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Showing 101 to 120 of 782 Records
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2012 (4) TMI 743
Disallowance u/s 40(a)(i) for payments made to CRO’s - HELD THAT:- The Hon’ble Bombay High Court in the case of CAT Vs. Kotak Securities ltd.,[2011 (10) TMI 24 - BOMBAY HIGH COURT] held that transaction charges paid by the assessee to the stock exchange constituted fee for technical services covered U/s. 194 (J). It further held that from the year 1995 to the year 2005, the assessee as well as the revenue, proceeded on the footing that the assessee is not liable to deduct tax at source and hence no fault can be found with the assessee for not deducting tax at source, as it was under a bonafide belief that no tax need be deducted at source on this payment.
In the case on hand, the assessee paid charges for testing at laboratories of CRO which used their own skills and equipments etc., to prepare the report. The Tribunal came to conclusion that there is no parting of skills or know-how by CRO and hence the service is not technical in nature, but was only a commercial service. Consisting with the view taken therein, we up-hold the finding of the first appellate authority and dismissed this ground of revenue. In the result the appeal of the revenue is allowed in part.
Thus, the appeal of the assesse is dismissed and that of revenue is allowed in part.
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2012 (4) TMI 742
Issues Involved:
1. Deletion of addition of estimated Gross Profit (G.P.)
2. Deletion of addition of unrecorded sales
Summary:
Issue 1: Deletion of Addition of Estimated Gross Profit (G.P.)
The Revenue challenged the CIT(A)'s order deleting the addition of estimated G.P. made by the A.O. amounting to Rs. 5,96,409/-. The A.O. noted discrepancies in electricity consumption and yield percentage compared to the previous year, leading to the rejection of the book results and estimation of G.P. at 14.52%. The assessee argued that the lower yield and higher power consumption were due to the use of inferior quality raw material. The CIT(A) accepted this explanation, supported by a remand report from the A.O., which confirmed the use of low-quality raw material. The Tribunal upheld the CIT(A)'s decision, finding no evidence of suppressed G.P. and no defects in the audited books of accounts.
Issue 2: Deletion of Addition of Unrecorded Sales
The Revenue also contested the deletion of the addition of unrecorded sales amounting to Rs. 9,85,800/-. The A.O. had determined this figure based on the suppression of yield percentage. The assessee maintained that all sales were properly recorded and supported by bills and vouchers. The CIT(A) found no direct evidence of unrecorded sales and noted that the A.O.'s estimation was based on assumptions rather than concrete evidence. The Tribunal agreed with the CIT(A), noting the absence of any material suggesting unaccounted sales and upheld the deletion of the addition.
Conclusion:
The Tribunal dismissed the appeal filed by the Revenue, upholding the CIT(A)'s order deleting the additions of estimated G.P. and unrecorded sales. The decision was based on the remand report confirming the use of inferior quality raw material and the lack of evidence supporting the A.O.'s assumptions.
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2012 (4) TMI 741
Issues involved: Appeal against deletion of addition in net profit and direction to accept income declared by assessee.
Summary:
Issue 1: Deletion of addition in net profit
The appellant, the revenue, challenged the order deleting the addition in net profit and directing the Assessing Officer to accept the income declared by the assessee. The assessee, engaged in the sale of Indian made foreign liquor and beer, showed sales and net profit in the financial year. The Assessing Officer questioned the low net profit rate shown by the assessee and applied a higher rate on estimated sales. However, the Commissioner of Income tax (Appeals) held that the Assessing Officer was unjustified in rejecting the books of accounts and deleted the addition. The Tribunal, considering the facts and submissions, found that the business was controlled by excise rules, maintained proper accounts, and there was no discrepancy in stock or quantitative details. Therefore, the net profit rate of 1.77% was deemed reasonable, and the provisions of section 145(3) were not applicable. The Tribunal directed the Assessing Officer to compute business income using the 1.77% net profit rate on the disclosed turnover of the assessee.
Issue 2: Interest income
The Tribunal clarified that interest income should be separately added as income from other sources, unrelated to the liquor business of the assessee.
