Assessment u/s 153A - Whether any incriminating material seized or discovered during the search? - Whether the Tribunal fell into error in disallowing of interest and making addition in completed assessment of the assessee/respondent? - HELD THAT:- CIT(A) and the ITAT in the present case were of the opinion that in the absence of any incriminating material seized in the course of search operations, the AO could not have brought to tax the amounts that were already disclosed and part of the record. The lower appellate authorities relied upon case of Commissioner of Income Tax vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT]. Hence, no question of law arises. Appeal dismissed.
Seeking grant of Bail - petitioner has argued that a drunken brawl in a bar and restaurant has unnecessarily been given a hype by the media, both print and electronic, just because the petitioner happens to be a son of sitting MLA - offences punishable under sections 506, 506B, 326, 141, 143, 144, 146, 147, 341 read with section 149 of IPC - HELD THAT:- The petitioner is the son of a sitting MLA. The station house officer showed no interest in registering the complaint lodged before him at 11.45 p.m. There is also an endorsement made by the station house officer, showing that FIR was registered at 3.30 a.m. on 18.2.2018 in Crime No. 22/2018. There is no explanation as to why the station house officer delayed to register the complaint although it was made at 11.45 p.m. on 17.2.2018. In the meantime one Arun Babu made a complaint against Vidwat and it was registered at 5.30 a.m. on 18.2.2018 in Crime No. 23/2018. Though this complaint was registered at 5.30 a.m., this Arun Babu was taken to Bowring Hospital for treatment and there this Arun Babu would disclose history of assault on him at 12.00 a.m. on 18.2.2018, but by that time Vidwat had already been admitted to Mallya Hospital, Therefore, the incident alleged by Arun Babu cannot be per se believed and as rightly argued by the Special Public Prosecutor, it could be a stage managed complaint at the instance of the petitioner - the very registration of a case at the instance of Arun Babu appears to be due to intervention of a police officer. Inference can be drawn to this effect and therefore unhesitatingly it can be said that from the first hour itself, the petitioner tried to manage the police and definitely it was an act of interference.
It is true that the seizure panchanamas do not disclose seizure of knuckle rings. But in the complaint made by Praveen Venkatachalaiah, there is a reference to employing the rings for hitting. If the I.O. did not seize rings, it cannot be a ground to suspect the prosecution case at this stage. It is well established principle, even the learned counsel for the petitioner argued, that for constituting an offence punishable under section 307 of IPC, a weapon need not always be used - Even if the intention was not there, if the prosecution is able to prove, that the accused had such kind of knowledge of the consequences of their act, the offence punishable under section 307 of IPC would get attracted. The stage is too early to examine the prosecution case in detail. For the purpose of granting bail, the materials placed by the prosecution before the court must be considered. Therefore, non seizure of knuckle rings is of no consequence.
There are prima facie materials to connect the petitioner with non-bailable offences such as section 326 or section 307 of IPC - The CC TV footages show the horrendous atmosphere created when the incident took place and there is no guarantee that such people will remain quiet without tampering with evidence once they come out of jail.
Seeking permission to withdraw the appeal - HELD THAT:- Without going into the ground shown in their affidavit for withdrawal, the Appellant is allowed to withdraw the Appeal, without any liberty to challenge the same very impugned order.
Violation of principles of natural justice - opportunity of hearing not provided - seeking Writ of Certiorari to call for the records on the file of the respondent dated 15.04.2016 for the assessment year 2014-15 - HELD THAT:- Since the mandatory requirement under section 22 (4) of the Tamil Nadu Value Added Tax Act, has not been complied with by the respondent by giving an opportunity of personal hearing to the petitioner, the impugned order is liable to be set side solely on that ground.
The matter is remitted back to the respondent for fresh consideration. The respondent is directed to decide the matter afresh, after giving due opportunity of personal hearing to the petitioner, on merits and in accordance with law - Petition allowed by way of remand.
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- In the facts and circumstances of the case, this Bench is satisfied that the petitioner being a Financial Creditor has a claim against the Corporate Debtor which has remained unpaid. Accordingly, the petition merits consideration and is Admitted.
