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Showing 101 to 120 of 1255 Records
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2015 (5) TMI 1164
Application seeking production of Call Detail Records for the phone number "9811806773" of Mr. Jyoti Chhabra being a representative of a company by the name of ATOS Origin - petitioner had prayed in the application for the production of Call Detail Records for the purpose of cross-examining PW-18 Mr. Sujit Panigrahi - It is the case of the petitioner that he was also in a commercial relationship with Microsistemas Lagasca S. A. de Madrid (hereinafter referred to as "MSL"), which had in fact bid for the TSR RFP.
It is the case of the prosecution that the contract for Timing Scoring and Results systems for the Commonwealth Games 2010 ought not to have been awarded to Swiss Timing/Omega, but to a Spanish company by the name of MSL Software.
Held that:- The petitioner is facing trial for an offence which may entail him punishment. He is seeking production of those documents and things which according to prosecution records even appear to be inexistence and which he feels shall help him in defending himself. According to him that these documents are connected with the case in hand. Therefore, it cannot be argued straightway that he is trying for making of any roving or fishing inquiry or is making a request which may be unreasonable. It is settled law that in a criminal trial the prosecution has to be absolutely fair and impartial. The main purposes of a criminal trial is not to get some one convicted. The object is to discover the truth and punish the accused if found guilty. The documents which he himself cannot procure for the purposes of putting his defence have to be requisitioned by invoking Section 91 Cr.P.C., if the Court is satisfied that those are necessary or desirable for the purpose of trial.
The defence has to be built up from day one of the trial. The right to defend, which flows from the fundamental right to "life" and "personal liberty" enshrined in Article 21 of the Constitution of India, is not an illusionary right, but a substantive one. The tool given in the hands of the court to discover the truth of the controversy before it. The power under Section 91 Cr.P.C. to discover the truth and to do complete justice to the accused. Naturally, the discretion vested in the Court must be applied judiciously, while keeping in mind the constitutional mandate, and the purpose of Section 91 Cr.P.C.
In the present case, Trial Court has observed that the petitioner does not require the Call Detail Records of Mr. Jyoti Chhabra for the cross examination of PW -18 Sujit Panigrahi on the ground that the records are "hardly of relevance" when the mobile call record of PW-18 is already on record. The Trial Court apparently did not make relevancy of the onward communications of Mr. Jyoti Chhabra with officers of MSL - Trial Court did not consider the request of the petitioner that the Call Detail Records of PW -18 Sujit Panigrahi cannot establish the nexus between representatives of MSL, Jyoti Chhabra and PW-18 Sujit Panigrahi. Call Detail Records of PW-18 Sujit Panigrahi only demonstrate communication between PW-18 Sujit Panigrahi and Mr. Jyoti Chhabra which cannot disclose the onward communication between Mr. Jyoti Chhabra and representatives of MSL.
The application filed by the petitioner before the trial court is allowed by quashing the impugned order for summoning the Call Detail Records for "9811806773"of Mr. Jyoti Chhabra of ATOS Origin - petition disposed off.
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2015 (5) TMI 1163
Disallowance u/s 14A - Held that:- When the assessee has brought out a case that no expenditure other than that disclosed in the return, has been incurred for earning the income which does not part of the total income, and in the absence of finding by the Assessing Officer that expenditure has been incurred for earning the exempt income the provisions of section 14A could not be invoked to make an additional disallowance under the facts and circumstances of the present case. - Decided in favour of assessee
Allowance of depreciation on moulds (plastics) at the reduced rate of 15% as against 30% claimed by the assessee - Held that:- Identical issue came up for adjudication before the ITAT in assessee’s own case for the Assessment Years 2005-06; 2006-07 and 2007-08 and the Tribunal has consistently decided the issue in favour of the assessee.
