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Case Laws
Showing 101 to 120 of 2006 Records
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2018 (4) TMI 1910
Addition on account of suppressed scrap sales - Addition made on the basis of material found during the course of survey u/s 133A - Whether no evidence was given by the assessee to prove the market rate of that period? - HELD THAT:- In the absence of any evidence of scrap generation having been sold out of the books at higher rates, we hold that there is no justification on the part of the AO in making an addition on imaginative basis. - Decided in favour of assessee.
Bogus payment of commission - HELD THAT:- Since there is no change in the facts and circumstances for the assessment year under consideration, we affirm the order of ld. CIT (Appeals) who had rightly deleted the additions by following the decisions of the Tribunal in the assessee’s own case for the A.Y. 1999-2000[2011 (9) TMI 1228 - ITAT JAIPUR] - no substantial question of law arises.
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2018 (4) TMI 1909
Appeals heard ex parte qua the assessee - HELD THAT:- In view of this fact that none appeared on behalf of the assessee and there is no request for adjournment, there appeals are liable to be dismissed as unadmitted as was held by the tribunal in the case of CIT vs. Multiplan India (P) Ltd[1991 (5) TMI 120 - ITAT DELHI-D] - Respectfully following this tribunal order, these appeals are dismissed.
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2018 (4) TMI 1908
Dishonor of Cheque - amicably settlement of matter by way of compromise - compounding of offences - whether it is permissible to record the settlement and quash the judgment and order of conviction passed by the trial Court and affirmed by the appellate court? - HELD THAT:- The offence punishable under Section 138 NI Act is not an economic offence within the meaning of the economic offence so far as the applicability of Limitation Act 1974 , but still it is an offence falling within the compass of offences against property within the meaning of Chapter XVII of Indian Penal Code. Without entering into the point whether existence of mens rea is required to be brought on record legally to bring home the charge against the accused of the offence under Section 138 of NI Act, at least can be inferred that the intention of legislature while inserting Section 147 of the NI Act was clear that the aggrieved party can compound the offence. On a plain reading of Section 147 of NI Act, it is clear that the same does not confer any obligation to obtain permission for entering into a compromise or to compound the offence.
Merely because the litigation has reached to a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that at revisional stage, the nature of offence punishable under Section 138 of the NI Act should be treated as if the same is falling under table-II of Section 320 IPC - The country is under the process of and progress towards globalization. So the intention of the legislature and object of enacting "Banking", Public Financial Institutions and the Negotiable Instrument Laws (Amended Act) 1988 and subsequent enactment, i.e., Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002 leads this Court to a conclusion that the offence made punishable under Section 138 of NI Act is not only an offence qua property but it is also of the nature of an economic offence, though not covered in the list of statutes enacted in reference to Section 468 of Cr.P.C.
There is no formal embargo in Section 147 NI Act. So this principle would not help any convict in any other law where other applicable independent provisions are existing as the offence punishable under Section 138 of the NI Act is distinctly different from the normal offences made punishable under Chapter XVII of IPC - it is hereby declared that the compromise arrived between the parties to this litigation out of court is accepted as genuine and the order of conviction and sentence passed by the learned JMFC, Vadodara and confirmed in appeal by the learned Sessions Judge, Fast Track Court, Vadodara, therefore, on the given set of facts are hereby quashed and set aside as this Court intends, otherwise to secure the ends of justice as provided under Section 482 Cr.P.C. obviously the order disposing Revision Application would not have any enforceable effect.
It is hereby declared that the compromise arrived at between the parties to this litigation out of the court is accepted as genuine and the order of conviction and sentence passed by the 3rd Additional Chief Judicial Magistrate, Mehsana, dated 15th December 2015, in the Criminal Case No.4109 of 2013 is hereby ordered to be quashed and set-aside - petitions allowed.
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2018 (4) TMI 1907
Permission for withdrawal of appeal - Monetary limit involved in the appeal - HELD THAT:- When the appeal is having the tax effect of less than the prescribed limit, the appeal is not maintainable. Hence, the appeal is dismissed as withdrawn.
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2018 (4) TMI 1906
Seeking to restore the name of the company in the Register of Companies - section 252(1) read with section 252(3) of the Companies Act, 2013 - HELD THAT:- Perusal of the appeal filed by the appellant shows that the appellant has stated in the appeal of filing Income-tax Returns for the assessment years 2011-12 upto 2016-17 and the same has also been vouched by the Income-tax Department in its observations wherein it is stated that the Income-tax Department will have no objection if the name of the appellant-company is restored, as sought for in the appeal.
