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Showing 101 to 120 of 934 Records
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2013 (2) TMI 843
Issues involved:
The judgment involves the following issues:
(A) Depreciation on royalty paid by the Assessee Company
(B) Deduction u/s.35(1)(iv) on capital expenditure for construction
(C) Deduction u/s.35(2AB) on expenditure for development of new products
Issue A - Depreciation on royalty paid:
The Court noted that the issue of allowing depreciation on royalty paid by the Assessee Company was already decided in favor of the Assessee in a previous case. Therefore, the Court declined to entertain this question.
Issue B - Deduction on capital expenditure for construction:
The Counsel mentioned that this issue was previously raised in a different case, and the Court had refused to entertain it. Following the precedent, the Court decided not to entertain this question as well.
Issue C - Deduction on expenditure for development of new products:
The Court admitted the appeal on the issue of allowing a deduction u/s.35(2AB) on expenditure incurred by the Assessee Company towards the development of new products for Glenmark Pharmaceuticals Inc. USA. This issue was considered for further examination and decision by the Court.
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2013 (2) TMI 842
Issues Involved:
1. Whether a secured creditor can maintain a petition for winding up without giving up its security and without pleading the insufficiency of the security.
2. The effect of parallel proceedings under the SARFAESI Act and the Companies Act.
3. The necessity of proving commercial insolvency for winding up petitions.
Summary of Judgment:
Issue 1: Secured Creditor's Right to Winding Up Petition
The court deliberated whether a secured creditor must give up its security or prove the insufficiency of its security to maintain a winding-up petition. The judgment concluded that a secured creditor could maintain a winding-up petition without giving up its security. The creditor must show a claim of more than Rs. 500, and if the demand notice is not satisfied, they can claim deemed insolvency. The court found that the creditor in this case had a valid claim and the company did not raise a bona fide dispute. The court also noted that the balance-sheet demonstrated the company's commercial insolvency.
Issue 2: Parallel Proceedings under SARFAESI Act and Companies Act
The respondents argued that the secured creditor could not pursue winding-up proceedings while also taking actions under the SARFAESI Act. The court rejected this argument, stating that there is no law preventing a creditor from applying for winding up while also pursuing other civil actions to realize their dues. The creditor's right to maintain a winding-up petition is supported by sections 433, 434, and 439 of the Companies Act, 1956.
Issue 3: Necessity of Proving Commercial Insolvency
The court examined whether the creditor needed to prove commercial insolvency to maintain the winding-up petition. The judgment emphasized that the creditor's petition was maintainable on grounds of both statutory notice and the company's inability to pay. The court found enough material to hold that the company was commercially insolvent, as evidenced by its balance-sheet and the fact that the company's fixed assets would be insufficient to continue its business if sold to pay off the dues.
Conclusion:
The appeal was allowed, and the judgment of the single judge, which had dismissed the winding-up petition, was set aside. The case was remanded back for necessary directions regarding admission and advertisement of the winding-up petition. The court concluded that the petition by a creditor is maintainable on both statutory notice and commercial insolvency grounds.
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2013 (2) TMI 841
Issues:
- Application for Leave to Appeal against the order of acquittal under Section 138 of the Negotiable Instruments Act.
- Objection regarding the application being barred by limitation.
- Preliminary objection raised on the maintainability of the Leave to Appeal in the High Court.
- Conflict between decisions of different Single Benches regarding the appeal process against judgments of acquittal in complaint cases.
- Interpretation of legal provisions under Section 378(4) of the Code of Criminal Procedure.
Analysis:
1. The judgment deals with an application for Leave to Appeal filed against an order of acquittal under Section 138 of the Negotiable Instruments Act. The appellant challenged the order passed by the Special Judicial Magistrate acquitting the respondent from the offense. Initially, an appeal was filed in the Sessions Court, but later withdrawn to file the instant application in the High Court.
2. An objection was raised regarding the application being barred by limitation, leading to the filing of an application under Section 5 of the Limitation Act for condonation of delay. The objection was duly noted, and notice was issued to the respondents.
