. If the provision is in general terms, it should be construed as regulating the whole subject, which it seeks to deal with.
Section 62 of the Act 1951, deals with the Right to Vote. It refers to constituency and not any particular election. Therefor, the provision should be taken to be general and regulating 'Right to Vote' at all elections whether they are to the House of People or for the Council of States or a Legislative Assembly or a Legislative Council. As such the provisions of Sub Section (5) of Section 62 of the Act 1951 are equally applicable to an eligible voter who wishes to cast vote at an election to the Council of State. Therefore, a person who is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or is in lawful custody of the police cannot be allowed to vote at an election to the Council of States - Applying Section 62(5) of the Representation of People Act to the factual matrix of the present case, it is clear that the petitioner cannot be allowed to cast his vote at the election to the Rajya Sabha since, he is in prison and in the lawful custody of the police.
Right of a member to participate in the proceedings of the legislative assembly is a matter relating to proceeding of the house and it is not regulated by the law relating to the elections.
Additionally, Chief Election Commission of India and Secretary Rajasthan State Assembly are necessary parties in the present petition and they are not made party by the petitioner. On this count also, the present petition deserves to be dismissed.
Petition dismissed.
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2016 (6) TMI 1445
Assessment u/s 153C OR 148 - Whether reasons recorded by the AO do not make mention of any search or of any appraisal report and that the assessment, as made by the AO under the provisions of section 148, is fully justified, not calling for any interference? - HELD THAT:- As decided in ARUN KUMAR KAPOOR [2012 (6) TMI 403 - ITAT AMRITSAR] only the provision in which any assessment could be made against the assessee in the Income Tax Act was section 153C r.w.s. 153; that it was also apparent from the record that that the Officer at Delhi had mentioned in his letter that necessary action may be taken as per law under sections 153C/148; that the provisions of section 153C were clearly applicable when section 153 supersedes the applicability of sections 147 & 148 of the Act; that therefore, the notice u/s 148 and the proceedings u/s 147 were illegal and void ab initio, since in view of the provisions of section 153C, sections 147/148 stand ousted; and that since the procedure provided u/s 153C had not been followed by the AO, the assessment had become invalid and the ld. CIT(A) was fully justified in quashing the reassessment order.
As it is evidence from the Appraisal Report in the case of Sh. Neeraj Puri, as noted hereinabove, that the sale deed of the assessee was found only during the search in the case of Sh. Neeraj Puri. That being so, the provisions of section 153C of the Act are directly applicable. To reiterate, the Hon’ble Supreme Court, in the case of ‘Manish Maheshwari’ [2007 (2) TMI 148 - SUPREME COURT] has laid down that if the procedure in section 158BD is not followed, block assessment proceedings would be illegal. It is irrefutable that the provisions of section 153C of the Act are in pari materia with those of section 158BD. Therefore, as taken note of, if the procedure laid down in section 153C is not followed and recourse is not taken to section 158BD, the same would be bad in law. ‘Arun Kumar Kapoor’ [2012 (6) TMI 403 - ITAT AMRITSAR] is also to the same effect. In accordance therewith, we hold that the proceedings u/s 148 of the Act, as rightly contended on behalf of the assessee, are not sustainable, in view of the presence of section 153C, which obliterate to the operation of the provisions of sections 147/148 of the Act, in given circumstances, which exist in the case of the present assessee also.
Thus finding the grievance of the assessee to be justified, the same is accepted. The assessment framed u/s 148 of the Act is quashed.
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2016 (6) TMI 1444
Reference of matter for arbitration in exercise of powers under Section 8 of the Act, 1996 - Section 8 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- It is not in dispute that the parties are not governed by the provisions of Micro, Small and Medium Enterprises Development Act, 2006. In that view of the matter, if there is any dispute between the parties, the dispute is required to be resolved by following procedure as required under Section 18 of the Act, 2006. Earlier when the respondent approached Council, without following any procedure as required under Section 18(2) of the Act, 2006, the Council declared the award and at that time also the application submitted by the appellant, submitted under Section 8 of the Arbitration Act, 1996 was pending.
Application for setting aside decree, award or order: No application for setting aside any decree, award or other order made either by the Council itself or by any institution or centre providing alternate dispute resolution services to which a reference is made by the Council, shall be entertained by any court unless the appellant (not being a supplier) has deposited with it seventy five per cent of the amount in terms of the decree, award or, as the case may be, the other order in the manner directed by such court: Provided that pending disposal of the application to set aside the decree, award or order, the court shall order that such percentage of the amount deposited shall be paid to the supplier, as it considers reasonable under the circumstances of the case subject to such conditions as it deems necessary to impose - Establishment of Micro and Small Enterprises Facilitation Council:The State Government shall, by notification, establish one or more Micro and Small Enterprises Facilitation Councils, at such places, exercising such jurisdiction and for such areas, as may be specified in he notification.