As rightly contended by learned counsel for the appellant in addition to the two situations of grounds contemplated, namely, that of the company carrying on business or was in operation at the time of striking off its name, the second situation, which is an alternative situation, is one where it appears just to the company court that the name of the company be restored to the register. It is also seen from the perusal of the provisions under section 252(3), that this Tribunal if it is of the opinion it is just that the name of the company is to be restored to the register of companies maintained by RoC, such orders can be passed for the name of the company to be so restored.
The name is directed to be restored - application allowed.
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2018 (4) TMI 1905
Seeking grant of bail - non- compliance of the condition of deposit of passport to the C.B.I - HELD THAT:- It is submitted by the learned counsel for the applicant that he has no grievance or difficulty if the part of the condition that "in other words he will not allow the leave the country without leave of the Trial Court." is kept intact as he is ready to comply that part of the condition and he will neither leave the country nor get the passport renewed without permission of the Trial Court - The petition is allowed.
The order dated 26.10.2017 is modified to the extent that the words mentioned in the condition no.1 "During the course of the arguments it was informed to the Court that his passport is with the respondent - Petition disposed off.
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2018 (4) TMI 1904
Addition u/s 68 - Tribunal deleted the addition u/s. 68 being share capital share premium received during the year when the AO held the same as unexplained cash credit - HC held that pre-amended Section 68 has held that where the Revenue urges that the amount of share application money has been received from bogus shareholders then it is for the Income Tax Officer to proceed by reopening the assessment of such shareholders and assessing them to tax in accordance with law. It does not entitle the Revenue to add the same to the assessee's income as unexplained cash credit. - HELD THAT:- The special leave petition is disposed of in above terms. Pending applications, if any, are also stand disposed of.
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2018 (4) TMI 1903
Assessment ex parte u/s 144 - estimation profit @ 5% of the turnover - CIT(A) reduced the rate of profit from 5% to 1% after considering the past history of assessee - HELD THAT:- The audited financial statement of the current year as well as profit declared by assessee in earlier years cannot be ignored while estimating the profit under best judgment assessment. The assessee for all the years had duly filed return of income which was not selected under scrutiny u/s 143(3) of the Act. Regarding the selection for scrutiny proceedings it is the policy of the Revenue and the assessee has no role to play in selecting the same under scrutiny. Therefore, in our considered view, it is imperative to take the guidance from the history of assessee.
Rate of profit estimated by Ld. CIT(A) is correct and in accordance with the provision of law. Thus, we uphold the order of Ld. CIT(A) and this ground of Revenue is dismissed.
Treating 1% of sale value of DEPB as income of the assessee - In the instant case, AO has treated the revenue from the sale of DEPB as income from other source. However, Ld. CIT(A) reversed the order of AO by holding that the amount of sale for DEPB is part and parcel of the total turnover of assessee. Now the issue before us arises whether the amount of DEPB represents the income from other source or income from business. We find that there is a explicit provision u/s 28(iiib) of Act which clearly says that the amount of DEPB will be taxed under the head “income from business and profession”
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2018 (4) TMI 1902
Refund of excess Input Tax Credit (ITC) - when the request for refund was being under consideration, the Writ Petition has been filed - HELD THAT:- The petitioner has to necessarily submit their reply/objections to the show cause notice and contest the matter before the respondent, as there is no order passed by the respondent, rejecting the claim of refund made by the petitioner.
The Writ Petition is disposed of, by directing the petitioner to submit their reply to the show cause notice, dated 05.02.2018, within 15 days from the date of receipt of a copy of this order, and on receipt of the reply, the respondent shall afford an opportunity of personal hearing to the Authorized Representative of the petitioner and pass a speaking order on merits and in accordance with law.