In conclusion, the appeal of the revenue was partly allowed, modifying the order of the Commissioner of Income tax (Appeals) to adopt the net profit rate of 1.43%. The decision was pronounced in the open Court in the presence of representatives from both sides.
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2012 (4) TMI 740
Issues involved: Petition for quashing reassessment order u/s 30.8.2002 and revision dismissal order u/s 18.6.2004 regarding commercial tax exemption under Madhya Pradesh Commercial Tax Act, 1994.
Relevant details:
- The petitioner, a steel company, sold goods to a purchasing dealer who sought exemption from commercial tax under the Act 1994.
- The State Government exempted certain registered dealers from tax payment based on specific conditions.
- The purchasing dealer provided a declaration for exemption, and the petitioner did not charge tax accordingly.
- The impugned orders imposed tax liability on the petitioner for not charging tax from the purchasing dealer, alleging ineligibility or violation of declaration conditions.
- The High Court noted that the petitioner was not obligated to investigate the validity of the declaration submitted by the purchasing dealer.
- A previous Division Bench order had quashed similar liability-imposing orders on the petitioner, citing section 21 of the Act 1994.
- The current judgment quashes the challenged orders but clarifies that the purchasing dealer remains liable if required by law.
In conclusion, the petition is allowed.
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2012 (4) TMI 739
The appellate tribunal CESTAT Mumbai dismissed a stay petition due to non-prosecution by the applicant. The applicants were directed to deposit the dues as per the adjudication order within four weeks and report compliance by a specified date.
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2012 (4) TMI 738
Issues Involved:
1. Whether the O.A. No. 1058/2004, filed by the petitioner before the Tribunal, Additional Bench Allahabad has rightly been dismissed by the Tribunal by its judgment and order dated 10.2.2006 as barred by time.
2. Whether the petitioner was entitled for restoration of his posting as Inspector Income Tax in Maharashtra Region w.e.f. his joining in the Department and was entitled for promotion as Income Tax Officer retrospectively.
3. Whether the petitioner was entitled to add his earlier period of working as Income Tax Inspector before his joining at Kanpur for the purposes of seniority and other benefits.
4. Whether the petitioner was entitled to be placed above all the Income Tax Inspectors (Direct Recruits) who were not working in the Department at the time of his joining i.e. 10.1.1992 in Kanpur and the order dated 19.11.2003 of the Chairman, CBDT refusing the above prayer was erroneous.
5. Whether the gradation list as earlier finalised on 1.9.1999, was revised and changed w.e.f. 1.1.2002, after due circulation inviting objections from the affected persons including the petitioner.
6. What is the criteria or the basis for reckoning the seniority by direct recruits Income Tax Inspectors and inter-charge transferee.
7. Whether the petitioner can claim that the respondents were obliged to revise the seniority list of direct recruits Income Tax Inspectors existing w.e.f. 1.1.2002, after the judgment of the Gujarat High Court in N.R. Parmar's case and the order of the Apex Court dated 20.3.2006.
8. Whether the inter-se seniority of Income Tax Inspectors of West Zone cannot be revised due to:
(i) Pendency of Special Leave Petition against the judgment of the Gujarat High Court in Union of India v. N.R. Parmar, dated 17.8.2004.
(ii) Order of the Supreme Court passed in SLP No. 22000-22009, Anil Kumar Sehgal and others v. Smt Anita Vinayak and others, dated 7.9.2009, directing the parties to maintain status quo regarding seniority.
(iii) Order of Government of India dated 22.2.2006, with reference to Special Leave Petition filed by the Department against the judgment of the Gujarat High Court in N.R. Parmar's case.
9. Whether the Tribunal while considering the three applications filed for recall/modification of the order dated 4.8.2010, passed in O.A. No. 1084/2010, was justified in dismissing the aforesaid O.A. itself while allowing the above three applications and recalling the order dated 4.8.2010.
10. To what relief, if any, the petitioner is entitled in both the writ petitions.
Summary:
Issue 1:
The Tribunal erred in dismissing O.A. No. 1058/2004 as barred by time. The representation dated 10.6.2002 was decided by the Chairman, CBDT on 19.11.2003, and the application was filed within the limitation period prescribed u/s 21 of the Act, 1985. The Tribunal did not consider the statutory provisions of Sections 20 and 21 of the Act, 1985.