3. A preliminary objection was raised by the respondent's counsel, arguing that according to a previous decision, an application for Leave to Appeal is not maintainable in the High Court against a judgment of acquittal in a complaint case under Section 138 of the N.I. Act. This objection was based on the interpretation that the complainant should file an appeal under Section 372 Cr.P.C. in the Sessions Court.
4. The conflicting decisions of different Single Benches were brought into light, where one held that an appeal against the judgment of acquittal can only be made under Section 378(4) Cr.P.C., while the other suggested filing an appeal under Section 372 Cr.P.C. The appellant's counsel argued that the latter judgment was passed without considering the earlier decision and, therefore, should not be considered good law.
5. The High Court considered the arguments presented and referred to a judgment by the Hon'ble Apex Court in the case of Subhash Chand v. State, which clarified that an appeal against the judgment of acquittal in a complaint case can only be made by filing an application for Special Leave to Appeal in the High Court under Section 378(4) Cr.P.C., not in the Sessions Court.
6. Based on the authoritative pronouncement of the Hon'ble Apex Court, the High Court rejected the preliminary objection raised by the respondent's counsel, affirming that the application for Leave to Appeal against the order of acquittal passed by a Magistrate in a complaint case is maintainable before the High Court. The matter was listed for further orders.
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2013 (2) TMI 840
Issues Involved:
1. Head of taxability of income: 'business income' or 'income from capital gain'.
2. Disallowance of interest u/s 36(1)(iii).
Summary:
Issue 1: Head of Taxability of Income
The primary issue was whether the income from the sale of plots should be taxed as 'business income' or 'income from capital gain'. The assessee, a private limited company engaged in the hotel business, entered into a Development Agreement with M/s. Ess Gee Real Estate Developers to develop a residential colony named Umaid Heritage. The A.O. argued that the activities of sale of plots should be treated as 'adventure in the nature of trade' and taxed as business income, citing the Memorandum of Association and the nature of the development activities. The assessee contended that the land was held as a long-term capital asset and the income should be taxed under the head 'capital gains'. The Tribunal, after reviewing various judicial precedents, concluded that the intention at the time of acquisition, treatment in financial statements, and period of holding were crucial factors. The Tribunal found that the land was held as a capital asset and the income from its sale should be taxed as 'capital gains'.
Issue 2: Disallowance of Interest u/s 36(1)(iii)
The second issue was the disallowance of interest u/s 36(1)(iii) on the grounds that the assessee had advanced interest-free loans to its sister concerns. The A.O. disallowed interest expenditure equivalent to 12% of the interest income on the grounds of deemed income from the security deposit and advances to its sister concerns. The assessee argued that the advances were made out of its own funds and not borrowed funds, and were for business considerations. The Tribunal, citing the jurisdictional High Court's decision in the assessee's own case, held that the burden of proof was on the A.O. to show that borrowed funds were diverted. The Tribunal found that the advances were made out of the assessee's own funds and allowed the interest expenditure.
Conclusion:
The Tribunal allowed the appeals of the assessee, holding that the income from the sale of plots should be taxed as 'capital gains' and not 'business income', and the disallowance of interest u/s 36(1)(iii) was not justified.
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2013 (2) TMI 839
Issues Involved:
1. Maintainability of the Petitions under Section 9 of the Arbitration & Conciliation Act, 1996
2. Jurisdiction of the Court to Grant Interim Measures
3. Arbitrability of Claims Involving Mortgaged Properties
4. Entitlement to Interim Measures under Section 9
Summary:
1. Maintainability of the Petitions under Section 9 of the Arbitration & Conciliation Act, 1996
The petitioner sought the appointment of a Court Receiver for various properties, an injunction, and an order against the respondents to secure the petitioner's claim with interest. The respondents challenged the maintainability of the petitions, arguing that the enforcement of mortgage claims is non-arbitrable. The court addressed this by stating that the petitioner can choose not to file for enforcement of the mortgage in arbitration and can file a money claim instead.
