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Showing 101 to 120 of 558 Records
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2012 (2) TMI 642
Issues Involved:
1. Deletion of addition of Rs. 10,48,68,269/- related to weight loss on dismantling of ships.
2. Deletion of addition of Rs. 25 lakhs on account of labour charges.
3. Deletion of addition of Rs. 10,35,095/- on sale of furnace and lubricant oils.
4. Deletion of addition of Rs. 40,41,847/- related to spare propeller not forming part of LDT.
Summary:
Issue 1: Deletion of Addition of Rs. 10,48,68,269/- Related to Weight Loss on Dismantling of Ships
The main issue involves determining whether the weight loss on dismantling ships should be related to the total weight of the ship or the light displacement tonnage weight (LDT). The Assessing Officer (AO) argued that the weight loss should be 2% of the total weight, not 12%-18% of the LDT as claimed by the assessee, leading to an addition of Rs. 10,48,68,269/- as unexplained sales. The CIT (A) deleted the addition, stating that the industry norm is to measure weight loss with reference to LDT, which ranges from 12% to 20%. The ITAT upheld the CIT (A)'s decision, agreeing that the AO's methodology lacked basis and was inconsistent with industry standards and previous judicial decisions.
Issue 2: Deletion of Addition of Rs. 25 Lakhs on Account of Labour Charges
The AO compared the labour charges claimed by the assessee with those of an associated company and concluded that the assessee had undercharged labour costs by Rs. 25 lakhs. The CIT (A) deleted the addition, noting that the AO's comparison was flawed and that the payments to labourers were duly recorded in the books and registers without any specific defects. The ITAT upheld the CIT (A)'s decision, finding no basis for the AO's addition.
Issue 3: Deletion of Addition of Rs. 10,35,095/- on Sale of Furnace and Lubricant Oils
The AO added Rs. 10,35,095/- to the income, assuming that the assessee sold lubricant and furnace oil outside the books of account. The CIT (A) deleted the addition, stating that the figures in the bill of entry were indicative and not physically verified, and that the recovered oil was duly accounted for in the books. The ITAT upheld the CIT (A)'s decision, agreeing that the AO's addition lacked basis and was inconsistent with previous judicial decisions.
Issue 4: Deletion of Addition of Rs. 40,41,847/- Related to Spare Propeller Not Forming Part of LDT
The AO added Rs. 40,41,847/- to the income, assuming that spare propellers were sold outside the books of account. The CIT (A) deleted the addition, noting that the propellers were accounted for as part of the total scrap and that the sale of propellers in the subsequent year was undisputed. The ITAT upheld the CIT (A)'s decision, finding no basis for the AO's addition and noting inconsistencies in the AO's findings.
Conclusion:
The Revenue's appeal was dismissed, and the cross-objection in support of the CIT (A)'s order was also treated as dismissed. The ITAT upheld the CIT (A)'s decisions on all issues, finding no basis for the AO's additions.
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2012 (2) TMI 641
Issues Involved:
1. Whether the assessee's receipt of Rs. 10 lakhs is out of income of HUF, so as to claim exemption u/s 10(2) of the Income-tax Act, 1961.
2. Whether the sum of Rs. 10 lakhs received by the assessee falls within the definition of 'relative' as provided in Explanation to sec. 56(2)(v) of the Income-tax Act, 1961.
Summary of Judgment:
Issue 1: Exemption u/s 10(2) of the Act
The first issue before the Tribunal was whether the assessee's receipt of Rs. 10 lakhs from her HUF qualifies for exemption u/s 10(2) of the Act. The Tribunal noted that the gift was made through a banking channel and the assessee provided details of the HUF's income from previous years. However, the Tribunal emphasized that for exemption u/s 10(2) of the Act, the amount must be paid out of the income of the HUF for the relevant assessment year and not from accumulated income of earlier years. The Tribunal concluded that since the HUF's income for the relevant assessment year was only Rs. 1,21,284, it could not make a gift of Rs. 10 lakhs to the assessee out of such income. Therefore, the Tribunal allowed the revenue's appeal on this issue, deciding in favor of the revenue and against the assessee.