Reopening of assessment u/s 147 - Addition u/s 68 - notice issued beyond 4 years from the end of the assessment years - HELD THAT:- We are unable to understand when in the reasons so recorded, the A.O. himself is stating that the accommodation entries from the various parties mentioned above, which did not find place in the assessee’s books of account, therefore, he has reasons to believe that the income chargeable tax has escaped assessment. When the entries are not found in the books of the assessee how the same could be made basis for reopening the completed assessment. In our understanding of the law, veracity of the notice u/s. 148 of the Act has to be tested on the basis of the notice itself
The mandate of First proviso to section 147 is that income that has to be taxed must have escaped assessment by reasons of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. There is not even a whisper in the reasons recorded for the reopening of the assessee relating to non disclosure of full and true facts by the assessee - See HARYANA ACRYLIC MANUFACTURING COMPANY [2008 (11) TMI 2 - DELHI HIGH COURT]
Coming back to the reasons recorded for reopening of the assessment as mentioned elsewhere, it can be seen that there is no independent application of mind by the A.O. It appears that the A.O. has borrowed the investigation made by the Investigation Wing under the DIT (Investigation), New Delhi - we have no hesitation to hold that the notice issued u/s. 148 of the Act is without jurisdiction and the same is set aside.
Assessment u/s 153A - Coming to the merits of the case as mentioned elsewhere, there is no dispute that no incriminating material has been found at the time of search and therefore it is now settled proposition of law that no assessment u/s. 153A of the Act can be framed in the absence of any incriminating material found at the time of search. For this proposition, we draw support from the decision of the Hon’ble High Court of Delhi in the case of Kabul Chawla[2015 (9) TMI 80 - DELHI HIGH COURT] - Decided in favour of assessee.
Sanction for prosecution to file a complaint - principles of vicarious liability - it is submitted by the State counsel that the applicant is the nominee of the Company and, therefore, he can be prosecuted even in absence of the Company - Section 66 of the Food and Safety and Standards Act, 2006 - HELD THAT:- It would be clear that Satya Sai Agroils Private Limited is the manufacturer of soya products, however, the Company has not been made an accused and the applicant is being prosecuted in the capacity of nominee of the Company. The applicant cannot be held vicariously liable for offence committed by the Company in absence of prosecution of Company. Therefore, this Court is of the considered view that as the Company which is the manufacturer of soya products, has not been arraigned as an accused, the applicant cannot be held vicariously liable. There is no allegation against the applicant in his personal capacity. Therefore, the prosecution of the applicant, is bad in law.
The Supreme Court of India in 2018 (3) TMI 1946 granted leave and condoned delay in a criminal case, specifying that the impugned judgment will not serve as a precedent. Case tagged with criminal No. 1269/2017 and connected matters.
Recovery during the moratorium period - debit of any amount from Corporate Debtor account during moratorium period - HELD THAT:- The appellant cannot debit any amount from the ‘Corporate Debtor’s account’ after the order of moratorium, as it may amount to recovery amount in spite of the order of moratorium passed by the Adjudicating Authority in violation of Section 14 of the Insolvency and Bankruptcy Code.
Post the matter for further hearing on 26th March, 2018.
Maintainability of prosecution - only argument canvassed by the learned counsel appearing for the writ-applicants that the Court below could not have taken cognizance of the offence under the Act on the police report - HELD THAT:- The issue raised in this writ-application is squarely covered by an order passed by this Court in PATEL DHARMENDRAKUMAR MADHAVLAL & 2 VERSUS STATE OF GUJARAT & 1 [2015 (4) TMI 1326 - GUJARAT HIGH COURT] where it was held that whatever materials have been collected by the Investigating Officer could be used by the authority for the purpose of filing a complaint before the competent court.
There are no hesitation in accepting the submission canvassed by the learned counsel appearing for the writ-applicants having regard to the settled position of law, which has been explained in the referred order - application allowed.
Addition of sale consideration of half portion of the property - whether CIT (A) has erred in confirming the action of the Assessing Officer in adopting the sale consideration of Vi portion of property (sold during the year) on the basis of first agreement of sale? - HELD THAT:- Since no reasons have been specified in the order, the matter is being referred back to the file of the Ld. CIT(A) with directions to pass a speaking order on the issue. Both the Representatives of the parties have also conceded to the proposal of setting aside the matter back to the file of the Ld. CIT(A).
Deduction u/s 54F for investments - benefit of deduction under section 54F for investments made outside India - Scope of amendment - HELD THAT:- We find that in the peculiar facts of the present case the claim of the assessee has to be allowed. It is seen that the amendment by the Finance Act of 2014 in section 54F comes into effect only from 01/04/2015. Thus from the said date the benefit of deduction under section 54F for investments made outside India undisputedly can be denied as it can be said to be limited to the investment in residential house property made only within India.