2. Jurisdiction of the Court to Grant Interim Measures
The respondents argued that the court lacked jurisdiction as the mortgaged properties were outside Mumbai and the respondents operated from Hyderabad. The court held that since the loan was disbursed from Mumbai, the agreement was executed in Mumbai, and the parties agreed to Mumbai's jurisdiction, the court had the authority to entertain the petitions.
3. Arbitrability of Claims Involving Mortgaged Properties
The respondents cited the Supreme Court's judgment in Booz Allen & Hamilton Inc. vs. SBI Home Finance Limited to argue that mortgage enforcement is non-arbitrable. The court clarified that if the petitioner does not seek mortgage enforcement in arbitration, the issue of arbitrability does not arise. The court emphasized that it is the petitioner's prerogative to decide the nature of claims to be filed in arbitration.
4. Entitlement to Interim Measures under Section 9
The court examined whether the petitioner made a case for interim measures akin to attachment before judgment under Order 38 Rule 5 of the CPC. The court found that the petitioner had established a prima facie case for interim measures due to the respondents' financial instability and the risk of asset dissipation. Consequently, the court granted interim measures to secure the petitioner's claims.
Orders:
ARBP No. 1321 of 2012:
- Respondent No. 1 to furnish security of Rs. 101,71,03,644/- within four weeks.
- Court Receiver appointed for properties described in Exhibit-P and Exhibit-Q, with respondents as agents on usual terms.
- Injunction against respondents from alienating properties described in Exhibit-P and Exhibit-Q.
- Attachment of bank accounts and injunction in terms of prayer clause (f) and (g).
- Respondents to disclose assets on oath within two weeks.
ARBP No. 1095 of 2012:
- Respondents to furnish security of Rs. 25,02,61,350/- within four weeks.
- Court Receiver appointed for properties described in Exhibit-G, with respondents as agents on usual terms.
- Injunction against respondents from alienating properties described in Exhibit-D and Exhibit-G.
- Respondents to disclose unencumbered property on oath within two weeks.
Both petitions were disposed of with no order as to costs.
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2013 (2) TMI 838
Revision u/s 263 - Applicability of section 50C on leasehold properties - Held that:- It is a case of deemed ownership, itself creates a doubt that whether there has to be an application of section 50C or not. This doubt, in our considered opinion is fatal to invocation of provisions of section 263, because provision of section 263 cannot be invoked where the issue becomes debatable, because if the issue is debatable it goes out of the scope of administration provisions but would fall in the realm of judicial provisions, which is not the purpose and context of section 263, which, in our opinion is to deal only on two realms simultaneously, i.e. whether the order passed by the AO is erroneous in so far as it is prejudicial to the interest of revenue.
In the instant case, the CIT, by invoking the jurisdiction under section 263 stepped on the correctness and questioned the applicability of section 50C on leased property in the SCN, he, therefore transgressed into the judicial territory, which he cannot.
CIT could not have invoked the jurisdiction under section 263 without his own independent application of mind; on otherwise debatable issues and by merely disagreeing on the view taken by the AO. - Decided in favour of assessee.
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2013 (2) TMI 837
Issues involved:
The judgment involves the issues of breach of Sections 50 and 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) during the search and seizure of contraband substance by Customs Officers, as well as discrepancies in the investigation conducted by the Customs Officers.
Details of the Judgment:
Breach of Section 50 of the NDPS Act:
The Trial Court and the High Court concluded that the search and seizure were conducted on the bag in possession of Accused No. 2, not on the person of the accused. The courts interpreted "any person" under Section 50 to refer to a human being, not an inanimate object like a bag. The judgment cited precedents such as State of Haryana v. Suresh and State of Himachal Pradesh v. Pawan Kumar to establish that Section 50 applies only to searches of persons, not articles. The judgment emphasized the need for an inextricable connection between the search of a person and the article for Section 50 to apply.