Issue 2: Definition of 'Relative' u/s 56(2)(v) of the Act
The second issue was whether the sum of Rs. 10 lakhs received by the assessee falls within the definition of 'relative' as provided in Explanation to sec. 56(2)(v) of the Act. The Tribunal examined the provisions of sec. 56(2)(v) and the definition of 'relative' in the Explanation. It noted that the term 'relative' includes any lineal ascendant or descendant of the individual. The Tribunal further referenced case laws and concluded that an HUF, being a person within the meaning of sec. 2(31) of the Act, consists of members who are lineally ascendant or descendant from a common ancestor. Therefore, the HUF entity falls within the definition of 'relative' as defined in the Explanation to sec. 56(2)(v) of the Act. Consequently, the Tribunal upheld the CIT(A)'s order on this issue, allowing the assessee's claim.
Conclusion:
The Tribunal allowed the revenue's appeal on the first issue, deciding that the gift of Rs. 10 lakhs did not qualify for exemption u/s 10(2) of the Act. However, it dismissed the revenue's appeal on the second issue, holding that the sum received by the assessee from the HUF falls within the definition of 'relative' u/s 56(2)(v) of the Act. Thus, the appeal of the revenue was dismissed.
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2012 (2) TMI 640
Additional depreciation on Wind Mill purchased during the year - Whether Electricity is neither an article nor a thing? - Held that:- As decided in Texmo Precision Castings [2009 (10) TMI 140 - MADRAS HIGH COURT] for the application of s. 32(1)(iia) what is required to be satisfied is that the setting up of a new machinery or plant should have been acquired and installed after 31st March, 2002 by an assessee, who was already engaged in the business of manufacture or production of any article or thing and there is no requirement that the setting up of a new machinery or plant should have any operational connectivity to the article or thing that was already being manufactured by the assessee
It is not the case of the Revenue that the assessee has not manufactured woolen carpets and dhurries. - Decided in favour of assessee
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2012 (2) TMI 639
Issues involved: Cross appeals against the order of CIT(A)-I, Bhopal for the assessment year 2007-08.
Assessee's Grounds:
1. CIT(A) erred in invoking provisions of Section 145(3) by rejecting books of account.
2. CIT(A) erred in confirming addition of Rs. 7,16,800/- out of total addition of Rs. 56,43,419/- by estimating net profit @ 6.5%.
3. Charging of interest u/s 234D is not justified.
4. Initiation of penalty proceedings u/s 271(1)© is not justified.
Revenue's Ground:
CIT(A) erred in deleting the addition of Rs. 49,26,619/- out of Rs. 56,43,419/- made by the Assessing Officer on account of suppression of net profit.
Facts:
The assessee, a civil contractor firm, filed return showing income of Rs. 9,30,00,580/- from contract receipts totaling Rs. 1,44,18,05,859/-. The Assessing Officer estimated net profit @ 8% on work done by the assessee and 6% on subcontract basis, resulting in an addition of Rs. 56,43,419/-.
CIT(A) Decision:
CIT(A) confirmed addition of Rs. 7,16,800/- by applying net profit rate of 6.5%, considering past history and nature of work. Both assessee and Revenue appealed.
ITAT Decision:
ITAT found no infirmity in CIT(A)'s order. CIT(A) applied more appropriate net profit rate of 6.5% based on assessee's own showing of 6.45%. Thus, addition of Rs. 7,16,800/- was upheld. Both appeals were dismissed.
This judgment highlights the dispute over net profit estimation, rejection of books of account, and the application of relevant provisions under the Income Tax Act.
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2012 (2) TMI 638
The High Court of Bombay quashed and set aside the CESTAT's order deleting penalty, restoring the matter for reconsideration. The case was referred back to CESTAT for fresh consideration in light of a Supreme Court judgment. All contentions of both parties were kept open. The appeal was disposed of with no costs.
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2012 (2) TMI 637
Issues Involved:
1. Addition on account of on-money receipts from sale of flats/shops.
2. Estimation of undisclosed income from on-money receipts.
3. Addition on account of undisclosed machinery hire charges.
Summary:
Issue 1: Addition on account of on-money receipts from sale of flats/shops
The assessee contested the addition of Rs. 32,57,322/- and Rs. 11,64,015/- on account of on-money receipts. The primary plea was that the entire amounts should not be taxed as income. The assessee also raised an Additional Ground, claiming deduction for unaccounted expenditure incurred against the on-money receipts. The Tribunal admitted the Additional Ground and found that the incurrence of such expenditure was evident from the material on record. The Tribunal directed the Assessing Officer to re-compute the income on account of on-money receipts, estimating the assessable income at 30% of the gross on-money receipts.
