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2012 (12) TMI 1155
Determination of annual letting value (ALV) of the property u/s 23(1) - whether it can be determined as per municipal valuation or not? - Held that:- Annual letting value of the property in question should be determined as per the municipal valuation/rateable value adopted by the municipal authorities. Accordingly, the Assessing Officer is directed to adopt the municipal valuation/rateable value adopted by the municipal authorities.
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2012 (12) TMI 1154
Issues involved: The issue raised is the confirmation of penalty u/s. 271(1)(c) of the I.T. Act by the Ld. Commissioner of Income Tax (A) in the case of the Assessee for assessment year 2008-09.
Details of the Judgment:
1. The Assessee, engaged in the business of manufacturing frozen food items, filed a return declaring a loss of &8377; 3,16,19,027. The assessment u/s. 143(3) was completed with a loss of &8377; 2,98,25,260 after certain disallowances.
2. The Assessing Officer imposed a penalty u/s. 271(1)(c) of &8377; 6,09,700 for furnishing inaccurate particulars of income. The penalty was based on disallowances made by the Assessing Officer.
3. The Ld. Commissioner of Income Tax (A) sustained penalty on disallowance of ROC fee and loss on sale of assets but deleted the penalty on disallowance of donation.
4. The Assessee appealed against the penalty order, arguing that the additions were inadvertent mistakes and penalty should not be levied.
5. The Assessee claimed that the Tax Audit Report by the Chartered Accountant did not point out the disallowances. The Assessee also highlighted eligibility for exemption u/s. 80IC.
6. The Tribunal found that the disallowances were due to inadvertent mistakes, not intentional concealment. The Assessee's conduct was not contumacious, and there was no benefit in concealing the items.
7. Citing case laws, the Tribunal held that penalty cannot be imposed for inadvertent mistakes where the Assessee's conduct is not contumacious.
8. Relying on the Hindustan Steel case, the Tribunal emphasized that penalty should not be imposed for technical breaches or bonafide beliefs.
9. Considering the precedents and circumstances, the Tribunal concluded that the levy of penalty was not justified and set aside the orders, deleting the penalty.
This judgment emphasizes the importance of distinguishing between inadvertent mistakes and deliberate concealment of income when imposing penalties u/s. 271(1)(c) of the I.T. Act. The Tribunal's decision was based on the lack of contumacious conduct by the Assessee and the bonafide nature of the errors made, ultimately leading to the deletion of the penalty.
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2012 (12) TMI 1153
Issues Involved:
1. Whether the payments made by the assessee to M/s. Hospet Steels Limited towards services availed for operating and maintaining an integrated steel plant are in the nature of reimbursement.
2. Whether the said payments attract the provisions of s.194J of the Act.
Summary:
Issue 1: Nature of Payments as Reimbursement
The Revenue contended that the payments made by the assessee to M/s. Hospet Steels Limited (HSL) were towards managerial and technical services and should be considered as fees for professional services. However, the CIT (A) held that these payments were reimbursements made on a cost-to-cost basis, as evident from the profit and loss account of HSL and the Strategic Alliance Agreement (SAA) between the parties. The Tribunal upheld this view, noting that HSL was acting as a conduit pipe for the strategic alliance constituents and no service charges were levied by HSL. The Tribunal concluded that the payments made by the assessee and M/s. Mukund Limited to HSL were indeed reimbursements and did not constitute income in the hands of HSL.
Issue 2: Applicability of s.194J
The Revenue argued that the payments were in the nature of fees for technical services and thus attracted the provisions of s.194J, requiring tax deduction at source (TDS). The CIT (A) disagreed, stating that since the payments were reimbursements with no profit element, they did not attract TDS u/s 194J. The Tribunal supported this conclusion, referencing various judicial precedents that reimbursement of expenses does not partake the character of income and thus does not require TDS. The Tribunal emphasized that the payments were made on a cost-to-cost basis and did not include any income component, thereby falling outside the scope of s.194J.