Breach of Section 42 of the NDPS Act:
The judgment clarified that compliance with Section 42 is not necessary when a search is conducted by a gazetted officer under Section 41(2) of the Act. Citing Union of India v. Satrohan, the judgment highlighted that a gazetted officer's search does not require compliance with Section 42. Precedents like M. Prabhulal v. The Assistant Director and Mohd. Hussain Farah v. Union of India were referenced to support the view that a gazetted officer's presence during a search exempts the need for compliance with Section 42.
Discrepancies in Investigation:
The judgment dismissed the alleged discrepancies in the investigation by Customs Officers as non-fatal to the proceedings. Despite the defense counsel pointing out contradictions, the court did not find them significant enough to impact the case.
Sentencing Modification:
Regarding the sentencing, the court modified the sentence of Accused No. 1 from 13 years to 10 years due to his age and health conditions. However, no remission was granted for Accused No. 2, and the judgment upheld the conviction and fine imposed on him. The appellants were directed to surrender after six weeks to serve the remaining sentence, with their bail bonds canceled.
Conclusion:
The Criminal Appeal was disposed of accordingly, with the judgment addressing the issues of breach of Sections 50 and 42 of the NDPS Act, discrepancies in the investigation, and sentencing modifications for the accused individuals.
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2013 (2) TMI 836
Issues involved: Granting opportunity of hearing, deposit requirement, remand to Commissioner (Appeals).
The judgment directs the appellant to deposit Rs. 3 lakh by a specified date and produce a copy of the challan before the Commissioner (Appeals) with an application to fix a date of hearing on merit. The Commissioner (Appeals) is instructed to grant an opportunity of hearing to the appellant on merits, contingent upon verifying the deposit particulars.
The stay application is disposed of, with the matter remanded to the Commissioner (Appeals) to carry out the aforementioned direction, subject to verifying the challan.
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2013 (2) TMI 835
Issues Involved:
1. Maintainability of the petitions u/s 9 of the Arbitration and Conciliation Act, 1996.
2. Jurisdiction of the court to grant interim measures.
3. Arbitrability of mortgage enforcement.
4. Fulfillment of conditions akin to Order 38 Rule 5 of CPC for attachment before judgment.
Issue-wise Summary:
1. Maintainability of the petitions u/s 9 of the Arbitration and Conciliation Act, 1996:
The petitioner sought appointment of a court receiver, injunction, and directions to secure claims with interest. The court held that the petitions are maintainable under Section 9 of the Act for interim measures, as the petitioner has not yet filed a statement of claim before the arbitral tribunal and can choose to claim either enforcement of mortgage or recovery of money based on other securities.
2. Jurisdiction of the court to grant interim measures:
The court has jurisdiction to entertain the petitions as the loan was advanced from Mumbai, payments were made at Mumbai, and the loan agreement was executed in Mumbai. The court rejected the respondents' contention that the court lacks jurisdiction due to the mortgaged properties being outside its territorial jurisdiction.
3. Arbitrability of mortgage enforcement:
The court referred to the Supreme Court's judgment in Booz Allen and held that enforcement of mortgage is a right in rem and not arbitrable. However, the petitioner can choose to file a money claim before the arbitral tribunal, which would be a right in personam and arbitrable. The court cannot reject the application under Section 9 on the presumption that the petitioner would apply for enforcement of mortgage in arbitration.
4. Fulfillment of conditions akin to Order 38 Rule 5 of CPC for attachment before judgment:
The court found that the petitioner has made out a case for attachment before judgment, satisfying the principles of Order 38 Rule 5 of CPC. The respondents' financial condition was in bad shape, and there was a risk of alienation of properties. Thus, the court granted interim measures to secure the petitioner's claims.
Orders:
Arbitration Petition No. 1321 of 2012:
(a) Respondent no. 1 to furnish security of `101,71,03,644 with interest within four weeks.
(b) Court Receiver appointed for properties described in Exhibit P and Q with injunction against respondents.
(c) Attachment of bank accounts and continuation of interim orders till arbitration disposal and four weeks thereafter.