Issue 2: Estimation of undisclosed income from on-money receipts
The Assessing Officer estimated further undisclosed income of Rs. 37,80,290/- on the assumption that the assessee received on-money for all flats/shops, even where no such evidence was found. The Tribunal found that the seized material was complete and reflected no unaccounted consideration for some flats/shops. Therefore, it was unjustified to presume receipt of on-money in such cases. The Tribunal directed the deletion of the impugned addition of Rs. 37,80,290/-.
Issue 3: Addition on account of undisclosed machinery hire charges
The assessee challenged the addition of Rs. 16,47,873/- on account of undisclosed machinery hire charges. The Tribunal upheld the findings of the lower authorities, noting that the assessee failed to disclose the receivable amounts in his regular books of account. The addition made by the Assessing Officer was thus affirmed.
Conclusion:
The appeal was partly allowed. The Tribunal directed the Assessing Officer to re-compute the income on account of on-money receipts and delete the addition of Rs. 37,80,290/-. The addition of Rs. 16,47,873/- on account of undisclosed machinery hire charges was upheld. The final assessable total undisclosed income should not be below the amount disclosed by the assessee in the return of income.
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2012 (2) TMI 636
Issues involved: The judgment involves the disallowance of transaction charges and VSAT and leaseline charges by the Assessing Officer (AO) under section 40(a)(ia) for assessment years 2006-07 and 2007-08.
Disallowance of VSAT and Leaseline Charges:
The High Court held that VSAT and Leaseline charges paid by the assessee to the Stock Exchange were reimbursement of charges paid by the Stock Exchange to the Department of Telecommunication, devoid of any income element, and thus not subject to tax deduction at source. The Tribunal upheld the CIT(A)'s deletion of the disallowance under section 40(a)(ia) based on this decision.
Disallowance of Transaction Charges:
The High Court ruled that transaction charges levied by the Stock Exchange for managerial services rendered, such as risk management and surveillance, were subject to tax deduction at source under section 194J. The AO's disallowance of transaction charges was deemed justified. However, the Tribunal noted the High Court's decision in a similar case where the assessee had a bona fide belief that tax was not deductible at source under section 194J. As the facts in the present case needed verification, the issue was remanded to the AO for further examination in line with the High Court's guidelines.
Conclusion:
The Tribunal partly allowed the Revenue's appeals, upholding the disallowance of transaction charges but remanding the issue for further verification. The disallowance of VSAT and Leaseline charges was not upheld based on the High Court's decision.
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2012 (2) TMI 635
Legal judgment by Supreme Court in 2012 (2) TMI 635 - SC. Justices D.K. Jain and Anil R. Dave dismissed the appeal after condoning the delay.
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2012 (2) TMI 633
Issues involved: Valuation of cloud computing business, interim relief to protect plaintiffs' interest.
Valuation of cloud computing business: The Valuers valued the Defendant No.1's cloud computing business at Rs. 5983 million, while the Plaintiffs claimed approximately Rs. 450 crores. The Court ordered that Defendant Nos.1, 5, and 6 shall not dispose of, alienate, transfer, or create third party interest in the said business pending final disposal of the case. The Valuation Report was sealed and handed over to the Court for safekeeping, with parties allowed to seek permission to obtain a copy and raise contentions before the regular Court.
Interim relief to protect plaintiffs' interest: The Court, based on the valuation disparity and to safeguard the Plaintiffs' interest, continued the Order directing the Defendants not to deal with the cloud computing business. The matter was scheduled for final disposal on 5th March, 2012, and the ad-interim application was disposed of accordingly.
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2012 (2) TMI 632
Disallowance of the claim for credit of TDS u/s. 199 - Held that:- The fee involved is paid subsequently i.e. after 31.3.1998. Since the assessee follows cash system of accounting it did not account for the total fee involved of ₹ 1017843/- as the same was not received by the assessee. However, the parties involved deducted tax on this amount and paid in government account for the credit of assessee. Since this TDS amount was paid to the credit of the assessee it accounted for amount of TDS as fee received and accordingly it claimed benefit of the same.
Assessee’s action is in accordance with provisions of section 199 and the assessee is eligible for seeking credit of the TDS amount. Hence, set aside the orders of the authorities below and decide the issue in favour of the assessee.