Conclusion:
The Tribunal dismissed the Revenue's appeals, affirming the CIT (A)'s decision that the payments made by the assessee and M/s. Mukund Limited to HSL were reimbursements and not fees for technical services, and thus did not attract TDS u/s 194J. The Tribunal found no infirmity in the CIT (A)'s findings and sustained them in toto.
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2012 (12) TMI 1151
Issues:
1. Interpretation of Section 36(1)(ii) of the Income Tax Act.
2. Applicability of previous court decisions.
3. Justifiability of addition made by the Assessing Officer.
4. Deletion of addition by the CIT(A).
5. Upholding the Tribunal's decision.
Interpretation of Section 36(1)(ii) of the Income Tax Act:
The case involved the interpretation of Section 36(1)(ii) of the Income Tax Act regarding the addition made under this section. The assessee had paid commission and ex-gratia to its Managing Director, and the Assessing Officer had made an addition which was appealed against. The CIT(A) referred to a previous decision and held that the amounts were not to be added back under Section 36(1)(ii). The ITAT also referenced the same decision and concluded that the excessiveness of the payment could be examined under Section 40A(ii) of the Act, not Section 36(1)(ii). The High Court agreed with this interpretation, stating that the payments were part of the Managing Director's remuneration for services rendered, and upheld the deletion of the addition.
Applicability of previous court decisions:
The CIT(A) relied on a previous decision of the High Court in ACIT v. Bony Polymers (P) Ltd. to support the deletion of the addition made under Section 36(1)(ii). The ITAT also considered a decision in the assessee's own case for the assessment year 2007-08, where the CIT(A) had allowed the claim of the assessee, leading to the deletion of the addition by the AO. The High Court, in line with the previous order upholding the Tribunal's decision, found no reason to differ and dismissed the appeal, emphasizing that no substantial question of law arose.
Justifiability of addition made by the Assessing Officer:
The Assessing Officer had made an addition under Section 36(1)(ii) concerning the commission and ex-gratia paid to the Managing Director. However, both the CIT(A) and the ITAT found that the payments were part of the remuneration for services rendered by the Managing Director and were not excessive, thereby justifying the deletion of the addition.
Deletion of addition by the CIT(A):
The CIT(A) deleted the addition made under Section 36(1)(ii) after considering the nature of the payments made to the Managing Director and the applicability of relevant provisions of the Income Tax Act. The High Court concurred with the CIT(A)'s decision, emphasizing that the payments were justified as part of the Managing Director's remuneration for services rendered, and upheld the deletion of the addition.
Upholding the Tribunal's decision:
The High Court upheld the decision of the ITAT, which had referenced previous court decisions and the nature of the payments made to the Managing Director to conclude that the addition under Section 36(1)(ii) was not warranted. The Court dismissed the appeal, stating that the previous order upholding the Tribunal's decision in a similar matter for the assessment year 2007-08 was valid and no substantial question of law arose in the current case.
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2012 (12) TMI 1150
Interest received on income-tax refund - Fees for technical services - DTAA between India and Denmark - Held that:- This issue has been decided by the Mumbai bench of the Tribunal in the case of Hapag Lloyd Container Linie GmbH v. ADIT (IT) [2010 (12) TMI 282 - ITAT, MUMBAI] by holding interest on income tax refund falling under Article 11 of the DTAA between India and Germany (similar to Article 12 of India and Denmark DTAA under consideration) liable to tax. It has been held in that order that such interest cannot be considered as business income covered under Article 8 of DTAA between India and Germany (similar to Article 9(4) of DTAA between India and Denmark under consideration). In view of the afore-noted order passed by the Mumbai Bench of the Tribunal, we uphold the impugned order on this issue.
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2012 (12) TMI 1149
Issues Involved:
1. Power of the Company Law Board (CLB) to review its earlier orders.
2. Validity of the CLB's decision to entertain a review application.
3. Authority of the CLB to vacate its own orders.
4. Requirement of pronouncement of orders by the CLB.
5. Implementation of resolutions passed at an Extraordinary General Meeting (EOGM).
6. Allegations of oppression and mismanagement.
7. Validity of the abrogation of the right of preemption.
8. Abuse of majority rights in amending the Articles of Association.
9. Challenge to the conduct of the EOGM.
10. Impact of pending Supreme Court proceedings on the CLB's decisions.
Summary:
Issue A: Power of the CLB to Review Its Earlier Orders
The court held that the CLB does not have the power to review its earlier order unless the order was obtained by fraud or fabricated documents. The CLB's modification or vacation of interim orders does not amount to a review. The inherent powers of the CLB to modify or vacate interim orders were upheld, distinguishing them from the power of review.