(d) Respondents to disclose assets on oath within two weeks.
(e) Liberty to petitioner to apply for further reliefs after disclosure.
(f) No order as to costs.
Arbitration Petition No. 1095 of 2012:
(a) Respondents to furnish security of `25,02,61,350 with interest within two weeks.
(b) Court Receiver appointed for properties described in Exhibit G with injunction against respondents.
(c) Restraint on respondents from alienating properties till receiver takes possession.
(d) Respondents to disclose unencumbered property on oath within two weeks.
(e) Liberty to petitioner to apply for further reliefs after disclosure.
(f) No order as to costs.
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2013 (2) TMI 834
Disciplinary proceeding - Initiated against a Senior Accountant Treasury- Service Jurisprudence - Failed to maintain chest book, movement register - Passed the bills, cheques and challans without Signing - On the basis of the enquiry report, the disciplinary authority, after following the requisite procedure, imposed the penalty of reversion to the post of Junior Accountant for two years with the stipulation that there would be postponement of future increments.
Whether the reversion to the lower post for a period of two years with the stipulation of postponement of future increments on restoration to higher category does amount to two major penalties under Rule 9.
HELD THAT:- The rule making authority has splitted Rule 9(vii) into two parts - one is harsher than the other, but, both are less severe than the other punishments, namely, compulsory retirement, removal from service or dismissal. The reason behind it is not to let off one with simple reduction but to give a direction about the condition of pay on restoration and also not to impose a harsher punishment which may not be proportionate.the same really does not affect any vested or accrued right. It also does not violate any Constitutional protection.hence,the order of punishment imposed by the disciplinary authority is restored.
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2013 (2) TMI 833
Issues Involved:
1. Violation of provisions of Section 11C(2) and 11C(3) of the SEBI Act, 1992 by SFPL.
2. Liability for monetary penalty under Section 15A(a) of the SEBI Act, 1992.
3. Quantum of monetary penalty considering factors in Section 15J of the SEBI Act, 1992.
Summary:
Issue 1: Violation of Provisions of Section 11C(2) and 11C(3) of the SEBI Act, 1992 by SFPL
The Securities and Exchange Board of India (SEBI) initiated an investigation based on findings from the Income Tax Department (ITD) regarding manipulation in the share price of Murli Industries Limited (MIL). SEBI issued multiple summonses to Sagar Fintrade Pvt. Ltd. (SFPL) for information related to its investments and connections with dummy companies allegedly involved in the manipulation. Despite repeated summonses dated September 06, 2011, September 22, 2011, October 12, 2011, November 01, 2011, and December 22, 2011, SFPL failed to provide complete and timely information, thus violating Section 11C(2) and 11C(3) of the SEBI Act, 1992. The investigation revealed that SFPL had invested in dummy companies Krishnum and Ramji, but did not furnish detailed bank statements, shareholder information, and rationale for investments as required. The non-cooperation hindered SEBI's investigation process.
Issue 2: Liability for Monetary Penalty under Section 15A(a) of the SEBI Act, 1992
SFPL's failure to comply with SEBI's summonses attracted liability under Section 15A(a) of the SEBI Act, 1992. The Hon'ble Supreme Court in SEBI Vs. Shri Ram Mutual Fund [2006] 68 SCL 216 (SC) held that penalty is attracted as soon as the contravention of the statutory obligation is established, making the intention of the parties irrelevant. Consequently, SFPL was found liable for monetary penalty for its non-compliance.
Issue 3: Quantum of Monetary Penalty Considering Factors in Section 15J of the SEBI Act, 1992
In determining the quantum of penalty, the adjudicating officer considered factors under Section 15J of the SEBI Act, 1992, including the amount of disproportionate gain or unfair advantage, loss caused to investors, and the repetitive nature of the default. Although specific gains or losses were not quantifiable, SFPL's non-cooperation was deemed deliberate and detrimental to the regulatory framework and investor interests. The default was repetitive, as SFPL failed to comply with multiple summonses.