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2012 (2) TMI 631
Issues Involved:
1. Condonation of Delay
2. Restoration and Renewal of Trademark
3. Issuance of Notice in Form O-3
4. Interpretation of Section 25 of The Trade and Merchandise Marks Act, 1958
5. Administrative Act of Removal of Trademark
Summary:
1. Condonation of Delay:
The appeal was filed with a delay of 224 days. Despite opposition, the delay was condoned considering the significance of the statutory interpretation involved.
2. Restoration and Renewal of Trademark:
The respondent sought a writ of mandamus for the restoration and renewal of the trademark "MBD," arguing that the statutory Notice in Form O-3 was not sent by the Registrar, which is a prerequisite for removal and non-renewal. The learned Single Judge allowed the writ petition, holding that the mandatory Notice in Form O-3 was not issued, making the removal of the trademark illegal.
3. Issuance of Notice in Form O-3:
The Single Judge found that the Registrar's counter affidavit was presumptive and lacked evidence of issuing the Notice in Form O-3. The Judge concluded that the removal of the trademark without issuing the mandatory notice was improper and illegal.
4. Interpretation of Section 25 of The Trade and Merchandise Marks Act, 1958:
The court interpreted Section 25, emphasizing that the removal of a trademark must follow the issuance of a notice in Form O-3. The court held that the removal of a trademark without following the mandatory procedure prescribed in Section 25(3) and Rule 67 is invalid. The judgment highlighted that the expiration of registration does not automatically lead to removal without compliance with the statutory notice requirement.
5. Administrative Act of Removal of Trademark:
The court rejected the argument that removal of a trademark is merely an administrative act and held that it involves civil consequences and must comply with the statutory procedure. The court emphasized that the removal of a trademark without issuing the mandatory notice is unjust and illegal.
Conclusion:
The appeal was dismissed, and the direction for restoration and renewal of the trademark was upheld, subject to the Registrar verifying that the respondent is the registered proprietor or successor and that no similar marks have been registered in the interim. The judgment reinforced the mandatory nature of the notice requirement before removing a trademark from the register.
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2012 (2) TMI 630
Issues Involved:
1. Acquittal of the accused on the grounds of benefit of doubt.
2. Constitutional validity of Section 27(3) of the Arms Act, 1959.
Summary:
1. Acquittal of the accused on the grounds of benefit of doubt:
The High Court acquitted the accused, a constable, who was charged u/s 302 and 307 of IPC and u/s 27 of the Arms Act, due to "irreconcilable inconsistency in the prosecution case." The High Court noted discrepancies between the testimonies of the alleged eyewitness (PW.9) and the Investigating Officer (PW.12). Specifically, PW.9 claimed to have disarmed the accused at the spot, while PW.12 stated that neither the accused nor the rifle was handed over to him on the date of the incident. Furthermore, only 7 out of 20 fired cartridges were recovered, and no bullets were found, which was deemed "very surprising." The Supreme Court found "no reason to interfere with the order of acquittal" given by the High Court under Article 136 of the Constitution, as the order was based on proper appreciation of evidence.
2. Constitutional validity of Section 27(3) of the Arms Act, 1959:
The Supreme Court examined the constitutional validity of Section 27(3) of the Arms Act, which mandates the death penalty for using prohibited arms or ammunition resulting in death. The Court found the provision to be "very wide" and lacking in guidelines, making it "unreasonable" and "unfair." The Court compared this to Section 302 of IPC, where death penalty is not mandatory but optional, and noted that Section 27(3) does not allow for judicial discretion or consideration of mitigating circumstances. The Court held that Section 27(3) is "violative of Articles 14 and 21 of the Constitution" and thus "void" under Article 13(2). The Court referenced international and domestic judgments, including Mithu v. State of Punjab, which struck down mandatory death penalties as unconstitutional. The Supreme Court declared Section 27(3) of the Arms Act "ultra vires the Constitution" and affirmed the High Court's judgment acquitting the Respondent.