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2018 (4) TMI 1901
Principles of Res-Judicata - unilateral cancellation of assignment agreement - limitation period for filing of an appeal - what is to be done in matters where the hearing in the second case is shortly after the limitation period for filing an appeal in the first case has ended? - HELD THAT:- If the period of limitation for filing an appeal has not yet expired or has just expired, the Court hearing the second proceeding can very well ask the party who has lost the first round whether he intends to appeal the aforesaid judgment. If the answer is yes, then it would be prudent to first adjourn the second proceeding and then stay the aforesaid proceedings, after the appeal has been filed, to await the outcome of the appeal in the first proceeding - Many factors have to be considered before exercising this discretion – for example, the fact that the appeal against the first judgment is grossly belated; or that the said appeal would, in the ordinary course, be heard after many years in the first proceeding; or, the fact that third party rights have intervened, thereby making it unlikely that delay would be condoned in the appeal in the first proceeding. As has been stated, the judicious use of the weapon of stay would, in many cases, obviate a Court of first instance in the second proceeding treating a matter as res judicata only to find that by the time the appeal has reached the hearing stage against the said judgment in the second proceeding, the res becomes sub judice again because of condonation of delay and the consequent hearing of the appeal in the first proceeding. This would result in setting aside the trial Court judgment in the second proceeding, and a de novo hearing on merits in the second proceeding commencing on remand, thereby wasting the Court’s time and dragging the parties into a second round of litigation on the merits of the case.
In the present case, a belated review petition was filed after arguments were heard and judgment reserved by the appellate Court. Would this Court have to await the outcome of the said review petition before deciding whether the judgment dated 27.4.2013 is res judicata? Obviously not. It is clear that a review petition filed long after the judgment dated 27.4.2013, with a condonation application for a delay of over four years, could not possibly be held to be anything but an abuse of the process of the Court.
Both the trial Court and the first appellate Court were entirely wrong in treating the statutory prohibition contained in Section 45(2) of the Trade Marks Act as res judicata. It is obvious that neither Court has bothered to advert to Section 45 and/or interpret the same - A cursory reading of Section 45(2) of the Trade Marks Act makes it clear that the assignment deed, if unregistered, cannot be admitted in evidence by any Court in proof of title to the trademark by the assignment, unless the Court itself directs otherwise. It is clear, therefore, that any reliance upon the assignment deed dated 8.10.2003 by the earlier judgment cannot be sanctified by the plea of res judicata, when reliance upon the assignment deed is prohibited by law.
Equally, a reference to Sections 6, 8 and 46(4) of the Banking Regulation Act would also make it clear that a bank cannot use the trademark “Eenadu” to sell agarbathies. This would be directly interdicted by Section 8, which clearly provides that notwithstanding anything contained in Section 6 or in any contract, no banking company shall directly or indirectly deal in the selling of goods, except in connection with the realisation of security given to or held by it. Also, granting permission to third parties to use the trademark “Eenadu” and earn royalty upon the same would clearly be outside Section 6(1) and would be interdicted by Section 6(2) which states that no bank shall engage in any form of business other than those referred to in sub-section (1) - the trademarks are not part of any security for loans or advances that have been made to the first respondent, or connected with the same. It is thus clear that the assignment deed dated 8.10.2003 is clearly hit by Section 6(2) and Section 8 read with the penalty provision contained in Section 46(4) of the Banking Regulation Act.
The judgment of the trial Court and the first appellate Court are set aside - Appeal allowed - decided in favor of appellant.
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2018 (4) TMI 1900
100% EOU - grant of Private Bonded Warehouse licence - failure go fulfill export obligation - export of buffalo meat and tapioca - HELD THAT:- The petitioner is now attempting to put forward a case based on merit. There is no error in the decision making process. All that was canvassed by the petitioner in this writ petition could have been canvassed in the appeal. If the appeal was dismissed on the ground of limitation, the petitioner cannot resurrect such ground which could have been canvassed before the appellate authority, by way of a writ petition. Since there is no error in the decision making process, the writ petition is only to be dismissed.
The petitioner is permitted to discharge the liability in 12 monthly instalments starting from next month onwards - Petition dismissed.
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2018 (4) TMI 1899
Suit for declaration and permanent injunction - Fraudulent putting thumb impressions on the sale deed - time limitation - HELD THAT:- There are no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the Appellants (Plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation.
What is relevant for answering the matter in issue in the context of the application Under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the Defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application Under Order VII Rule 11(d). Only the averments in the plaint are germane.
The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto - In the present case, it is found that the Appellants (Plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original Defendant Nos. 1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original Defendant Nos. 1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the Appellants.
There are no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh. 21) filed by Respondent No. 1 (Defendant No. 5) Under Order VII Rule 11(d) - the plaint will get restored to its original number on the file of the IVth Additional Civil Judge, Anand, for being proceeded further in accordance with law.
Appeal allowed.