Order:
A penalty of Rs. 5,00,000/- (Rupees Five Lakhs only) was imposed on Lucky Holdings Private Limited (LHPL), which had merged with SFPL, for the violations committed by SFPL. The penalty was to be paid by demand draft within 45 days of the order, directed to SEBI's Investigation Department.
Conclusion:
SFPL, now merged into LHPL, was found to have violated Sections 11C(2) and 11C(3) of the SEBI Act, 1992 by failing to provide necessary information during SEBI's investigation, resulting in a penalty of Rs. 5,00,000/-.
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2013 (2) TMI 832
Jurisdiction - action of issuing summons - petitioner is a foreign national residing in U.K. - petitioner submitted that there is a finding recorded in the order-in-original that the petitioner is not an Indian citizen - Held that: - We find that there is no such finding and there is no such finding is shown to us by the learned counsel. All that is recorded is that the petitioner is having address abroad - at this stage, when only a summons under Section 108 of the Customs Act is issued, no interference is called for in writ jurisdiction under Article 226 of the Constitution of India - petition dismissed - decided against petitioner.
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2013 (2) TMI 831
The High Court of Bombay admitted an appeal regarding the deduction claim under section 80IB(10) of the Income Tax Act for the A.Y. 2006-07. The substantial question of law was whether the Tribunal erred in allowing the deduction when the assessee had completed only 11 out of 20 buildings in a housing project by the specified date.
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2013 (2) TMI 830
Issues Involved:
1. Sanction of the Scheme of Amalgamation.
2. Objection by the Income Tax Department regarding tax evasion.
3. Compliance with statutory requirements and public interest.
Summary:
1. Sanction of the Scheme of Amalgamation:
The petition u/s 391 and 394 of the Companies Act 1956 sought to sanction the Scheme of Amalgamation of Anu Trading Private Limited (transferor Company) with Shinano Retail Private Limited (transferee Company). The Court initially dispensed with the meeting of equity shareholders and unsecured creditors of the transferor Company. Notices were issued to relevant authorities, and the Scheme was published as per Company Court Rules. The Regional Director and Official Liquidator filed affidavits indicating no objections to the Scheme, provided certain conditions were met.
2. Objection by the Income Tax Department regarding tax evasion:
The Income Tax Department intervened, alleging that the transferor Company had not filed Income Tax Returns and that incriminating documents were found during a survey u/s 133A. They argued that the Scheme was designed to evade tax liability. However, the Court noted that tax planning within legal bounds is permissible. The Regional Director and Official Liquidator, after examining the objections, concluded that the Scheme was not framed solely to evade tax. The Court stated that objections related to tax evasion could be addressed in separate proceedings under the IT Act.
3. Compliance with statutory requirements and public interest:
The Court referred to the Supreme Court's guidelines in Miheer H. Mafatlal v. Mafatlal Industries Ltd., emphasizing that the Scheme must comply with statutory procedures, be backed by requisite majority votes, and not violate any laws or public policy. The Scheme was found to be part of a larger group restructuring involving eight companies. The Bombay High Court had already sanctioned the Scheme for the transferee Company, finding it fair and reasonable. The Court imposed conditions to ensure compliance with tax liabilities and public interest, including not disposing of books and papers without permission and continuing pending legal proceedings against the transferee Company.
Conclusion:
The Scheme of Amalgamation was approved with specific conditions to safeguard tax liabilities and public interest. The transferor Company was ordered to pay costs to the Official Liquidator and Regional Director, and the petitioner Company was dissolved without winding up.
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2013 (2) TMI 829
Issues involved: Appeal against order deleting disallowance of deduction u/s 80IC on capital introduced by partners and interest on unsecured loans.
Disallowed Deduction on Capital Introduced by Partners:
The Assessing Officer disallowed deduction u/s 80IC as interest was not charged on capital contribution by partners. The ld. CIT(A) allowed relief based on Tribunal's decision for a previous year. The Tribunal upheld the decision, stating that the absence of interest payment did not lead to increased profits. The Tribunal emphasized the need for a close connection and arrangement resulting in higher profits between the assessee and partners to invoke Section 80IA(10). The Tribunal found no liability for remuneration or interest on capital contribution, thus rejecting the disallowance.