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2012 (2) TMI 629
Issues Involved:
1. Cancellation of the allotment of 1340 additional shares.
2. Declaration of the appointment of the Appellants as directors as null and void.
3. Restoration of the Respondents' directorship.
4. Rectification of the register of members and refund of consideration for canceled shares.
5. Protection of Sri Ajeet Singh Puri from exclusion from company management.
6. Operation of bank accounts and notice for board meetings.
7. Validity of the Company Law Board's findings and jurisdiction under Section 10-F of the Companies Act.
Summary:
1. Cancellation of the Allotment of 1340 Additional Shares:
The Company Law Board found that the appellants, including Sri Ajeet Singh Puri, acted in a highly oppressive manner towards the Respondents by allotting 1340 shares to gain majority control. The Board ordered the cancellation of these shares and rectification of the register of members, restoring the shareholding as it prevailed before 31.03.2007.
2. Declaration of the Appointment of the Appellants as Directors as Null and Void:
The Company Law Board declared the appointment of the Appellants as directors null and void. It was observed that the appointment was made without proper notice and was intended to gain control over the company, which was deemed oppressive.
3. Restoration of the Respondents' Directorship:
The Company Law Board restored the directorship of the Respondents, finding their removal to be oppressive and aimed at concentrating managerial powers within Sri Ajeet Singh Puri.
4. Rectification of the Register of Members and Refund of Consideration for Canceled Shares:
The Board ordered rectification of the register of members and refund of the consideration paid for the canceled shares, ensuring that the shareholding structure was restored to its state before the disputed allotment.
5. Protection of Sri Ajeet Singh Puri from Exclusion from Company Management:
The Company Law Board protected Sri Ajeet Singh Puri from being excluded from the management of the company, allowing him to discharge his functions as before 31.03.2007.
6. Operation of Bank Accounts and Notice for Board Meetings:
The Board stipulated that bank accounts be operated jointly by either of the Respondents and Sri Ajeet Singh Puri to prevent allegations of siphoning of funds. It also required five days' notice along with the agenda to be circulated amongst the directors for board meetings.
7. Validity of the Company Law Board's Findings and Jurisdiction under Section 10-F of the Companies Act:
The High Court upheld the findings of the Company Law Board, stating that the findings were not perverse or arbitrary. The scope of appeal u/s 10-F is limited to questions of law, and the High Court found no reason to interfere with the Board's decision. The Court reiterated that oppression could be made out where conduct is harsh, burdensome, wrong, mala fide, or for a collateral purpose, even if legally permissible.
The appeal was dismissed with costs, affirming the Company Law Board's order.
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2012 (2) TMI 628
Issues:
The judgment involves the interpretation of exemption notifications for "hospital equipment/life saving apparatus" and whether the imported goods are eligible for exemption based on the descriptions provided in the notifications.
Exemption for Litho Tripter:
The department contested the exemption claimed for Litho Tripter, arguing that the exemption is for a complete operating set, whereas the imported goods are only a part. However, the lower appellate authority found that functionally the impugned goods are the same as listed in the notifications. The respondent argued that the goods are imported with all accessories required for ultrasonic kidney stone removal, making them eligible for exemption.
Exemption for Autosharp Microtome and Cryostat:
Regarding Autosharp Microtome and Cryostat, the department sought to deny exemption based on the ground that only "cryostat" is covered under the notification. The respondent contended that "cryostat" is an engineering term and the exemption is intended only for "cryostat tissue embedding systems."
Exemption for Central Monitoring System:
For the Central Monitoring System, the department demanded duty based on the imported item being a "single channel monitor," while the exemption was for "multi-channel monitoring systems." The respondent argued that the imported goods were a "multi-channel cardiac system" with a "Central Monitoring Unit," and they are entitled to the exemption claimed.
Exemption for CO2 Incubator:
Regarding the Automatic water jacketed CO2 incubator, the department demanded duty based on the imported item not being a "intensive care Servo-controlled incubator." The respondent maintained that the incubators are used for intensive care and are automatic, thus eligible for exemption.
Conclusion:
The appellate tribunal upheld the lower appellate authority's decision, dismissing the department's appeal. The respondents are required to pay the applicable duty as per the exemption notifications allowed by the lower appellate authority, with adjustments against the duty liability already paid.
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2012 (2) TMI 627
Input Tax Credit - appellant case id that they have not availed credit during the period - Held that: - Considering the fact that the applicant has not availed credit during the impugned period for which they are entitled, the liability of demand would reduce to ₹ 1.42 lakhs, approximately - matter remanded back to the original adjudicating authority to verify how much amount of credit is available and reduce the demand accordingly - appeal allowed by way of remand.