Disallowance u/s 145A in respect of unutilized MODVAT credit - Held that:- As relying on assessee's own case we are of the opinion that the issue being the consistency to be followed in the calculation of closing stocks in ‘inclusive method’ as prescribed by the ICAI the matter needs to be restored back to the file of the Assessing Officer with similar directions as given in the earlier years. Appeal of assessee is allowed for statistical purposes.
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2015 (5) TMI 1162
Government advertisements - Seeking an appropriate writ to restrain the Union of India and all State Governments from using public funds on Government advertisements - Prevention of misuse/wastage of public funds in connection with such advertisements - Appropriate guidelines - meaning of "state" under Article 12 of the Constitution - recommendations with regard to the appointment of Ombudsman - Advertisements issued to commemorate the anniversaries of acknowledged personalities like the father of the nation would of course carry the photograph of the departed leader.
HELD THAT:- The issues arising in the writ petitions were considered by this Court in an earlier round of exhaustive hearings - This Court, on consideration of the respective stands of the parties and by relying on the principles laid down in the decisions specifically referred to in the order dated 23.04.2014, inter alia, held that there is no dispute that “primary cause of government advertisement is to use public funds to inform the public of their rights, obligations, and entitlements as well as to explain Government policies, programmes, services and initiatives.” It was further held that only such government advertisements which do not fulfil the above requisites will fall foul of the area of permissible advertisements. This Court acknowledged the fact that the dividing line between permissible advertisements that are a part of government messaging and advertisements that are “politically motivated” may at times gets blurred.
Article 38 and 39 of the Constitution enjoin upon the State a duty to consistently endeavour to achieve social and economic justice to the teeming millions of the country who even today live behind an artificially drawn poverty line. What can be the surer way in the march forward than by ensuring avoidance of unproductive expenditure of public funds. This is how we view the present matter and feel the necessity of exercise of our jurisdiction under Article 142 of the Constitution to proceed further - It is neither possible nor feasible or even necessary to try and encompass the myriad situations where government advertisements are issued. Indeed, the situations and circumstances; events and occasions on which government advertisements are issued are infinite. Nevertheless, an attempt can be made to arrive at a broad categorization for the purpose of an illustrative understanding.
Advertisements highlighting completion of a fixed period of the Government’s Tenure - Held that:- Though the achievements of a Government should not be a matter of publicity and really ought to be a matter of perception to be felt by the citizens on the results achieved, such advertisements do have the effect of keeping the citizens informed of the government functioning and therefore would be permissible.
Advertisements announcing projects - Held that:- Though such advertisements may look like a report card of the Government there is an element of informative content in such advertisements inasmuch as information is conveyed to the citizens as regards government programmes, policies and achievements.
Advertisements issued on the occasion of birth/death anniversaries and such other events - Held that:- Government advertisements are issued in the memory of great personalities who occupy a significant place in our history, such as, the father of the Nation, Mahatma Gandhi. While such persons must certainly be remembered, what, however, would not be justified is several similar, if not identical, advertisements issued by different Departments on the same occasion as is happening today. One single advertisement issued by a Central Agency should be enough to commemorate the anniversaries of the few acknowledged and undisputed public figures whose contribution to the National Cause cannot raise any dispute or debate - Advertisement issued on certain other occasions, for instance, to mark the centenary year of the Patna High Court does not serve any purpose and must be avoided. Institutions need not be glorified. They must earn glory by contribution and work.
Advertisements announcing policies and benefits for public - Held that:- All advertisements that fall within this category would be in public interest. Such advertisements, as for example in respect of the National Savings Schemes informing the public about benefits under the Scheme, are purely informational and make people aware of their rights and entitlements. Similarly, advertisements issued to generate public awareness would also be justified on the touchstone of public interest. By way of illustration, an advertisement issued by the Ministry of Health and Family Welfare informing the public of preventable disease, safeguards to be taken, vaccination programmes for the children, etc. would be highly informative and, therefore, justified.