Issue B: Validity of the CLB's Decision to Entertain a Review Application
The court found that the CLB was justified in entertaining an application for modification/vacation of its ad interim order dated 21st May 2012, as the order was not a final order but an interim one. The application was not a review but a modification based on subsequent events.
Issue C: Authority of the CLB to Vacate Its Own Orders
The court held that the CLB could vacate its interim order dated 21st May 2012 based on subsequent events, such as the passing of a resolution at the EOGM. This did not amount to a review of its earlier order but was a modification in light of new circumstances.
Issue D: Requirement of Pronouncement of Orders by the CLB
The court concluded that there is no mandatory requirement for the CLB to pronounce its orders in open court. The essence of pronouncement and communication is to make the parties aware of the order. The order becomes effective once communicated to the parties, and the absence of formal pronouncement does not render it invalid.
Issue E: Implementation of Resolutions Passed at an EOGM
The court found that the CLB was justified in allowing the implementation of the resolution passed at the EOGM held on 22nd May 2012, which deleted Article 57 of the Articles of Association. The resolution was passed in compliance with the law, and the subsequent challenge to the conduct of the EOGM did not prevent its implementation.
Issue F: Allegations of Oppression and Mismanagement
The court held that the appellants failed to prove that the conduct of the majority shareholders amounted to oppression or mismanagement. The decision to delete Article 57 was a valid exercise of corporate democracy and did not constitute an act of oppression.
Issue G: Validity of the Abrogation of the Right of Preemption
The court concluded that the abrogation of the right of preemption (Article 57) was valid as the 1st respondent company had become a public limited company, and such a right was inconsistent with the provisions of the Companies Act, 1956. The resolution to delete Article 57 was in conformity with Section 9 of the Act, which overrides any contrary provisions in the Articles of Association.
Issue H: Abuse of Majority Rights in Amending the Articles of Association
The court found no abuse of majority rights in amending the Articles of Association. The deletion of Article 57 was not oppressive to minority shareholders but was a necessary step to comply with the law.
Issue I: Challenge to the Conduct of the EOGM
The court held that the appellants failed to prove any illegality or mala fide conduct by the Chairman in conducting the EOGM. The Chairman's decision to allow Mr. Rajiv Bakshi to vote on behalf of Godrej Industries Limited was based on valid powers of attorney and was in compliance with the Articles of Association and the Companies Act.
Issue J: Impact of Pending Supreme Court Proceedings
The court held that the pending Special Leave Petition (SLP) before the Supreme Court did not affect the validity of the CLB's order or the resolution passed at the EOGM. The judgment of the Bombay High Court dated 14th June 2011, which was not stayed by the Supreme Court, was binding on the parties and the CLB.
Conclusion:
The appeal was dismissed, and the court upheld the CLB's order allowing the implementation of the resolution passed at the EOGM, which deleted Article 57 of the Articles of Association. The court found no merit in the appellants' claims of oppression, mismanagement, or procedural illegality in the conduct of the EOGM.
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2012 (12) TMI 1148
Validity of notice u/s 143(2) - availability of Assessee to receive the notice - Held that:- We find that admittedly the notice for the assessment year 2005-2006 was issued on 16.10.2006 u/s 143(2) and was served upon the petitioner on 2.11.2006. The proviso to Section 143(2)(ii) of the Act specifically provides that no notice shall be served on the assessee after the expiry of 12 months from the end of the month in which return has been furnished. The Parliament by en-acting the aforesaid proviso specifically, intended that the notice had to be served within a specified period and mere issue of a notice would not be sufficient. The notice had to be served upon the assessee within the period of 12 months from the end of the month on the day return has been filed.