Issue 2 and 3:
The petitioner, having accepted his transfer order dated 10.12.1991 and joined at Kanpur, cannot now claim benefits of his earlier services. The Board's order dated 14.5.1990 governs such transfers and the petitioner's request for restoration of his posting in Maharashtra and retrospective promotion cannot be considered after more than a decade.
Issue 4:
The petitioner's claim to be placed above all Inspectors not working in the Department at the time of his joining (10.1.1992) was rejected by the Chairman, CBDT, and this rejection was found to be erroneous and unsustainable.
Issue 5:
The gradation list dated 1.9.1999 was revised on or before 10.4.2002 without circulation or inviting objections from affected persons, including the petitioner. The revised seniority list was given effect to before 10.4.2002, making the alleged circulation on 21.8.2002 meaningless.
Issue 6 and 7:
The seniority of direct recruits should be reckoned from the date they are available for appointment, not from the date of sending requisition or selection. The judgment of the Gujarat High Court in N.R. Parmar's case is relevant for determining the inter-se seniority between direct recruits and inter-charge transferee.
Issue 8:
The inter-se seniority of Income Tax Inspectors of West Zone can be revised despite the pending Special Leave Petition and the order of status quo by the Supreme Court, as these do not prohibit the redetermination of seniority.
Issue 9:
The Tribunal should have recalled the order dated 4.8.2010 and ordered a fresh hearing of O.A. No. 1084/2010 instead of dismissing it on merits. The recall of the order dated 4.8.2010 was justified, but the dismissal of the O.A. on merits is unsustainable.
Issue 10:
The order of the Tribunal dated 10.2.2006 is set aside. The seniority list of Income Tax Inspectors as on 1.1.2002 is set aside. The respondent Nos. 3 and 4 are directed to redetermine the seniority of Income Tax Inspectors afresh, circulating a tentative seniority list and inviting objections. The O.A. No. 1084/2010 is disposed of as infructuous.
Reliefs Granted:
1. The order of the Tribunal dated 10.2.2006 is set aside.
2. The order of the Chairman, CBDT dated 19.11.2003 is partly set aside.
3. The seniority list as on 1.1.2002 is set aside.
4. The respondent Nos. 3 and 4 are directed to redetermine the seniority afresh within four months.
5. The order of the Tribunal dated 27.8.2010 is partly set aside, and O.A. No. 1084/2010 is disposed of as infructuous.
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2012 (4) TMI 737
Issues involved: Challenge to order allowing Arbitration Petition due to award made after agreement period expired.
Summary:
The appeal challenged the order allowing the Arbitration Petition based on the award being made after the agreement period expired. The agreement between the parties stipulated that the award should be made within six months, extendable by four months. The arbitrator made the award after the extended period had lapsed. The respondent filed an Arbitration Petition assailing the award on various grounds, including the expiration of the agreement period. The learned single Judge set aside the award based on this ground, citing the case law and the Arbitration and Conciliation Act. The appellant argued waiver by the respondent due to continued participation post-expiration. The Court analyzed the conduct of the parties and found that the respondent had waived the time limit stipulated in the agreement and the objection to the arbitrator's jurisdiction. The appeal was allowed, setting aside the single Judge's order and remanding the matter for consideration on merits.
The Court noted that the respondent's conduct, including making submissions and filing written statements after the agreement period had lapsed, indicated a waiver of the time limit stipulated in the agreement. The respondent did not raise a clear objection to the arbitrator's jurisdiction based on the time limit, further indicating waiver. The Court emphasized that the conduct of the parties, along with the absence of a specific challenge in the Arbitration Petition, supported the conclusion of waiver. The Court decided not to entertain arguments on the merits of the case at this stage, remanding the matter for further consideration based on the conduct and waiver issues identified.
In conclusion, the Court disagreed with the single Judge's automatic allowance of the Arbitration Petition solely based on the expired agreement period for the award. The Court found that the respondent's conduct implied waiver of the time limit and jurisdiction objection, leading to the appeal being allowed. The matter was remanded for consideration on merits, without expressing any opinion on the substantive aspects of the case presented in the Arbitration Petition.