A connected facet of the matter which cannot be ignored is the power of the Government to give/award advertisements to selected media houses and the concomitant issue of freedom of press. Award of advertisements, naturally, brings financial benefit to the particular media house/newspaper group. Patronization of any particular media house(s) must be avoided and award of advertisements must be on an equal basis to all newspapers who may, however, be categorized depending upon their circulation.
While, undoubtedly there can be no blind adherence to the practices followed in other jurisdictions as what may be appropriate to another country may not be ideal in the Indian context, the correct approach will be to discern some of the best practices prevailing in such jurisdictions and thereafter to test the relevance of the same to our own country. Though the recitals contained in the Report of the Committee do mention a consideration of such good practices prevailing in other jurisdictions there is however no discussion or even an indication of the precise contents of the practices that were found by the Committee to be in existence in other countries.
The legitimate and permissible object of an advertisement, as earlier discussed, can always be achieved without publication of the photograph of any particular functionary either in the State of a political party. We are, therefore, of the view that in departure to the views of the Committee which recommended permissibility of publication of the photographs of the President and Prime Minister of the country and Governor or Chief Minister of the State alongwith the advertisements, there should be an exception only in the case of the President, Prime Minister and Chief Justice of the country who may themselves decide the question. Advertisements issued to commemorate the anniversaries of acknowledged personalities like the father of the nation would of course carry the photograph of the departed leader.
The recommendations of the Committee is approved and adopted except what has been specifically indicated above with regard to (1) publication of photographs of the Government functionaries and political leaders alongwith the advertisement(s); (2) appointment of an Ombudsman; (3) the recommendation with regard to performance audit by each Ministry - (4) embargo on advertisements on the eve of the elections.
Petition disposed off.
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2015 (5) TMI 1161
Notional Income as Income from House Property in respect of the 3(three) unsold shops shown as Stock-in-trade - estimating rental income from the vacant flats - Held that:- Assessee is engaged in business of construction and development, which is main object of the assessee company. The three flats which could not be sold at the end of the year was shown as stock-in-trade. Estimating rental income by the AO for these three flats as income from house property was not justified insofar as these flats were neither given on rent nor the assessee has intention to earn rent by letting out the flats. The flats not sold was its stock-in-trade and income arising on its sale is liable to be taxed as business income. No justification in the order of AO for estimating rental income from these vacant flats u/s.23 which is assessee’s stock in trade as at the end of the year. AO is directed to delete the addition made by estimating letting value of the flats u/s.23.
Claim of deduction u/s.54EC - Held that:- The assessee is also aggrieved for restricting the claim of deduction u/s.54EC to ₹ 50 lakhs as against ₹ 1 crore claimed by the assessee. From the record we found that the assessee has shown long term capital gain of ₹ 40,15,660/- on sale of equity shares of India Finance &. Construction Co. Pvt. Ltd. after availing deduction u/s.54EC amounting to ₹ 1,00,00,000/-. The.AO noted that assessee company sold equity shares of India Finance & Construction Co. Pvt. Ltd on 31.03.2009 and earned long term capital gains of ₹ 1,40,15,680/- on which assessee has claimed deduction of ₹ 1,00,00,000/- u/s. 54EC and declared LTCG at ₹ 40,15,660/-. AO also noted that proviso to sub-section (1) of section 54EC wherein the Legislature has prescribed limit of ₹ 50 lakhs for the purpose of deduction under that section by the Finance Act, 2007 which is effective from 01.04.2007. The assessee had invested ₹ 50 lacs on 31.3.2009 and ₹ 50 lacs on 30.4.2009. However, the AO did not allow exemption in respect of ₹ 50 lakhs invested on 30-4-2009 on the plea that limits prescribed u/s.54EC relates to transaction and not to the financial year. By the impugned order, the CIT(A) confirmed the action of the AO.
The legislature has also removed the ambiguity by inserting second proviso to Section 54EC w.e.f.1-4-2015. The memorandum explaining the provisions in the Finance (No.2) Bill, 2014 also states that the same will be applicable from 1.4.2015 in relation to assessment year 2015-16 and the subsequent years. The intention of the legislature is to clarify that this amendment should be for the assessment year 2015-16 to avoid unwanted litigations of the previous years.