In the present case service on the authorized representative on 19.10.2006 cannot be treated to be a valid service in the eyes of law. The service has to be upon the assessee which in the present case was served on 2.11.2006. The principle laid down by Hon'ble Supreme Court in case of Assistant Commissioner of Income Tax and another Vs. Hotel Blue Moon(2010 (2) TMI 1 - SUPREME COURT OF INDIA) would be fully applicable to the facts of the present case. Therefore, the notice dated 16.10.2006 filed as Annexure-2 to the writ petition which has been served on the petitioner on 2.11.2006 was clearly barred by limitation.
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2012 (12) TMI 1147
Issues involved: The judgment involves the issue of whether the appellant is entitled to deduction under section 80P(2)(a)(i) of the Income Tax Act.
Brief facts: The appellant, a credit cooperative society, filed a return of income for the assessment year 2008-09 claiming exemption under section 80P. The Assessing Officer rejected the claim for deduction under section 80P(2)(a)(i) and brought the declared income to tax.
Appellant's appeal: The appellant appealed to the CIT(A) challenging the denial of deduction under section 80P(2)(a)(i) of the Act.
CIT(A)'s decision: The CIT(A) held that the appellant, being a cooperative credit society and not a cooperative bank, was entitled to deduction under section 80P(2)(a)(i) of the Act. The CIT(A) distinguished between cooperative banks and cooperative credit societies, concluding that the appellant fell under the latter category and was eligible for the deduction.
Revenue's appeal: The revenue, aggrieved by the CIT(A)'s decision, appealed before the Appellate Tribunal, arguing that the appellant's activities constituted banking transactions falling under section 80P(2)(a)(i) of the Act.
Tribunal's analysis: The Tribunal examined the definitions of cooperative bank and cooperative credit society under the Banking Regulation Act, 1949, and concluded that the appellant, providing credit facilities to its members and not to the general public, was a cooperative credit society. Referring to a previous Tribunal order, the Tribunal upheld the CIT(A)'s decision, stating that the appellant was entitled to deduction under section 80P(2)(a)(i) of the Act.
Decision: The Tribunal dismissed the revenue's appeal, affirming the CIT(A)'s order directing the Assessing Officer to grant deduction under section 80P(2)(a)(i) to the appellant.
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2012 (12) TMI 1146
Issues involved: Alleged violation of Securities and Exchange Board of India regulations leading to market manipulation and imposition of penalty under Section 15HA of the Securities and Exchange Board of India Act, 1992.
Summary:
1. The appellant, an investor and trader in the share market, was found to have engaged in manipulative trades related to the scrip of a company, leading to artificial volume creation. The appellant was alleged to be part of a group involved in synchronized and structured trades affecting market prices.
2. The appellant denied the charges, claiming that others misused his name and account without authorization. Despite filing a FIR against the involved parties, the adjudicating officer found the appellant guilty of violating regulations and imposed a penalty of `8 lacs under Section 15HA of the Act.
3. The appellant challenged the adjudication process, arguing that the penalty was based on conjectures and lacked evidence. However, the respondent Board supported the adjudicating officer's decision, presenting documents showing the appellant's awareness of the trades conducted on his behalf.
4. The High Court dismissed the appellant's objection regarding the composition of the Appellate Tribunal, allowing the appeal to proceed. After considering arguments from both sides, the Tribunal upheld the adjudicating officer's order, rejecting the appellant's defense of not understanding English and finding the penalty proportionate to the established violation.
5. The Tribunal concluded that the adjudicating officer followed due procedure, provided detailed evidence of manipulative trades, and considered relevant factors in imposing the penalty. The appeal was dismissed, with no costs awarded.