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2012 (4) TMI 736
Issues Involved:
The judgment involves dispensation of meetings for equity shareholders, preference shareholder, and secured creditors, along with convening a meeting for unsecured creditors to consider a Scheme of Arrangement for amalgamation.
Equity Shareholders Meeting:
The meeting of the equity shareholders is dispensed with based on the affidavit filed by the authorised signatory and the consent of the equity shareholders, along with the certificate from the auditors of the company.
Preference Shareholder Meeting:
The meeting of the preference shareholder is dispensed with, considering the affidavit filed by the authorised signatory, the certificate from the auditors, and the consent of the preference shareholder.
Secured Creditors Meeting:
The meeting of the secured creditors is dispensed with as the company has no secured creditors, certified by the auditors of the company.
Unsecured Creditors Meeting:
A meeting for unsecured creditors is to be convened to consider the Scheme of Arrangement for amalgamation. The meeting details and notification requirements are specified, including the appointment of a Chairman and the quorum for the meeting.
Provisions for Unsecured Creditors Meeting:
The notice for the meeting, along with necessary documents, is to be sent to unsecured creditors meeting specific criteria. Voting by proxy is permitted, and the value of each unsecured creditor will be determined for the meeting.
Reporting and Compliance:
The Chairman of the meeting is required to report the meeting's result to the Court within a specified timeframe, verified by an affidavit.
Transferee Company Application:
The Transferee Company is not required to file a separate application for obtaining sanction to the present Scheme, based on the submitted affidavits and considerations.
The Company Application is disposed of in accordance with the provided directions, with no order as to costs.
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2012 (4) TMI 735
Issues Involved:
1. Permanent injunction for restraining infringement of trademarks.
2. Passing off, dilution of goodwill, and unfair competition.
3. Rendition of accounts of profits/damages.
4. Delivery up against the defendant.
Summary:
Issue 1: Permanent Injunction for Restraining Infringement of Trademarks
The plaintiff filed a suit for permanent injunction to restrain the defendant from using the trademark "MBD" in relation to its school activities. The court issued summons and notice to the defendants on 24.12.2010 and restrained the defendant on 04.05.2011 from using the trademark "MBD" with clarification that the defendant could use the full name "Mata Basanti Devi" School. The defendant was proceeded ex parte as no appearance or written statement was filed.
Issue 2: Passing Off, Dilution of Goodwill, and Unfair Competition
The plaintiff provided extensive evidence through affidavits and documents demonstrating the long-standing and exclusive use of the "MBD" trademark since 1956. The plaintiff's group, known as the "MBD Group," has a significant presence in the publishing, hospitality, real estate, and online education sectors, with the "MBD" mark being a well-known identifier of their goods and services. The court found that the defendant's use of the "MBD" mark constituted infringement, passing off, and dilution of the plaintiff's goodwill, and was done with mala fide intentions to benefit from the plaintiff's established reputation.
Issue 3: Rendition of Accounts of Profits/Damages
The plaintiff sought damages for loss of reputation and business. The court noted that the defendant deliberately stayed away from proceedings, preventing an enquiry into the accounts for determination of damages. The court awarded damages of Rs. 5 lakhs based on the evidence provided by the plaintiff and referenced previous judgments supporting compensatory and punitive damages for trademark infringement.
Issue 4: Delivery Up Against the Defendant
The court confirmed the interim orders and decreed the suit in favor of the plaintiff, granting the reliefs sought in terms of para 33 (i), (ii), (iii) & (v) of the plaint, including costs and damages. The court ordered the defendant to cease using the "MBD" mark and awarded Rs. 5 lakhs in damages to the plaintiff.
Conclusion:
The court ruled in favor of the plaintiff, confirming the interim injunction, and awarded damages of Rs. 5 lakhs for trademark infringement, passing off, and unfair competition by the defendant. The defendant was ordered to cease using the "MBD" mark and to bear the costs of the proceedings.