Prior to the said date when the amendment kicks in, there is no statutory bar for the taxpayer to make investments outside India in residential house property in order to get the benefit of deductions 54F provided other conditions were fulfilled. Thus, since the assessment year under consideration is prior to the amendment of section 54F by the Finance Act, 2014 the law as on date stands that the claim of the assessee has to be allowed. - Decided in favour of assessee.
Reversal of ITC - the assessment are sought to be re-opened and the ITC availed by the dealers are directed to be reversed - mismatch in books - HELD THAT:- The issue involved in these writ petitions is mismatch and such issue is already covered by the decision of this Court in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT]. This Court, in the said decision, has directed the Assessing Officer to evaluate a centralised mechanism exclusively to deal with the cases of mismatch and to do some exercise, before issuing a notice - It was held in the said case that this Court is fully convinced that the procedure adopted by the respondent, Assessing Officers in all these cases are half baked attempts, which have not yielded results and these cases are before this Court or before the Appellate Authorities and all that the Assessing Officers can record is that they have issued show cause notices or passed orders reversing the Input Tax Credit with no appreciable impact on the revenue collection. Matters are remanded to the respective Assessing Officers, to undertake a fresh exercise by conducting a thorough enquiry in consultation with the Assessing Officers of the other end dealer.
Considering the fact that the Assessing Officer has to re-do the assessment, in view of the said decision of this Court, this writ petitions are allowed and the impugned orders are set side. Consequently, the matters are remitted back to the Assessing Officer to re-do the assessment commencing from the stage of issuing notice of proposal, after following guidelines/procedures issued by this Court in the above referred order. The Assessing Officer shall also give personal hearing to the petitioner before finalizing the order of assessment.
Maintainability of petition - Refusal to refund the amount covered by the fixed deposit receipt to the petitioner bank - whether a writ petition is maintainable or not against a co-operative society? - HELD THAT:- A Full Bench of this court has held in John v. Liquidator [2005 (11) TMI 528 - KERALA HIGH COURT] that a writ will lie against a co-operative society where the duty owed by the society is of a public nature or when there is infringement of any statutory provision by the society. The decision of the Full Bench in John's case [2005 (11) TMI 528 - KERALA HIGH COURT] has been confirmed by a Larger Bench of this court in ASSOCIATION OF MILMA OFFICERS VERSUS STATE OF KERALA [2014 (12) TMI 1385 - KERALA HIGH COURT]. There is no pleadings in the writ petitions regarding violation of any statutory provisions by the appellants or breach of any public duty by them. In the absence of such pleadings, we do not think it proper or necessary to enter on a finding on the issue regarding maintainability of writ petition against a co-operative society.
The expression 'dispute' is defined in Section 2(i) of the Act. Section 2(i) reads thus: "dispute" means any matter touching the business, constitution, establishment or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not. A bare perusal of this definition would show that a claim in respect of any sum payable to or by a society is dispute whether the claim is admitted or not.
The discretionary jurisdiction under Article 226 of the Constitution is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. If alternative statutory remedies are available, a writ petition under Article 226 of the Constitution shall not be entertained. This is the normal rule. But, there are exceptions to this rule. Where the statutory authority has not acted in accordance with the provisions of the enactment in question, the writ jurisdiction of the Court shall be exercised. Where the statutory authority acts in defiance of the fundamental principles of judicial procedure or when it acts in total violation of the principles of natural justice, the High Court will entertain a petition under Article 226 of the Constitution. Where statutory remedies are entirely ill -suited to meet the demands of extraordinary situations, then also the High Court would be justified in invoking the writ jurisdiction.
In the instant cases, the writ petitions do not satisfy any of the conditions for invoking the jurisdiction of the Court under Article 226 of the Constitution. The pleadings in the writ petitions contain no statement that the grievances fall within any of the well-defined exceptions. The writ petitioners have no case that the appellants have violated any statutory provisions or that they have not acted in accordance with the provisions of the statute or that they have acted in total violation of the principles of natural justice.
Application for condonation of delay in filing application - defective appeal was preferred by the Appellant after delay of more than six months on 22nd September, 2017 without any application for condonation of delay - HELD THAT:- It is found that the Appellant has not explained as to what action the Appellant had taken between 15th March, 2017 and 18th August, 2017 i.e. between the day of judgment and the day the application for certified copy was filed.
As per Section 421 of the Companies Act, 2013, if an appeal is preferred under Section 421 of the Companies Act, 2013, the Appellate Tribunal counts the period of limitation from the date on which a copy of the order is made available by the Tribunal in terms of sub-section (3) of Section 421 of the Companies Act, 2013 - the appeal is required to be filed within thirty-days, means within thirty-days from the date of knowledge of the order against which appeal is preferred.