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2012 (12) TMI 1145
Issues Involved:
1. Allegation of synchronized trades and creation of artificial volumes.
2. Appellant's defense against the allegations.
3. Board's stance on the appellant's trades.
4. Tribunal's analysis of the appellant's trades.
5. Precedents cited by the Tribunal.
6. Self trades by the appellant.
7. Consideration of extra benefits from volume manipulation.
8. Proportionality of the restraint period.
Summary:
1. Allegation of synchronized trades and creation of artificial volumes:
The appellant was restrained from accessing the securities market for 18 months by the Securities and Exchange Board of India (SEBI) for allegedly engaging in synchronized trades, contributing to artificial volumes in the scrips of Bang Overseas Limited, Confidence Petroleum India Ltd., and Cals Refineries Limited. The order was passed u/s 19 read with Sections 11 and 11B of the SEBI Act, 1992, and Regulation 11 of the FUTP regulations.
2. Appellant's defense against the allegations:
The appellant argued that she was unaware of the manipulative activities of the connected group and acted per normal business standards. She contended that her trades were insignificant, constituting less than 3% of the overall trades, and there was no financial connection with the parties involved. The appellant also claimed that the self trades were merely for shifting positions between brokers.
3. Board's stance on the appellant's trades:
The Board maintained that the appellant's trades fell into the category of reversal, self trades, and matching trades, contributing to artificial volumes. The Board argued that the appellant's trades showed a common pattern of matching in volume, time, and quantity, indicating a meeting of minds with the connected entities.
4. Tribunal's analysis of the appellant's trades:
The Tribunal found that the appellant's trades convincingly demonstrated involvement in synchronized/reversal transactions. The consistent matching of trades over time, facilitated by a common broker (the appellant's husband), indicated a deliberate manipulation of volumes. The Tribunal dismissed the appellant's argument of insignificant trades and coincidence.
5. Precedents cited by the Tribunal:
The Tribunal referenced previous cases, such as M/s. Galaxy Broking Ltd. vs. SEBI and GIR Marketing & Trading Co. Pvt. Ltd. vs. SEBI, to support the view that reverse trades and cross deals executed through a common broker are indicative of manipulative practices.
6. Self trades by the appellant:
The Tribunal held that self trades are inherently illegal and fictitious, meant to create false volumes. The appellant's explanation for self trades was deemed unconvincing, and the Tribunal noted that self trades involving 500 shares remained admitted.
7. Consideration of extra benefits from volume manipulation:
The Tribunal stated that it was unnecessary to consider the issue of extra benefits since the appellant's involvement in manipulative activities was evident and prohibited by the FUTP regulations.
8. Proportionality of the restraint period:
The Tribunal found merit in the appellant's argument that the 18-month restraint was excessive. Considering the relatively lesser contribution to artificial volumes, the Tribunal reduced the restraint period to three months from the date of the impugned order.
Conclusion:
The appeal was partly allowed, reducing the restraint period to three months. No costs were awarded.
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2012 (12) TMI 1144
Issues involved: Violation of Regulation 4(2)(b) of FUTP Regulations, imposition of monetary penalty under Section 15HA of SEBI Act.
Summary:
The appeal was filed against the order of the adjudicating officer of SEBI holding the appellant guilty of violating Regulation 4(2)(b) of FUTP Regulations and imposing a penalty of Rs. 18 lacs under Section 15HA of SEBI Act. The appellant, a registered stockbroker, engaged in proprietary trades in the scrip of a company during a specific period. The investigation revealed irregularities in trading activities, including self-trades with entities leading to price manipulation. The appellant was issued a show cause notice, denied the charges, but was found guilty by the adjudicating officer and penalized. The appeal challenged this decision.
The Securities Appellate Tribunal upheld the findings of the adjudicating officer, emphasizing that the appellant's trades with connected parties, involving loans for trading resulting in price rise, violated Regulation 4(2)(b) of FUTP Regulations. The Tribunal rejected the appellant's argument regarding lack of action against counter parties, stating that equality before the law does not imply immunity from individual violations. The Tribunal also considered the penalty amount, noting disparities in penalties imposed on similar violators and reduced the penalty from Rs. 18 lacs to Rs. 3 lacs, citing considerations of justice and proportionality.
In conclusion, the Tribunal affirmed the guilt of the appellant for violating FUTP Regulations, reduced the penalty to Rs. 3 lacs, and imposed no additional costs.