Disallowed Deduction on Interest on Unsecured Loans:
The Assessing Officer disallowed a portion of deduction u/s 80IC due to lower interest on unsecured loans. The ld. CIT(A) ruled in favor of the assessee, stating that interest payment on every unsecured loan is not mandatory and depends on the arrangement between parties. The Tribunal decided against the Revenue, citing the precedent regarding non-charging of interest on partner's capital, as applicable to this issue. Consequently, the appeal of the Revenue was dismissed.
In conclusion, the Tribunal upheld the decisions of the ld. CIT(A) in both issues, dismissing the appeal of the Revenue on 27.2.2013.
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2013 (2) TMI 828
Issues involved: 1. Decree of divorce on the grounds of cruelty and desertion. 2. Restitution of conjugal rights. 3. Mental cruelty caused by false complaints and defamatory allegations. 4. Irretrievable breakdown of marriage. 5. Permanent alimony. Summary:Decree of divorce on the grounds of cruelty and desertion: The appellant-husband sought dissolution of marriage u/s 13(1)(i-a) and (b) of the Hindu Marriage Act, 1955, claiming cruelty and desertion by the respondent-wife. The Family Court granted the decree of divorce, citing mental cruelty caused by the respondent-wife's false complaints and defamatory allegations, including a complaint u/s 498-A of IPC. The High Court, however, set aside the decree, stating that the lodging of a complaint does not constitute cruelty and that the couple did not live together long enough for cruelty to occur. The Supreme Court disagreed, emphasizing that mental cruelty does not require cohabitation and can be inflicted through false and defamatory complaints. Restitution of conjugal rights: The respondent-wife filed a petition u/s 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights, which the Family Court dismissed. The High Court reversed this decision, granting restitution of conjugal rights. The Supreme Court found that the respondent-wife's conduct, including filing multiple legal proceedings and false complaints, amounted to mental cruelty, making restitution of conjugal rights untenable. Mental cruelty caused by false complaints and defamatory allegations: The Supreme Court noted that the respondent-wife's false and defamatory allegations, including a statement that the appellant-husband's mother asked her to sleep with his father, caused significant mental anguish to the appellant-husband. The Court held that such conduct constitutes mental cruelty, justifying the dissolution of marriage. Irretrievable breakdown of marriage: The Supreme Court observed that the couple had been living separately for over ten years, indicating an irretrievable breakdown of the marriage. The Court emphasized that a marriage that is beyond repair due to prolonged separation and bitterness should be dissolved to relieve both parties of pain and anguish. Permanent alimony: Recognizing the respondent-wife's dependence on her parents and her prolonged litigation, the Supreme Court directed the appellant-husband to pay Rs. 15,00,000/- as permanent alimony in three instalments to secure her future. Conclusion: The Supreme Court quashed the High Court's judgment, dissolved the marriage by a decree of divorce, and directed the appellant-husband to pay permanent alimony to the respondent-wife. The Court also highlighted the importance of mediation in matrimonial disputes and issued directions for referring such cases to mediation centres to explore the possibility of settlement.
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2013 (2) TMI 827
Issues involved:
The issue involves seeking a direction to restore the name of a company in the register of the Registrar of Companies u/s 560 of the Companies Act, 1956 after it was struck off voluntarily by the company's directors and members.
Summary:
Issue 1: Application for Restoration
The petitioner filed an application for striking off the name of the company under the 'Simplified Exit Scheme' in 2005, stating it had not been conducting business since 1986. The company was dissolved in 2006 as per the ROC's decision based on the application.
Issue 2: Resolution for Restoration
After six years, the shareholders and directors decided to revive the company and carry on business activities as per the Memorandum of Articles of Association. A resolution was passed in 2012 authorizing the Director to file necessary papers for restoration before the ROC.