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2012 (4) TMI 734
The High Court of Bombay disposed of Suit No.1937 of 2008 and Company Appeal Nos.40 of 2011, 41 of 2011, and 42 of 2011 by referring the dispute between the parties to a Mediator/Arbitrator based on an Agreement dated 16th April 2012. The Agreement was marked 'X' for identification.
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2012 (4) TMI 733
Issues involved: Delay in disposal of appeal, amendments sought by appellants before Company Law Board, justification for allowing/disallowing amendments, legal principles regarding grant of amendments to pleadings, consideration of real controversies between parties, question of delay in seeking amendments.
Delay in disposal of appeal: The appellants had to wait for about four years for disposal of the appeal, causing them to suffer as their main grievance before the Company Law Board could not be redressed.
Amendments sought by appellants: The appeal arose out of the amendments sought by the appellants to their petition before the Company Law Board. The Board initially passed an order allowing some amendments and disallowing others. The amendments sought were related to various paragraphs of the original petition, with the effect of the amendments described in a table presented to the Court.
Justification for allowing/disallowing amendments: In the impugned order, the increase in capital was allowed, but the increase in paid-up capital was disallowed. The Court found justification for allowing the amendments that were permitted but did not find any justification for disallowing the others. The Court opined that all the amendments should have been allowed as they did not change the case or cause prejudice to the respondents.
Legal principles regarding grant of amendments to pleadings: The Court referred to legal judgments emphasizing that a liberal approach should be taken in granting amendments, as long as no new case is introduced or any claim is barred by limitation. The amendments should aim to appreciate the real controversies between the parties to ensure justice.
Question of delay in seeking amendments: The Court was satisfied with the submissions made by the appellants regarding the delay in seeking the amendments, as the knowledge of the subject matter of the amendments was gained after the filing of the original petition.
Decision: The appeal succeeded, and the impugned order of the Company Law Board was partly set aside. The order allowing some amendments was reinstated, and the amendments made in accordance with that order were affirmed. Any stay application was disposed of accordingly.
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2012 (4) TMI 732
Issues involved:
- Violation of regulation 4 of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 (FUTP Regulation)
- Compliance with Rule 4(1) and 4(3) of Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995
- Delay in finalizing the proceedings
- Merits of the case regarding market manipulation
Violation of FUTP Regulation:
The appellant, a proprietor engaged in trading, was found guilty of market manipulation in the scrip of a company, involving a sharp increase in price and volume over a short period. The adjudicating officer imposed a penalty of 3 lacs under section 15HA of the Securities and Exchange Board of India Act, 1992.
Compliance with Rule 4(1) and 4(3):
The appellant raised an objection regarding the show cause notice combining Rule 4(1) and 4(3) requirements. The Tribunal found that the notice provided sufficient opportunity for defense, with multiple correspondences and hearings, thus complying with the rules.
Delay in Finalizing Proceedings:
Although the proceedings took several years, constant correspondence and hearings were conducted, ensuring no prejudice to the appellant. The delay did not impact the outcome of the case, thus not justifying a challenge.
Merits of the Case - Market Manipulation:
The appellant argued that the volume of manipulative transactions was negligible compared to total trades and had no market impact. However, the adjudicating officer presented evidence of synchronized/reversal trades with specific counterparties, creating artificial volumes to influence the market. The Tribunal upheld the penalty, considering the deliberate market manipulation.
Conclusion:
The Tribunal upheld the penalty imposed on the appellant for market manipulation, finding sufficient evidence to support the violation of FUTP Regulations. The delay in proceedings did not prejudice the appellant, and the compliance with procedural rules was deemed satisfactory. The appeal was dismissed, with no costs awarded.
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2012 (4) TMI 731
Issues Involved:
1. Disallowance u/s 14A of the Income Tax Act, 1961.
2. Deduction u/s 80IA of the Income Tax Act, 1961.
3. Disallowance of expenditure on maintenance of garden.
4. Treatment of expenses on shelved projects and feasibility studies.
5. Interest u/s 244A of the Income Tax Act, 1961.
Summary:
1. Disallowance u/s 14A of the Income Tax Act, 1961:
The assessee's appeal contested the disallowance made by the AO u/s 14A for expenses incurred in earning exempt income. The AO disallowed 5% of the exempt income, adding Rs. 1,85,26,581/- to the assessee's total income. The CIT(A) had directed the AO to apply Rule 8D. The Tribunal, following the Bombay High Court's decision in Godrej & Boyce, remanded the issue back to the AO for fresh consideration.