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2012 (12) TMI 1143
Issues involved:
Quashing of show cause notice u/s 154 of the Finance Act, 2003 regarding denial of exemption benefit and refund claim for non-fulfillment of conditions of provisional registration certificate and exemption.
Judgment Summary:
Issue 1:
The petitioners claimed exemption benefit under Notification No. 32/99-C.E., dated 8-7-1999 but were issued a show cause notice for alleged non-compliance with conditions of provisional registration certificate (PRC) and exemption requirements.
Details:
The petitioners argued that their unit met the specified date and location criteria for exemption, and permanent registration was not mandatory for exemption eligibility.
Issue 2:
The show cause notice contended that the petitioners did not fulfill conditions set by the State Government for establishing non-tobacco employment generating industries, which was a prerequisite for exemption.
Details:
The petitioners refuted this claim, stating they had taken steps to set up a pharmaceutical unit and had obtained Industrial Entrepreneur Memorandum (IEM) from the Govt. of India.
Issue 3:
The Finance Act, 2003 amended the exemption notification, leading to a retrospective withdrawal of exemption benefits for certain products, including cigarettes and pan masala containing tobacco.
Details:
The Supreme Court upheld the validity of this amendment, emphasizing the intent to stimulate industrial growth and prevent misuse of exemptions by certain industries.
Conclusion:
The High Court ruled in favor of the petitioners, stating that the show cause notice was unjustified as the conditions for exemption were met, and additional requirements beyond the exemption notification were not enforceable. The Court directed a fresh decision within three months.
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2012 (12) TMI 1142
The High Court of Karnataka disposed of the petition as withdrawn after the parties settled the dispute out of court. The respondent paid the petitioner a total sum of Rs. 2.5 crores through three demand drafts for full settlement of the claims.
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2012 (12) TMI 1141
Issues Involved:
1. Validity and enforceability of the arbitration agreement dated January 12, 2002.
2. Whether the agreement dated March 8, 2002, and July 30, 2004, superseded the January 12, 2002 agreement.
3. Application of the principle of res judicata.
4. Applicability of Section 14 of the Limitation Act, 1963.
Summary:
Issue 1: Validity and Enforceability of the Arbitration Agreement
The plaintiff sought a decree declaring the arbitration agreement in Clause 15 of the January 12, 2002 agreement as "void and/or unenforceable and/or has become inoperative and/or incapable of being performed." The Court noted that the arbitration clause provided for disputes to be settled by the International Chamber of Commerce with arbitration in Paris under Indian law. The plaintiff argued that the arbitration agreement had been superseded by subsequent agreements dated March 8, 2002, and July 30, 2004, which stipulated that the Courts in Calcutta alone would have jurisdiction.
Issue 2: Supersession by Subsequent Agreements
The Court examined the agreements dated March 8, 2002, and July 30, 2004, which introduced CP(I)PL as a new party with independent obligations, including the payment of consideration. These agreements altered the original terms of the January 12, 2002 agreement, and included a jurisdiction clause that the Courts in Calcutta alone would have jurisdiction. The Court concluded that these agreements substantially altered the original agreement, effectively superseding the arbitration clause.
Issue 3: Principle of Res Judicata
The Supreme Court had previously held that the Company Law Board did not have jurisdiction under Sections 397, 398 read with Section 402 of the Companies Act to order specific performance of the January 12, 2002 agreement. The Court found that the Supreme Court's decision did not bind the parties on the issue of specific performance of the agreement to transfer 155 million shares, as it was deemed a private dispute not involving the company, HPL. Therefore, the issue was not res judicata.
Issue 4: Applicability of Section 14 of the Limitation Act
The Court held that Section 14 of the Limitation Act, 1963, applied to the defendants, as they had proceeded bona fide before the Company Law Board, High Court, and Supreme Court on the same issues. The Court granted the defendants the benefit of Section 14, stating that the arbitral reference was made within time.
Conclusion:
The Court affirmed the existing order of injunction restraining arbitration before the International Court of Arbitration at Paris until the disposal of the suit. The findings were deemed prima facie, and the protection under Section 14 would apply for eight weeks, within which the defendants must institute appropriate proceedings. The applications by the third and fourth defendants for deletion of their names from the cause title were allowed, as no cause of action was disclosed against them.