In the present case, as Appellant had knowledge of the impugned order as on the date of pronouncement of the said order i.e. 15th March, 2017. It is not the case of the Appellant that its Lawyer has not informed Company Appeal (AT) (Insolvency) No. 223 of 2017 of the order passed by the Adjudicating Authority - application for condonation of delay being not satisfactory, it is fit to be rejected.
Revision u/s 263 by CIT - assessment order passed under section 143(3) r.w.s. 153C - Assessment u/s 153A of the Act after obtaining approval of Additional CIT under section 153D - HELD THAT:- The assessment in the present case has been completed by the Assessing Officer by passing order under section 143(3) r.w.s. 153C of the Act after taking the approval of JCIT, Central Range, Nashik and following the ratio laid down in Rasiklal M. Dhariwal (HUF) Vs. CIT [2016 (12) TMI 1868 - ITAT PUNE] we hold that exercise of revisionary powers by the Commissioner is both incorrect and invalid in law. The grounds of appeal raised by assessee are thus, allowed.
Revision u/s 263 by CIT - Wrongful allowance of deduction u/s 80IB - assessee has neither produced certificate from competent authority nor has submitted the audit report in form 10CCB - HELD THAT:- Insofar as the non submission of the audit report is concerned, as in the case of Medicaps Ltd.[2010 (1) TMI 261 - MADHYA PRADESH HIGH COURT] has upheld the findings of the Tribunal which held that the audit report is procedural and directory in nature and the same can be filed at the appellate stage. It is a fact that the audit report was made available to the ld. CIT during the proceedings u/s. 263 of the Act.
In the case of Kewal Kiran Clothing Pvt. Ltd. [2015 (4) TMI 1323 - ITAT MUMBAI] had the occasion to consider an identical issue wherein the claim of deduction u/s. 80IB of the Act was for the tenth year and held that since the assessee has filed the audit report before the ld. CIT, no adverse inference should be drawn in proceedings u/s. 263 of the Act.
Claim of deduction u/s. 80IB of the Act is for the tenth year which means that the A.O. had allowed the claim of deduction in previous nine years. Therefore, we have no hesitation to hold that the assumption of jurisdiction u/s. 263 of the Act is bad in law.
Allegation that the assessee is not registered as an SSI Unit is concerned, we find that u/s. 80IB (14) clause G, there is no such requirement. Therefore, it cannot be said that the assessment order is erroneous and prejudicial to the interest of the revenue to this extent also.
Interest on I.T. refund - we find that the assessee has furnished the copy of interest account before the ld. CIT showing that the assessee has already credited the interest amount to interest account. Therefore, there is no question of any under assessment.
We set aside the order of the ld. CIT and restore that of the A.O. framed u/s. 143(3) - Decided in favour of assessee.
Search and seizure - validity of unearthing acquisition of assets disproportionate to his known source of income and collecting documents - petitioner was taken to ACB Headquarters without furnishing him grounds of arrest and sans recording reasons - offence under Sections 7, 8, 9, 10, 12, 13(1)(a)(c) (d) read with 13(2) and 14 of the P.C. Act - violation of principles of natural justice - HELD THAT:- The case in hand involves a senior bureaucrat of the State and therefore the learned counsel espousing his cause has endeavoured to articulate his submissions with full gusto and rhetorics. Likewise, State too has locked the horns with full vehemence to defend its impugned actions. However, concern of the Court is to examine legality and propriety of the impugned proceedings on the touchstone of inherent powers of this Court uninfluenced by the status of an individual. In our democratic polity, where rule of law prevails, no individual, howsoever highly placed he may be, can claim immunity much less absolute immunity from the law and every individual citizen is always under law - If the facts and circumstances of the case leading to prosecution of the petitioner for various offences under the P.C. Act are meticulously scrutinized, then it would ipso facto reveal that the concern of the ACB was to unearth alleged large scale corruption in Mines Department upon receipt of information by an Inspector of the Department in this behalf.
When an information discloses commission of cognizable offence, registration of FIR is mandatory and it is only in exceptional cases for limited purpose preliminary inquiry can be conducted by the police/investigating agency - Undeniably, the information received by the Inspector of ACB in the matter purportedly unearthed large scale corruption in Mines Department showing involvement of many officials of department and a senior officer of administration, per se delay 2-3 days cannot be categorized as abnormal.