Respectfully following the decision of CIT Vs. C.Jaichander & Sriram Indubal (2014 (11) TMI 54 - MADRAS HIGH COURT), we do not find any merit for disallowing claim of deduction u/s.54EC. - Decided in favour of assessee
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2015 (5) TMI 1160
Stay against the recovery of demand - order of attachment - petitioner preferred stay application before the Commissioner of Income-tax (Appeals) in the month of January-February, 2015. Meanwhile, the respondents issued a notice under section 226(3) for recovery of the amount - Held that:- We see no reason to criticise the respondents for issuance of this notice. On the contrary, if the Department has not issued notice we would have criticised such action because enough time has lapsed after the order of reassessment was passed and, therefore, this notice is rightly issued by the respondents for recovery in the light of the fact that there was no stay application filed by the petitioner before the Commissioner of Income-tax (Appeals). The respondents has to recover the reassessed Income-tax.
Thus, no sub stance in the hue and cry made by the petitioners against the conduct of the respondents and we find no undue haste made by the respondents for recovery of the Income-tax reassessed. On the contrary, it is apparent that the Department has waited for a considerable period.
In view of the total turnover of the petitioner, which runs into more than ₹ 56,00,00,000 (rupees 56 crores) per annum (as it appears from the entries of the financial year 2013- 14), perhaps, lesser number of instalments could have been allowed. As this is not the matter in dispute, we are not going into the leniency shown by the respondents but suffice it to say that no undue haste has been dis played by the respondents with respect to recovery of the amount of the Income-tax reassessed.
Unfortunately, order of 16 instalments, which is without a doubt very lenient in the facts of the present matter, has also not been complied with as it is submitted by counsel for the respondents that there is default in payment of the very first instalment and, therefore, a letter has been writ ten by the Assistant Commissioner of Income-tax, Circle III, Jamshedpur, that if this instalments are not paid, they will initiate all permissible legal actions under the provisions of the Income-tax Act of 1961 and the Rules made thereunder, which are absolutely in accordance with law and can never be termed as excessive.
At this stage, the counsel for the petitioner submits that this petitioner will make payment of ₹ 4,00,000 as monthly instalments granted by the Assessing Officer. It would not be out of context to mention here that if the order was complied with earlier, i.e., if the petitioner had scrupulously complied with the order of instalments granted by the respondents, there would not have been any occasion for the respondents to take actions, which were necessary for recovery of the reassessed amount of the Income-tax. Petition dismissed.
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2015 (5) TMI 1159
TDS u/s 194H or 194C - non-deduction of TDS by the assessee on so-called reimbursement of advertisement expenses to its dealers - addition u/s 40(a)(ia) - assessee in default - applicability of Provisions of section 201(1)/201(1A) - Held that:- Having heard learned counsel for the appellant-assessee and learned counsel for the department and having examined the records of the present appeal, we find that no question of law arises from the impugned order. Hence, there is no reason to interfere with the impugned order passed by the Tribunal.
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2015 (5) TMI 1158
Settlement commission order - denial of natural justice - additional report was submitted by the Commissioner on 19.02.2015 in the course of the hearing being granted to the petitioner under Section 245D (2C) proviso and no opportunity was granted to the petitioner to respond to the same - Held that:- The documents which were filed on 19.02.2015 constituted part of the report which the Commissioner had initially filed on 10.02.2015. We also note that the Settlement Commission had relied upon the documents which were filed on 19.02.2015. In this backdrop, we are of the view that adequate opportunity was not given to the petitioner to respond to the said documents.
For this reason, we are setting aside the impugned order dated 24.02.2015. We are remitting the matter to the Settlement Commission to the stage of consideration of the Commissioner’s report and of giving an opportunity of hearing to the petitioner. Mr. Syali, the learned senior counsel appearing on behalf of the petitioner, states that he shall not take the plea of limitation with regard to the additional documents dated19.02.2015 and they shall be construed and deemed to be part of the original report dated 10.02.2015 submitted by the Commissioner.