It cannot be disputed that the Act 2006 is a Special Act and as per Section 24 of the Act, 2006, the provisions of sections 15 to 23 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore, Section 18 of the Act, 2006 would have overriding effect or any other law for the time being in force including Arbitration Act, 1996 and therefore, if there is any dispute between the parties governed by the Act, 2006, the said dispute is required to be resolved only through the procedure as provided under Section 18 of the Act, 2006. Thus, considering Section 18 of the Act, 2006, after conciliation has failed as per Section 18(2) of the Act, 2006, thereafter as per subsection (3) of Section 18, where the conciliation initiated under subsection (2) is not successful and stands terminated without any settlement between the parties, the Council shall either itself take up the dispute for arbitration or refer to it any institution or centre providing alternate dispute resolution services for such arbitration and the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall then apply to the dispute as if the arbitration was in pursuance of an arbitration agreement referred to in subsection (1) of section 7 of that Act - In the present case, therefore, after unsuccessful conciliation which was conducted as per subsection (2) of Section 18 the Council shall have jurisdiction to take up dispute for arbitration. Therefore, once the Council itself is acting as an Arbitrator in that case, thereafter the Council who acts as an Arbitrator has no authority and / or jurisdiction to entertain the application under Section 8 of the Arbitration Act, 1996.
The Division Bench of the Allahabad High Court in the case of Paper and Board Convertors [2014 (4) TMI 1286 - ALLAHABAD HIGH COURT] has set aside the order passed by the Facilitation Council directing the parties to place it version before the sole arbitrator in terms of the rate contract agreement and restored the proceedings back to the Council and directed the Council to act in accordance with the provisions of subsection (3) of Section 18 and either conduct the arbitration itself or refer the arbitral proceedings to any institution or centre providing alternate dispute resolution services.
No error has been committed by the learned Council in not entertaining the application under Section 8 of the Arbitration Act, 1996. There are no reason to interfere with the order passed by the learned Council. Considering the subsection (1) of Section 18 of the Act, 2006 the Facilitation Council has jurisdiction to act as Arbitrator and / or conciliator any dispute between the parties and that Council had only one of two courses of action open to it, either to conduct an arbitration itself or to refer the parties to a centre or institution providing alternate dispute resolution services stipulated in Section 18(3) of the Act, 2006.
The present appeal is dismissed.
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2016 (6) TMI 1443
Disallowance for provision of bad and doubtful debts on standard assets - CIT-A allowed deduction holding that the claim of the assessee fall into the main provisions of section 36(1)(viia) - as per DR CIT(A) has wrongly allowed relief to the assessee as the provisions for bad and doubtful debts was on standard assets and as per the proviso to section 36(1)(viia) only the provisions for bad and doubtful debts was allowable - AO was of the opinion that the provisions made by the assessee against standard assets was a contingent liability and which was not allowable as business expenditure - HELD THAT:- Deduction u/s 36(1)(viia) of the Act is allowed in respect of provisions for bad and doubtful debts This section does not differentiate between provision on bad assets and provision on standard assets. This deduction exclusively allows deduction in respect of provision for bad and doubtful debts to the extent mentioned in the various clauses of sub-section(1) of section 36 of the Act. The deduction under section 36(1)(viia) of the Act is allowed only in respect of certain specific categories of assessee mentioned in the clause like banks, financial institutions, etc. who are in business of lending money. It is not allowed even to non-banking financial institutions since they are not included in this clause.
As seen that though section 36(1)(vii) states that deduction for provision is allowable in respect of provision for bad and doubtful debts, the computation of such deduction is made with reference to total income of the specified Banks based upon quantum of average advances. The deduction of the provisions is neither limited to the quantum of bad debts in the books nor is computed with reference to the quantum of standard assets. The deduction in this clause refers to allowable provisions of anticipated default on the loans and advances made in respect of total assets including standard assets and the claim of the assessee does not fall into the proviso to section 36(1)(viia) as the proviso deals with further deduction for provisions on bad and doubtful debts. The claim of the assessee is covered in the main provisions of section 36(1)(viia) of the Act. The learned CIT(A) has passed a very exhaustive and speaking order and we do not find any infirmity in the same - Decided against revenue.
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2016 (6) TMI 1442
Interpretation of statute - Section 52A read with Section 55 of NDPS Act, 1985 - seizure of goods - Contraband - whether in the matter of seizure, the prosecution is required to follow the procedure prescribed under Section 52A of the Act (amended by Amendment Act No.2 of 1989)? - HELD THAT:- There is no doubt, Section 52A was inserted by Act 2 of 1989 w.e.f. 29.5.1989. While, sub section (1) of Section 52A substituted earlier provision vide S.O.1183(E) dated 30.4.2014. Thus, question arise whether law laid down by the Division Bench in the above case State of Gujarat v. Jabbirsing Ratansing Indra Rajput [2013 (2) TMI 917 - GUJARAT HIGH COURT] reflect correct interpretation about applicability of Section 52A under Chapter V of the Act 1985 at the time of seizure of the contraband is correct interpretation or not is to be considered since the heading of Section 52 is about disposal of persons arrested and articles seized and of Section 52A is about disposal of seized narcotic drugs and psychotropic substances.
Having seized articles /contrabands a question arise about disposal of such contrabands, for which, procedure is envisaged of preparing inventory and such list of articles, for which, an application is to be made to the Magistrate for the purpose mentioned in (a), (b) and © of sub-section (2) of Section 52A. Thus, seizure having affected, first, next stage would be procedure to be followed for disposal of seized articles.
For further argument and production of S.O.1183(E) dated 30.4.2014, the matter is stand over to 9.6.2016.
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