Viewed from any angle, the material available on record, if objectively scrutinized at this juncture, when after completion of investigation charge-sheet in the matter has been filed, while taking note of the submissions made on behalf of petitioner, I am unable to subscribe the view that inherent power is to be exercised in the matter to give effect to any order passed under the Code; or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice - no case of misuse of process of law to harass him is made out.
Agreement for Supply of Coal - Non-execution of Fuel Supply Agreement (FSA) - direction to CIL to supply coal to the writ petitioner of the requisite grade - LOA issued to the petitioner as GCPP cannot be transferred only by reason of the fact that it stands converted to an IPP - HELD THAT:- The only logic/rationale supplied in support of its decision both by SLC (LT) and the competent authority, is that, the petitioner had bypassed the queue of IPPs, who were awaiting recommendations for issuance of LOA in their favour. According to both authorities this had resulted in the petitioner acquiring tangible and intangible benefits of an LOA holder even though it never functioned as a GCPP. The switch over, according to both UOI and CIL, was made only to fast track its fuel supply.
The learned ASG in rejoinder had sought to buttress her case by seeking to place reliance on letter dated 6.10.2014 addressed by UOI to the petitioner. According to me, the submission made based on contents of letter dated 6.10.2014 is, prima facie, not sustainable for the reason that at the given point in time when UOI indicated to the petitioner that even though its category had changed, an FSA could not be executed in its favour since its name was not included in the list of 78000 MW coal based thermal power plants, subsequently underwent a change; a fact which is discernable upon perusal of CEA communication dated 3.12.2015. The communication dated 6.10.2014 was based on an earlier decision of CEA of 21.6.2013. This position stood altered, which was, as indicated above, clarified by CEA on 3.12.2015. CEA, to put it pithily, clarified that the petitioner, amongst others, was covered in balance 30000 MW capacity.
Also, the learned senior counsel appearing for CIL had alluded to the fact that the petitioner could have access to coal via the Special Forward e-Auction mechanism. In this behalf, learned counsel drew my attention to status report filed on behalf of CIL. A perusal of the status report would show that CIL had offered to supply coal to the petitioner pursuant to order dated 31.01.2018 at the notified price stipulated for the power sector, with an added premium pegged at the rate of 50.74%. Clearly, the attempt of CIL was to render the direction issued by this Court inefficacious.
Since, the petitioner, prima facie, fulfils the conditions for execution of an FSA in its favour, the direction to issue coal could only be at the notified price subject to other standard and usual conditions being fulfilled by it - the interlocutory application and the review application for vacation and/ or recall of order are dismissed.
TDS u/s 194LA -amount deducted by the Special Land Acquisition Officer from the compensation amount shown in the award prepared by the Special Land Acquisition Officer - petition is filed under Articles 226 and 227 of the Constitution of India for giving direction to the respondents to release 10 per cent amount deducted from the compensation amount awarded to the petitioners under the provisions of the Land Acquisition Act by the Special Land Acquisition Office and this amount is deducted as income tax deducted at source - HELD THAT:- Admittedly agricultural land was acquired and the relevant record in that regard is produced. The learned counsel for the Income Tax Department submitted that such amount is not received by it and in view of that circumstance the other possible defences available to the Income Tax Department need not be considered in the present matter - Income Tax Department has placed reliance on the observations made by the Apex Court in the Dr. Sham Lal Narula [1964 (4) TMI 10 - SUPREME COURT] and he submitted that at least on the interest amount income tax is deductable.
As the income tax was not credited in the account of the Income Tax Department as per the submissions made and as there is new provision showing that on the awarded amount no tax is payable, this Court holds that direction needs to be given to respondent Nos.1 and 2 to refund the amount as they have allowed deduction of 10% amount from the total compensation amount which was payable to the petitioners. Under the Land Acquisition Act the petitioners are entitled to get 15% interest on the compensation amount and in view of the aforesaid circumstances this Court holds that the respondents need to be made liable to pay interest at the rate of 15% per annum on the amount which is wrongly deducted by them from the compensation amount which was payable to the petitioners.
Writ petition is allowed. The amount deducted by the Special Land Acquisition Officer from the compensation amount shown in the award prepared by the Special Land Acquisition Officer as income tax is directed to be returned by the respondent Nos.1 and 2 to the petitioners with interest at the rate of 15 per cent per annum and the interest will be chargeable from the date of deduction i.e. 20-7-2010 till the date of realisation. The amount is to be returned within three months from the date of this order. Liberty to the State to go against Income Tax Department if the state has paid the amount to Income Tax Department for recovery of the amount which the State is required to pay under this order.
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