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2012 (12) TMI 1140
Legal heir - offences punishable under Section 302 r/w 149 I.P.C. - Held that:- Parties are Hindus and the law of heritance applicable to them is the Hindu Succession Act. Section 8 of the Hindu Succession Act sets out the general rules of succession in case of a male Hindu dying intestate, the property would devolve first up on the heirs specified in Class-I of the schedule and secondly, if there is no heir of Class-I, then up on the heirs specified in Class-II of the schedule; thirdly if there is no heir of any of the classes, then up on the agnates of the deceased and lastly if there are no agnates, then up on the cognates of the deceased. Section 9 of the Hindu Succession Act provides the order of succession amongst heirs in the schedule. Those in Class-I take simultaneously and to the exclusion of all other heirs, there in the first entry in Class-II are preferred to those in the second entry. Section 12 prescribes the order of succession amongst agnates and cognates.
In view of the provisions of Sections 8 and 9 of the Hindu Succession Act, the appellant being a Class-II heir would not inherit anything from his deceased brother, as he is survived by his wife. Thus, the appellant is not entitled to the property of the victim under the applicable law of inheritance. Though the appellant falls in one of the category of heirs as per the Hindu Succession Act, but the Legislature deliberately used the word "legal heir", which strictly means a person who is entitled to the property of the victim under the applicable law of inheritance i.e. Hindu Succession Act. Hence, we are of the considered opinion that when it is the intention of the Legislature to give right of appeal to the legal heir, the appellant will not fall within the definition of "legal heir" and he is not entitled to prefer an appeal to this Court under Section 372 Cr. P.C. against acquittal of the accused.
Incident has taken place on 07.12.2007 and the amendment to Section 372 Cr. P.C. has come into force w.e.f. 31.12.2009, where the victim can prefer an appeal against acquittal. The appellant fails, and as such, the appeal is liable to be dismissed as not maintainable. In the result, the criminal appeal is dismissed as not maintainable.
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2012 (12) TMI 1139
Issues involved: Application u/s 391 & 394 of the Companies Act, 1956 for Scheme of Amalgamation between two companies.
Details of the Judgment:
1. The Application was filed for the Scheme of Amalgamation between Transferor Company and Transferee Company, providing details of incorporation, capital, and accounts of both companies.
2. Transferor Company is a wholly owned subsidiary of Transferee Company, both under the same management, seeking to expand the asset base of the Transferee Company.
3. No proceedings u/s 235 to 251 of the Act were pending against either company at the time of the Application.
4. The proposed Scheme was approved by the Board of Directors of both companies, with resolutions filed along with the applications.
5. Details of shareholders, secured and unsecured creditors of Transferor Company were certified by Chartered Accountants, with consents from shareholders and creditors provided.
6. Prayers were made for dispensation of convening meetings of shareholders, secured creditors, and unsecured creditors due to specific circumstances:
- Entire capital of Transferor Company held by Transferee Company.
- Transferor Company having no secured creditor.
- No-objections from unsecured creditors for dispensation of their meeting.
7. Considering the above circumstances, the Court granted dispensation of the requirement to convene meetings of shareholders and unsecured creditors of the Transferor Company, as it would be a futile exercise involving substantial expenses.
8. The applications were allowed in the terms mentioned, with an order for Dasti.
This judgment dealt with the application filed under Sections 391 & 394 of the Companies Act, 1956 for the Scheme of Amalgamation between two companies, detailing their structure, approvals, and the request for dispensation of shareholder and creditor meetings based on specific circumstances and consents provided.
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2012 (12) TMI 1138
Issues involved: Jurisdiction of the Tribunal in relation to arbitration, maintainability of petition under Section 9 of the Arbitration and Conciliation Act, 1996.