2. Deduction u/s 80IA of the Income Tax Act, 1961:
The assessee sought relief for "other income" and "net adjustments in respect of earlier years" for Trombay Unit 7 under section 80IA. The CIT(A) partially allowed relief. The Tribunal accepted the assessee's plea for treating returned materials as income derived by the eligible unit and allowed deduction u/s 80IA.
3. Disallowance of expenditure on maintenance of garden:
The revenue's appeal against the CIT(A)'s decision to allow expenditure on garden maintenance was dismissed. The Tribunal upheld the CIT(A)'s order, referencing its previous decision that such expenditure is incurred wholly, necessarily, and exclusively for business purposes.
4. Treatment of expenses on shelved projects and feasibility studies:
The revenue's appeal against the CIT(A)'s decision to allow expenses on shelved projects and feasibility studies as revenue expenditure was dismissed. The Tribunal, referencing its earlier decisions, held that these expenses were connected with the existing business and should be allowed as deductions.
5. Interest u/s 244A of the Income Tax Act, 1961:
The revenue's appeal against the CIT(A)'s direction to allow interest u/s 244A from April 2002 to February 2005 was dismissed. The Tribunal found that the AO did not seek the opinion of the Chief Commissioner to exclude any period for interest calculation, and there was no delay attributable to the assessee.
Conclusion:
The assessee's appeal was partly allowed, and the revenue's appeal was dismissed. The Tribunal remanded the issue of disallowance u/s 14A to the AO for fresh consideration and upheld the CIT(A)'s decisions on other issues.
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2012 (4) TMI 730
Issues Involved:
1. Delegation of powers u/s 4 of the Delhi Entertainment and Betting Tax Act, 1996.
2. Definition and applicability of "payment for admission" u/s 2(m) and Section 6(6) of the Act.
3. Exemption from entertainment tax u/s 14 of the Act.
Summary:
Delegation of Powers u/s 4:
The petitioner argued that the power to levy entertainment tax cannot be delegated by the government to any subordinate authority, thus making the assessment orders by the Additional Entertainment Tax Officer (AETO) invalid. The court clarified the distinction between the levy or charge of tax and its quantification, noting that the charge of tax is created by the statutory provision itself and does not require a separate order. The AETO was merely quantifying the tax, which is permissible under the Act. Hence, the contention was rejected.
Definition and Applicability of "Payment for Admission" u/s 2(m) and Section 6(6):
The petitioner contended that the sponsorship amounts should not be considered as "payment for admission" within the meaning of the Act. The AETO had not examined the terms of the sponsorship agreements but relied on the inclusive definition of "payment for admission" in Section 2(m). The court held that the AETO should have examined the sponsorship agreements to ascertain the true nature of the payments. Consequently, the assessment orders were quashed, and the AETO was directed to re-examine the facts and agreements before passing fresh orders.
Exemption from Entertainment Tax u/s 14:
The petitioner sought 100% exemption from entertainment tax, which was reduced to 50% by the Government of NCT of Delhi. The court noted that the power to grant exemption is discretionary and based on multiple criteria. The government had considered the petitioner's submissions and financial health before deciding to grant only 50% exemption. The court found no irregularity or irrationality in the government's decision-making process and upheld the order granting 50% exemption.
Conclusion:
The court quashed the assessment orders by the AETO and directed a re-examination of the sponsorship agreements. However, it upheld the government's decision to grant only 50% exemption from entertainment tax, finding no grounds for interference. The writ petitions challenging the assessment orders were allowed to the extent indicated, while those challenging the exemption orders were dismissed.