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2012 (2) TMI 626
Issues Involved:
1. Failure to exercise due diligence in disclosing Rabobank as a promoter.
2. Failure to exercise due diligence in disclosures for allocation of shares to QIBs.
3. Failure to properly monitor the flow of applications and other matters post-closure of the public issue.
Summary:
1. Failure to exercise due diligence in disclosing Rabobank as a promoter:
The appellant was charged with not disclosing Rabobank International Holding B.V. (Rabobank) as a promoter of Yes Bank Ltd. in the IPO prospectus. The Board argued that Rabobank's 20% shareholding was part of the 49% promoters' contribution required by the RBI, and its omission misled investors. The appellant contended that Rabobank was a co-promoter only for the banking license application and not a promoter under the DIP guidelines. The Tribunal agreed with the appellant, noting that Rabobank was consistently not treated as a promoter in financial statements and the DRHP cleared by the Board. The Tribunal concluded that the Board failed to prove Rabobank met the DIP guidelines' definition of a promoter, and thus, the appellant did not violate due diligence requirements.
2. Failure to exercise due diligence in disclosures for allocation of shares to QIBs:
The appellant was accused of exercising discretion in a biased manner by favoring foreign institutional investors over mutual funds and banks in the QIB category. The appellant argued that the DIP guidelines allowed discretion in QIB allotments and that it followed set norms. The Tribunal found that the company, in consultation with the merchant banker, had the discretion to decide allotments and had laid down criteria for this purpose. The Tribunal rejected the Board's claim that the criteria were arbitrary, affirming that the appellant did not breach the DIP guidelines.
3. Failure to properly monitor the flow of applications and other matters post-closure of the public issue:
The appellant was found guilty of not adequately monitoring the flow of applications, leading to shares being allotted to applicants with non-existing DP IDs and other irregularities. The appellant argued that it had deputed experienced officers to monitor the RTA's work and verified applications selectively. The Tribunal noted that the primary responsibility lay with the RTA and that the appellant had taken reasonable steps to ensure compliance. The Tribunal concluded that the appellant did not violate the regulatory framework.
Conclusion:
The appeal was allowed, and the impugned order was set aside with no order as to costs.
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2012 (2) TMI 625
Issues Involved:
The judgment addresses the issue of whether the CESTAT was justified in deleting the penalty levied under Section 11AC of the Central Excise Act, 1944 due to the absence of suppression of facts with intent to evade duty.
Details of the Judgment:
1. The respondent/assessee was involved in manufacturing excisable goods and had agreements with exporters to transfer advance licenses for importing raw materials. The value of these transferred advance licenses was not initially included in the value of goods sold for export.
2. Initially, the Revenue argued that the value of advance licenses should be treated as additional consideration. However, a previous decision by the CESTAT in the case of IFGL Refractories Limited held otherwise.
3. Subsequently, the Apex Court ruled that the additional consideration from advance licenses must be included in the value of goods sold. Following this decision, the excise authorities initiated proceedings for duty recovery and imposed penalties under Section 11AC for a larger period of limitation.
4. The CESTAT, in an order dated 23rd September, 2010, set aside the duty demands and penalties imposed by the excise authorities for the period from December 2000 to September 2005, citing no suppression of facts by the assessee.
5. The judgment highlighted that the decision in favor of the assessee by the CESTAT and the known fact that the assessee sold goods to acquire advance licenses were factors acknowledged by the Revenue from the beginning. The duty demand was based on the Apex Court's ruling and not due to any suppression by the assessee.
6. Considering these circumstances, the CESTAT's decision that there was no suppression of facts and no justification for invoking the extended period of limitation was upheld. The appeal was dismissed with no order as to costs.
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2012 (2) TMI 624
Application for ad interim relief - arbitration petition u/s 9 - direction to furnish solvent security in the form of a bank guarantee of a nationalised bank - provisions of Order 38, Rule 5 CPC - In Present case, Petitioner and the First Respondent enetered into an agreement, later the First Respondent in turn entered into an agreement with the Second Respondent. The agreement stated that the First Respondent had been granted certain exclusive commercial and media rights by the Petitioner for all international cricket matches organised by the Petitioner in India under a Media Rights Agreement. By the agreement between the First and Second Respondents, the First Respondent granted to the Second Respondent, in consideration for a media rights free, broadcast rights for the territory to the events taking place during the term subject to the conditions set out in the agreement. The broadcast rights granted to the Second Respondent comprised solely of the exclusive right to broadcast the event in the territory by means of television rights with a commentary in English. Clause 6 of the agreement sets out a Media Rights Fee payable to the First Respondent by the Second Respondent, while clause 7 spells out the installments for making payment.