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2015 (5) TMI 1157
Deemed international transactions - TPA - adjustment in respect of the relevant transactions of the assessee with M/s. Mylan Laboratories Ltd., involving the payment of management fees - Held that:- s The issue involved in the year under consideration as well as all the material facts relevant thereto are similar to that of A.Y. 2009-2010 [2015 (3) TMI 1271 - ITAT HYDERABAD], we respectfully follow the decision of the Coordinate Bench of this Tribunal for A.Y. 2009-2010 and uphold the order of the DRP directing the A.O. not to make any addition on account of T.P. adjustment in respect of the transactions of the assessee company with M/s. Mylan Laboratories Ltd., involving payment of management fees. The appeal of the Revenue is accordingly dismissed.
Disallowance of depreciation in respect of technical knowhow purchased from M/s. Mylan Laboratories Ltd. and development charges paid to the said company - Held that:- The issue involved in the appeal of the assessee for the A.Y. 2010-2011 thus is squarely covered in favour of the assessee by the decision of the Coordinate Bench of this Tribunal rendered vide order dated 25.03.2015 (supra) for A.Y. 2009-2010 and respectfully following the same, we direct the A.O. to delete the disallowance made on account of assessee’s claim for depreciation of ₹ 9,71,97,865 on intangible assets. - Decided in favour of assessee
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2015 (5) TMI 1156
Addition u/s 36(1)(va) r.w.s. 43B - default related to payment of provident fund (PF) - employer and employees contribution - there are further contributions viz. voluntary provident fund, employees state insurance corporation, group savings, linked insurance - Held that:- Following the view taken therein, as also the law laid down by the Hon'ble Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusions Limited [2009 (11) TMI 27 - SUPREME COURT], we dismiss this appeal insofar as this question is concerned.
However, at the request of Mr. Malhotra and equally Mr. Jitendra Singh to obtain details of any pending appeals by the Revenue involving questions identical to Question No.6.2, stand over to 8th June, 2015.
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2015 (5) TMI 1155
Reopening of assessment - Held that:- CIT(Appeals) noted in the impugned order that detailed analysis of the case have been made by the Assessing Officer which were put up before higher authorities for approval of the re-assessment of the case. CIT(Appeals) also noted that the Additional CIT, after examining the record has duly approved the re-opening of the assessment by noting "It is a fit case for issue of notice under section 148". Therefore, proper mind had been applied by the authorities below for giving sanction for re-opening of the assessment.
Considering the facts of the case in the light of the above discussion and the fact that assessee has failed to rebut the finding of facts recorded by the authorities below, we do not find any justification to interfere with the order of CIT(Appeals) on these issues. Ground Nos. 5 & 6 of the appeal of the assessee are accordingly, dismissed.
Disallowance under section 11 of the Act - registration granted under section 12AA - Held that:- Assessing Officer rightly found that assessee's activity does not fall within the meaning of "The advancement of any other object of general public utility under section 2(15) of the Income Tax Act". The ld. CIT(Appeals) also noted in the impugned order that facts of the case of the assessee are identical to that of PUDA [2006 (6) TMI 141 - ITAT CHANDIGARH-B] as was contended by the assessee before him. CIT(Appeals) was therefore, justified in following the decision of ITAT Chandigarh Bench in the case of PUDA (supra). It was also found that when income of M/s. Omaxe Ltd. was taxable which earned 85% of the income, then how the income of the assessee at 15% from the same Joint Agreement with M/s. Omaxe Ltd. would be exempt and how the assessee could claim exemption of income under section 11 of the Act. The authorities below have correctly analyzed the facts and material on record before giving adverse finding against the assessee denying exemption u/s 11 of IT Act.