In the judgment, the High Court of Delhi addressed the issue of jurisdiction concerning a petition under Section 9 of the Arbitration and Conciliation Act, 1996. The order in question, dated December 3, 2012, pertained to OMP 1127/2012 filed by the appellant. The Tribunal's decision on jurisdiction led the learned Single Judge to schedule a hearing for January 07, 2013, to assess the maintainability of the petition. The crux of the impugned order emphasized that if the subject matter of dispute is non-arbitrable, the Court's intervention under Section 9 would not be warranted. However, the Court retained the power to issue ad-interim orders while deciding on its jurisdiction, a point that was not extensively argued before the Single Judge. The judgment concluded by directing the appellant to bring attention to the legal position and considerations for an ad-interim direction, leaving the decision on maintainability to the discretion of the Single Judge. The Court also noted that no opinion on the merits of the controversy was expressed, and ordered the distribution of the order to the respective counsels promptly.
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2012 (12) TMI 1137
Addition relying on the 26AS statement - Held that:- The reconciliation was to be given effect to by the Assessing Officer in view of the fact that it was not purely not undisclosed income in the impugned Assessment Year insofar as the same income cannot be taxed twice and further more expenditure incurred on behalf of the tax deductors not billed to the tax deductors cannot form part of the income of the assessee being a statutory liability could at best be disallowed u/s.43B has not been established by the Assessing Officer which issue leans in favour of the assessee at the time of verification of reconciliation by the Assessing Officer. In view of the above, we set aside the order of the learned CIT(A) on this issue and restore the same to the file of the Assessing Officer for consideration afresh
Addition u/s 43B - delay in EPF & ESI contributions - Held that:- There is no dispute of the fact that the amount in question has been deposited before the due date of filing of return and that too within the grace period allowed by the respective statutes, therefore, cannot be disallowed
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2012 (12) TMI 1136
Issues involved: Search and seizure operation, discrepancy in registers, excise duty liability, Tribunal's decision review.
In the present case, a search and seizure operation was conducted at the appellant's factory and offices, resulting in the discovery of incriminating documents - a computerized register and a handwritten register, showing discrepancies with the statutory register. The appellant was issued a show cause notice for allegedly removing more goods than declared. The Commissioner accepted the appellant's explanation that unrecorded copy GRs/RRs were for raw materials returned, not goods sent. However, the Tribunal disagreed, without independently verifying if the unrecorded GRs/RRs were related to clandestine removals. The High Court held that the Department should pinpoint the quantity of goods allegedly removed clandestinely to determine the correct excise duty liability. The matter was remitted back to the Commissioner for further investigation.
The Tribunal noted evidence of payments received by the appellant for clearances shown in the seized registers, but failed to discuss this evidence. The High Court emphasized the need for evidence demonstrating that payments were received for alleged clandestine transactions recorded in the registers. The Commissioner was reminded to consider this aspect independently and make a judicious decision without being influenced by any prior views expressed.
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2012 (12) TMI 1135
Issues involved: Addition of cash credits u/s. 68 of the IT Act for assessment year 2007-08.
Facts: The appellant, engaged in money lending and jewellery business, received cash credits from 20 individuals without proper proof of identity, creditworthiness, or genuineness of transactions. Despite explanations, confirmatory letters, and account copies, the authorities found the appellant failed to substantiate the legitimacy of the credits.
Appellant's Arguments: The appellant contended that the cash credits were advances for purchasing silver ornaments, supported by confirmatory letters and cash transactions. The appellant cited various legal precedents and requested another opportunity to prove the case before the AO.
Decision: The Tribunal upheld the lower authorities' decision, emphasizing the appellant's failure to establish the identity, creditworthiness, and genuineness of the creditors. Citing legal judgments, the Tribunal highlighted the onus on the appellant to provide concrete evidence, which was lacking. The Tribunal rejected the appellant's arguments regarding acceptance of books of account and the need for summoning creditors. Ultimately, the Tribunal concluded that the appellant's case lacked evidence and upheld the dismissal of the appeal.
Conclusion: The Tribunal dismissed the appeal, affirming the addition of cash credits u/s. 68 of the IT Act due to the appellant's inability to prove the legitimacy of the transactions. The Tribunal emphasized the importance of providing substantial evidence to support claims in such cases.
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