HELD THAT:- We are of the view that the learned Single Judge was justified in calling upon the First Respondent to furnish security in respect of the claim of the Petitioner in the amount of ₹ 305 Crores. Having regard to the provisions of Order 38, Rule 5, it would, however, be appropriate to direct the First Respondent to furnish security. Also, for the ends of justice could be met by a direction to the effect that the First Respondent shall within a period of two weeks from today furnish solvent security in the form of a bank guarantee of a nationalised bank in the amount of ₹ 305 Crores to the satisfaction of the Prothonotary and Senior Master.
Order 38, Rule 5 C.P.C. cannot be read into the said provision as it is nor can power of the Court in passing an order of interim measure under section 9(ii)(b) be made subject to the stringent provision of Order 38, Rule 5. The power of the Court in passing the protection order to secure the amount in dispute in the arbitration before or during arbitral proceedings or at any time of making of the arbitral award but before it is enforced cannot be restricted by importing the provisions set out in Order 38 of C.P.C. but has to be exercised ex debito justitiae and in the interest of justice. The Court while considering the application for interim protection under section 9(ii)(b) is guided by equitable consideration and each case has to be considered in the light of its facts and circumstances.
The Appeals are accordingly disposed of.
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2012 (2) TMI 623
Revisional jurisdiction under Section 397 Cr.P.C. was available to the respondent No. 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly.
Additional Sessions Judge and the High Court were not right in holding that for prosecuting the respondent No. 2 for the offences for which the summoning order has been issued, the sanction of the competent authority under Section 197 Cr.P.C. is required. The view of the Additional Sessions Judge and the High Court is bad in law being contrary to the law laid down by this Court in Prakash Singh Badal case (2006 (12) TMI 548 - SUPREME COURT OF INDIA). The second question is answered in the negative and in favour of the appellant.
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2012 (2) TMI 622
Issues involved: The judgment involves the reduction of additions made by the Assessing Officer u/s 14A of the Income Tax Act, specifically related to the orders for the A.Y. 2007-08, 2001-02, and 2006-07.
A.Y. 2007-08:
The Revenue raised an issue regarding the correctness of the disallowance made by the Assessing Officer u/s 14A of the Income Tax Act, following the provisions of Rule 8D of the Income Tax Rules, 1962. The argument presented was that Rule 8D should not be applied retrospectively, as established by various court decisions, including the Jurisdictional High Court ruling in the case of Maxopp Investment vs. CIT. The contention was to restore the issue to the AO for reevaluation based on the court decisions.
A.Y. 2006-07:
In this appeal, the Revenue also raised a ground concerning the assessee advancing loans at concessional rates for non-business purposes while paying interest on borrowed capital/funds. This issue was linked to the reduction of additions made u/s 14A. The AO had applied Rule 8D in the A.Y. 2007-08, resulting in disallowances totaling &8377; 2,95,03,813, whereas the assessee self-disallowed only &8377; 85,48,009. The CIT(A) calculated disallowances using a formula different from the one adopted by the assessee, which was deemed incorrect based on the decision of the Hon'ble Delhi High Court.
Cross Objection:
The delay in filing the Cross Objection by the assessee was a point of contention. The AR argued that there was a valid reason for the delay and requested condonation. The AR emphasized the importance of substantial justice over technical considerations and pleaded for the delay to be excused. After hearing both sides, the Tribunal considered the arguments and decided to allow the appeals of the Revenue and the Cross Objection of the Assessee for statistical purposes.
Conclusion:
The Tribunal held that while Rule 8D cannot be applied retrospectively, the method adopted by the CIT(A) for apportioning expenditure towards exempted income was incorrect. Referring to the decision of the Hon'ble Delhi High Court, the Tribunal emphasized the need for the AO to verify the correctness of the assessee's claims regarding expenditure, especially for the period before the introduction of Rule 8D. The issue was thus remanded back to the AO for a fresh decision, ensuring a reasonable opportunity for the assessee. The appeals of the Revenue and the Cross Objection of the Assessee were allowed for statistical purposes.
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9911796707