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2012 (4) TMI 729
The case was transferred from the District & Sessions Court to the Senior Civil Judge & CJM in Chikkaballapura for disposal according to the law. Signed by the Principal District & Sessions Judge in Chikkaballapura. (Citation: 2012 (4) TMI 729)
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2012 (4) TMI 728
Dishonor of Cheque - Section 138 of the NI Act - fraudulent and dishonest intention - double jeopardy or bar of Section 300(1) of Cr.P.C. - conflicting situations - the respondent no. 2 filed an FIR u/s 406/420 r/w Section 114 of IPC, for committing the offence of criminal breach of trust, cheating and abetment etc. In the criminal case filed u/s 138 of N.I. Act, the trial court convicted the appellant. Aggrieved, appellant preferred Appeal, before the District Judge wherein, he has been acquitted. Against the order of acquittal, respondent no. 2 has preferred Criminal Appeal before the High Court of Gujarat which is still pending consideration. Appellant filed an application u/s 482 Cr.P.C., seeking quashing and Criminal Case, pending before the CJM, on the grounds, inter-alia, that it amounts to abuse of process of law. The appellant stood acquitted in criminal case u/s 138 of N.I. Act. Thus, he cannot be tried again for the same offence. In the facts of the case, doctrine of double jeopardy is attracted. The High Court dismissed the said application. Hence, this appeal.
HELD THAT:- the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved u/s 406/420 r/w Section 114 IPC. In the prosecution u/s 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable u/s 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.
the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.
There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.
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2012 (4) TMI 727
Annual Letting Value of the properties u/s.23 - Held that:- A.O. was not justified in estimating the ALV of those flats in both the assessment orders on arbitrary basis. Accordingly, direct the A.O. to adopt standard rent as determined as per the Maharashtra Rent Control Act, 1999 if available or latest valuation made by the local authority Brahanmumbai Municipal Corporation (BMC) for the payment of the property tax whichever is higher, as ALV to be determined u/s.23(1)(a) of the Act in both the financial years relevant to A.Y's. 2005-06 and 2006-07. Ground no.2 in the A.Y. 2006-07 is allowed for the statistical purposes.
Determination of ALV u/s.23(1)(a) - Held that:- A.O. should determine the ALV of the said flat as per our directions in respect of ground no.2 and if the actual rent received by the assessee is higher as u/s.23(1)(b) then the same should be adopted. In our opinion, law is clear if the actual rent received by the assessee is more than the ALV determined u/s.23(1)(a) and in view of clause (b) to sec.23(1) actual rent received is to be adopted. In the present case, actual rent received by the assessee is more than the municipal rateable value and in view of clause (b) to sec.23(1) the A.O. has rightly adopted the said value. Accordingly, confirm the order of the Ld. CIT (A) on one flat at EL-DORDO Mumbai and dismiss ground no.3 for A.Y. 2005-06.
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2012 (4) TMI 726
Issues Involved:
1. Maintainability of petitions under Article 227 of the Constitution.
2. Prima facie case for the Dargah regarding the ownership of Manikonda lands.
3. Balance of convenience and irreparable injury.
4. Effect of errata notification and its retrospective application.
5. Effect of borrowed funds and potential monetary compensation.
Summary:
1. Maintainability of petitions under Article 227 of the Constitution:
The High Court observed that the civil revision petitions were filed under Article 227 of the Constitution, which is not maintainable when a statutory forum is created for redressal of grievances. The Wakf Act, 1995, u/s 83(9) vests revisional jurisdiction in the High Court to examine the correctness, legality, or propriety of the Wakf Tribunal's orders.
2. Prima facie case for the Dargah regarding the ownership of Manikonda lands:
The Dargah, managed by a committee, is a registered Wakf notified in the Andhra Pradesh Gazette. The Wakf Board issued an addendum to include Manikonda lands as Wakf property. The Wakf Tribunal found a prima facie case in favor of the Dargah based on various documents, including Gazette notifications, orders from Nazim-e-Atiyat, and High Court judgments. The Tribunal's finding of prima facie case was supported by the High Court.
3. Balance of convenience and irreparable injury:
The High Court emphasized the importance of maintaining the status quo to prevent multiplicity of litigation and irreparable loss to the Wakf beneficiaries. The court noted that the petitioner had made significant investments and completed substantial construction. However, it held that allowing alienation would lead to further complications and potential harm to public interest, outweighing the petitioner's inconvenience.