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2018 (4) TMI 1898
Disallowance of sale promotion expenses u/s 37(1) - disallowance was made on the ground that the payment made by assessee is covered by Circular No.5/2012 issued by CBDT - Assessee Company is engaged in the business of manufacturing of Pharmaceuticals product and in Oral care products - - HELD THAT:- The assessee has to satisfy the AO that the expenditure is not in violation of the Medical Council regulation. Thus, if the assessee brings out that the MCI regulation is not applicable to the assessee before the AO, the same cannot be applied blindly.
Hon’ble Delhi High Court in Max Hospital v. MCI[2014 (1) TMI 1829 - DELHI HIGH COURT] held the Medical Council of India admitted that the Indian Medical Council Regulation of 2002 has jurisdiction to take action only against the medical practitioners and not to health sector industry. The High Court further held that it is ostensibly clear that the Medical Council of India has no jurisdiction to pass any order or regulation against any hospital or any health care sector under its 2002 regulation. So once the Indian Medical Council Regulation does not have any jurisdiction nor has any authority under law upon the pharmaceutical company or any allied health sector industry, then such a regulation cannot have any prohibitory effect on the pharmaceutical company like the assessee.
Thus, considering the above factual and the legal position, we are of the view that expenditure incurred by assessee on distributing glass, face mask, pen, writing pad, towel set, wall clock, paper cups except ‘Voltas Cooler and stabilizer’ cannot be regarded as freebies given to the Doctors. Hence, except the cost of the Voltas Cooler and stabilizer we allow all the remaining expenditure incurred by the assessee on account of sale promotion expenses. Therefore, the ground of appeal raised by the assessee is partly allowed.
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2018 (4) TMI 1897
Validity of order u/s 144C - period of limitation - whether order was passed beyond the time prescribed u/s.144C(2) read along with section 144C(4)? - HELD THAT:- It is not disputed that the draft assessment order was served on the assessee on 29.12.2016 and the assessee filed objections before the DRP as on 31.01.2017 - it was filed after the thirty day time period allowed under sub-section (2) of Section 144C of the Act. As rightly pointed out by the ld.DRP, there is no power u/s.144C for the DRP to condone any delay. Powers of the DRP are exhaustively set out in Sec.144C of the Act and it has no power to condone any delay in filing of objections.
DRP rightly held that application of objections could not be accepted. In our opinion, delayed filing of objections gives rise to the same consequence as non-filing of the objections. This is because objection filed after 30 days, which is beyond statutory limit, is as good as no objection. Copy of the objections was filed by the assessee before the ld. AO only on 30.03.2017, and even this was beyond the limit of 30 days. Thus, assessee did not satisfy any of the conditions mentioned in sub-section (2) of section 144C. Non-filing of objections within the time period allowed under 30 days will automatically attract application of sub-section (4) of Section 144C of the Act. Sub-section (4) clearly say that an assessment order has to be passed within one month from the end of the month when the period of filing of objections under sub-section (2) expires. Contention of the ld.D.R is that the order of the DRP rejecting the application filed by the assessee was a direction of the DRP and hence time limit set out in sub-section (13) of Section 144C was available to the Assessing Officer for passing the assessment order.
An order passed by the DRP rejecting an application of objections, due to belated filing, in our opinion, cannot be equated with a direction coming within the meaning of sub-sections (5) of section 144C of the Act. There is no guidance whatsoever to the ld.AO, from such an order. Hence, the argument of the ld.DR that time limit given in sub-section (13) of Section 144C of the Act would apply cannot be accepted. In the case before us, the time limit for filing objections expired on 28.01.2017. Hence, the assessment order should have been passed on or before 28.02.2017. The assessment order was passed only 22.03.2017. Thus, assessment done was beyond the statutory limit allowed under the Act. The assessment stands set aside - Assessee appeal allowed.
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2018 (4) TMI 1896
Rectification of mistake u/s 254 - mistake apparent on record to the extent of not considering the correct facts on the issue of validity of reopening of the assessment - assessee has contended that the said amount has been duly disclosed in the return of income as part of the long term capital gain on sale of shares - HELD THAT:- We note that though the Tribunal while passing the impugned order has rejected the contention of the assessee against the validity of reopening however, this particular fact whether the assessee has disclosed this amount in the return of income or not has escaped consideration by the Tribunal while deciding the issue. Hence, we are of the considered view that there is a mistake apparent on record in the impugned order and consequently we recall the impugned order of the Tribunal for fresh hearing and adjudication of the matter. The registry is directed to fix the appeal of the assessee for fresh hearing and adjudication in regular course. The parties to be informed about the next date of hearing.
In the result, the miscellaneous application is allowed.