Issue 3: Arguments for Restoration
The petitioner's counsel argued that restoring the company's name is crucial to uphold the company's interests and objectives outlined in its Memorandum and Articles of Association.
Issue 4: Objections to Restoration
The Central Government Standing Counsel contended that restoring the name of a non-operational company with no assets or liabilities would serve no purpose. However, they expressed no objection to restoration if certain conditions were met.
Issue 5: Determination for Restoration
The Court considered the provisions of Section 560(6) of the Companies Act, which allow for restoration if the company was carrying on business or if restoration is deemed just. The Court found that the company's voluntary striking off did not prevent restoration within the statutory period.
Issue 6: Conditions for Restoration
The Court ordered the restoration of the company's name in the register, subject to filing required annual returns and balance sheets. The petitioner agreed to comply within four weeks, and costs were imposed on the petitioner for the delay in filing returns.
Conclusion:
The Company Petition was allowed, setting aside the earlier order striking off the company's name and ordering restoration in the register, with specified conditions including payment of costs and filing of necessary documents within a stipulated timeframe.
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2013 (2) TMI 826
Issues Involved:
The judgment involves the cancellation of registration under section 12A of the Income-tax Act, 1961 prior to an amendment brought about in section 12AA(3) on 01.06.2010.
Cancellation of Registration under Section 12A:
The appeal was against the cancellation of registration granted to the respondent under section 12A, which was cancelled by the Director of Income-tax (Exemptions) before the amendment in section 12AA(3) on 01.06.2010. The Tribunal held that the Director did not have the jurisdiction to cancel the registration before the said amendment, as clarified in the case of DIT v. Mool Chand Khairati Ram Trust-339 ITR 622 (Del). The power to cancel registration under section 12AA(3) was limited to registrations granted under clause (b) of sub-section 1 of section 12AA until 01.06.2010. Therefore, the Tribunal's decision to invalidate the cancellation order was upheld, and no other legal questions were raised in the appeal.
Conclusion:
The High Court dismissed the appeal, affirming the Tribunal's decision that the cancellation of registration under section 12A was invalid due to the lack of jurisdiction of the Director of Income-tax (Exemptions) before the relevant amendment in section 12AA(3) on 01.06.2010.
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2013 (2) TMI 825
Trading loss - Application of principles of arbitrariness, unreasonableness and perversity of approach - Held that:- The opinion that the assessee generated a sizeable amount of loss out of pre-arranged transactions so as to reduce the quantum of income liable for tax might have been the view expressed by the AO, but he miserably failed to substantiate that. We are sorry to say that the learned Tribunal fell into the same error. One can generate a loss inter alia by suppressing his income or by selling his goods at an under value.
It is nobody’s case that the assessee either suppressed any income or sold anything at an under value. Therefore, it cannot be said by any stretch of imagination that any loss was generated. Loss might have been suffered. If the loss was suffered, then appropriate deduction has to be made and there is no reason why the Assessing Officer should have refused to do so. Tribunal restored the order of the Assessing Officer and set aside the order passed by the CIT (Appeal) without application of mind. Tribunal ignored the fact that the transaction was carried out at the prevailing price. Therefore, the question of generating loss could not have arisen. The suspicion entertained by the Assessing Officer was misplaced or in any event not substantiated.
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2013 (2) TMI 824
Issues involved: Challenge to circular issued by Central Board of Excise and Customs.
The judgment pertains to a petition seeking to quash a circular issued by the Central Board of Excise and Customs. The circular in question had already been addressed in a previous judgment by a Division Bench of the Bombay High Court. The respondent, the Deputy Commissioner of Central Excise, confirmed a demand against the petitioner in an order dated 30 December 2005. The Revenue claimed that the order was duly served on the petitioner, who received multiple copies on different dates. The petitioner failed to file an appeal within the statutory period as prescribed under Section 35, resulting in the current appeal being time-barred. As a consequence, the court held that no further relief could be granted in the present proceedings and disposed of the petition accordingly.
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9911796707