4. Effect of errata notification and its retrospective application:
The court held that an errata notification dates back to the original notification's date. The errata issued by the Wakf Board was valid and effective from the date of the original notification, thus including Manikonda lands as Wakf property.
5. Effect of borrowed funds and potential monetary compensation:
The petitioner argued that the injunction would cause irreparable injury due to substantial loans and investments. The court, however, held that public interest and rule of law must prevail over financial stakes. The court also rejected the argument that monetary compensation could replace the need for an injunction, emphasizing the importance of protecting Wakf properties.
Conclusion:
The High Court dismissed the civil revision petitions, except for one which was disposed of with specific observations. The court upheld the Wakf Tribunal's orders, emphasizing the need to protect Wakf properties and maintain the status quo to prevent further complications.
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2012 (4) TMI 725
Issues involved: Appeal filed by Revenue u/s 260A of Income Tax Act challenging Tribunal's order regarding addition of unsecured loan u/s 68 of Act.
Details of the judgment:
1. Issue: Justification of addition of unsecured loan
- The Revenue contended that the addition of Rs. 1.21 crores was justified under Section 68 as the Assessing Officer invoked it due to lack of confirmation from Pankaj Aggarwal.
- CIT(Appeals) confirmed the addition, which was later partially sustained by the Tribunal.
2. Issue: Assessee's submission and evidence
- Assessee provided detailed information about the unsecured loan from Pankaj Aggarwal, including PAN details and loan account.
- Assessee explained that the loan was part of a joint venture agreement with Ceylon Biscuits Ltd., Sri Lanka, and the source of funds was established.
3. Issue: Tribunal's decision on addition
- Tribunal deleted the addition of Rs. 98.50 lakhs, stating that the amount was an unsecured loan from a shareholder, Pankaj Agarwal.
- Tribunal noted that no evidence suggested Pankaj Aggarwal was involved in illegal activities like Hawala operations.
4. Issue: Lack of confirmation letter
- Despite the factual evidence provided by the assessee, CIT(Appeals) upheld the addition, questioning certain payments and receipts without concrete proof.
- Tribunal found no merit in the Revenue's appeal, emphasizing that Section 68 conditions were not met as the transaction was genuine and entered into for business reasons.
5. Conclusion
- The Tribunal dismissed the appeal, highlighting that the issues were factual and the addition was not justified under Section 68. No costs were awarded in the matter.
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2012 (4) TMI 724
Issues involved: Appeal against order of Learned CIT(Appeals) dismissed as time-barred, delay in filing appeal, condonation of delay, exemption claimed under sec. 54 of the Income-tax Act, 1961.
Issue 1: Appeal dismissed as time-barred
The assessee appealed against the order of Learned CIT(Appeals) dated 24.11.2011, which was dismissed on the ground of being time-barred. The assessee had filed the appeal with five grounds, seeking condonation of the delay in filing the appeal before the Learned First Appellate Authority.
Issue 2: Exemption claimed under sec. 54 of the Act
The case involved the assessee, a 70-year-old individual, who had sold a flat and claimed exemption under sec. 54 of the Income-tax Act, 1961. The Assessing Officer observed discrepancies in the claimed exemption amount and made an addition to the taxable income.
Issue 3: Condonation of delay
The delay in filing the appeal before the Learned CIT(Appeals) was a crucial aspect of the case. The appeal was instituted four months after the assessment order was passed, and an application for condonation of delay was submitted along with the appeal. The application cited reasons such as the assessee's health issues and absence from India for medical reasons.
Issue 4: Opportunity for re-adjudication
After considering the contentions of both parties, the Appellate Tribunal found that the delay in filing the appeal may have been due to genuine reasons and not a deliberate attempt to circumvent the process. Therefore, the Tribunal allowed the appeal, set aside the order of the Learned CIT(Appeals), and remitted all issues back to the Learned First Appellate Authority for re-adjudication. The assessee was granted another opportunity to explain the delay and present the case before the authority.
In conclusion, the Appellate Tribunal allowed the appeal of the assessee, emphasizing the importance of providing a fair opportunity for the assessee to present their case and address the delay in filing the appeal. The decision was pronounced in open court on 27.04.2012.
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