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2018 (4) TMI 1895
Tribunal justification not following the orders of the coordinate Benches, on identical fact situation that the coordinate Benches did not apply the correct test of human probabilities - HELD THAT:- As is evident from the question, the grievance of the Appellant is with the decision making process of the Tribunal. In the above view, we are inclined to dispose of the appeal at the stage of admission.
As none appears for the Respondent; despite service, this appeal is being adjourned to 25.4.2018. At which time it is likely that the Appeal itself may be disposed of at the stage of admission - The Appellant is directed to serve a copy of this order upon the Respondent-Revenue.
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2018 (4) TMI 1894
Levy of service tax or VAT - works contract with Government of Tamil Nadu through respondents 5 to 15 for carrying out several construction and other works - It is the specific case of the appellant that service tax was not collected from Government / TNHB and that sovereign functions of the State are not liable to tax - HELD THAT:- When service tax was not included in tender notification and collected, appellant is constrained to challenge the very notification itself, on the ground that appellant need not collect service tax and pay to 1st respondent and thereafter to get reimbursed from State / TNHB.
The service tax is paid by the appellant and reimbursement is sought for. If any amount has already been collected, then the appellant cannot retain, but to pay to the 1st respondent. But, in the case on hand, no service tax was collected, but the appellant is compelled to pay and thereafter, to get the same reimbursed. Appellant need not be mulcted with liability to pay service tax, which they have not collected from the Government / Tamilnadu Housing Board, and consequently, to pay the same to 1st respondent. Intention not to collect service tax from government for sovereign functions, is the main issue and that is why exemption has been granted earlier.
Appellant is entitled for an order of interim injunction - appeal allowed.
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2018 (4) TMI 1893
Rejection of permission to the petitioner to visit abroad - Sections 406, 420, 506, 34 of IPC - HELD THAT:- The petitioner is granted permission to travel abroad from 21.04.2018 to 15.05.2018 subject to deposit of ₹ 2.00 lacs with the trial Court. Petitioner shall also furnish an undertaking that in case he failed to return back to India or appear before the trial Court within the aforesaid time, said amount of ₹ 2.00 lacs shall stand forfeited to the State.
Petition disposed off.
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2018 (4) TMI 1892
Estimation of income - bogus purchases - HELD THAT:- As disclosed by the assessee is at 8.55% which is as per the market rate of similar diamond traders and also similar to as disclosed by the assessee in earlier years - It is also a fact that the assessee has failed to substantiate the purchases by not producing the parties in question and admission of the party that they have indulged in providing bogus accommodation entries.
Some cases cited by the Tribunal of Mumbai Tribunal has adopted 2% net profit rate. Considering the net profit of 5% as the average rate of the industry as observed by the Hon`ble Jurisdictional High Court and following the judicial pronouncements by the Co-ordinate Bench of Tribunals and the decision in the case of Mayank Diamonds Pvt. Ltd. v. ITO[2014 (11) TMI 812 - GUJARAT HIGH COURT] we deem it fit to restrict the addition to 5% of total bogus purchases.
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2018 (4) TMI 1891
Money Laundering - rejection of conversion of issuance of nonbailable warrant into bailable warrant - Section 13(2) read with Section 13(1)(E) of the Prevention of Corruption Act, 1988 - HELD THAT:- The extra ordinary jurisdiction of this court available under Art.226/227 of the Constitution of India can be availed only in case no efficacious and effective alternate remedy is available to the petitioner. Even if an effort is made by the petitioners to do so, the courts should exercise this power with great circumspect and should be loath to interfere. In the existing facts and circumstances of the case in hand, the efficacious and effective remedy was available to the petitioners to move the High Court under Sec.482/483 Cr.P.C for recalling the order impugned dated 15.3.2018 whereby application filed under Sec.70 (2) Cr.P.C was rejected.
Whenever a case is demonstrated that the exercise of powers under Sec.482/483 is required to curb the abuse of the process of the court and to advance the cause of justice, the High Court would come forward to the rescue the petitioner. This remedy has not been availed by the petitioner in the matter in hand. Instead the extra ordinary writ jurisdiction under Art. 226 of the Constitution of India has been invoked by the petitioners which is not warranted in the existing facts & circumstances of the case.
Taking note of the fact that the petitioners may still avail this remedy, if so advised, this court thinks it proper to restrain it from embarking upon the discussion on merits of the case - the preliminary objection raised by the learned counsel for the respondent/s regarding maintainability of these petitions, is sustained - Petition dismissed.
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9911796707