Status of artificial jurisdictional person against status of AOP (Trust) - Held that:- CIT(Appeals) noted that facts are similar as were considered in assessment year 2009-10 in which status of assessee has been taken as artificial jurisdictional person. It was also noted that in the similar case of Patiala Improvement Trust for assessment year 2003-04 and 2004-05, ITAT held that the status of assessee should be of artificial jurisdictional person. Therefore, finding the issue to be same, ld. CIT(Appeals) confirmed the order of Assessing Officer and dismissed this ground of appeal of the assessee. Nothing is argued from the side of the assessee. Therefore, we do not find any justification to interfere with the order of CIT(Appeals) in confirming the order of the Assessing Officer taking the status of artificial jurisdictional person by following the order of the Tribunal in the case of Patiala Improvement Trust. Ground No. 4 of the appeal of the assessee is accordingly, dismissed.
We have already confirmed orders of the authorities below denying exemption under section 11 of the Act, therefore, donation is not allowable deduction because it is not connected with business activity of the assessee. Further expenditure of ₹ 10.47 Crores cannot be allowed because assessee has failed to explain nature of the business expenditure before the authorities below. Even before us no details have been furnished. Therefore, in the absence of any details or evidences, we do not find any justification to interfere with the orders of the authorities below. This ground of appeal of the assessee is accordingly, dismissed.
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2015 (5) TMI 1154
TPA - DRP directing the TPO to include forex gain/loss as operating in nature - Held that:- We are of the view that the stand taken by the Revenue is unsustainable. It is not disputed that the foreign exchange fluctuation and the resulting gain to the assessee was in respect of the sale proceeds which the assessee had to realize. In such circumstances, it cannot be contended by the Revenue that the nexus of the foreign exchange gain with the business activity of the tax payer has not been ascertained by the DRP. We therefore do not find any merits in this appeal by the Revenue. Consequently the same is dismissed.
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2015 (5) TMI 1153
Maintainability of contempt proceedings - maintainability of the appeal was challenged on the ground that a special appeal will not lie against an order of the learned Single Judge in the exercise of the contempt jurisdiction and that only an appeal under Section 19 of the Contempt of Courts Act, 19716 would be maintainable - Held that: - under Section 19 (1), an appeal lies as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt. Under sub-section (2) of Section 19, the appellate court is empowered to direct that the execution of the punishment or the order appealed against be suspended; that the appellant, if he is in confinement, be released on bail; and that the appeal be heard, though the appellant has not purged his contempt.
No appeal would be maintainable under Section 19 (1) (a) for the simple reason that the impugned order of the learned Single Judge has not been passed in the exercise of the jurisdiction to punish for contempt.
A mediated settlement, upon the passing of a judicial order in terms of the settlement, has the effect of a decree of the Court. As a decree, the terms of the settlement are enforceable and executable in accordance with the process known to law. A decree for the payment of money is capable of being executed in the manner indicated by the provisions contained in Order XXI of CPC. Rules 1 and 2 of Order XXI provide for the mode of paying money under a decree and for the payment out of Court to a decree holder. Consequently, where a settlement agreement which has been arrived at between the parties is embodied in a final order or decree of the Court, the remedy of a party which is aggrieved by the non-payment of sums due and payable under it is to enforce and execute the decree in accordance with law.
The learned Single Judge erred in rejecting the preliminary objection to the maintainability of the contempt petition. The contempt petition was not maintainable - appeal allowed.
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2015 (5) TMI 1152
Unexplained investment u/s 69 - cash deposits of ₹ 17,15,169 in the SB A/c of assessee - Held that:- On perusal of the bank statement copy, it appears that the entire amount of ₹ 17,15,169 was deposited on 21/06/14 and the entire amount was also withdrawn on the very same day through self cheques. Apart from these deposits, there are no other deposits in the bank account. In fact the bank account copy reveals that virtually there is no other substantial transaction in the bank account apart from the deposits made on 21/06/14.
It is also evident that assessee’s son was granted visa on 17/12/04 for pursuing higher studies in USA. Though, it may be a fact that assessee’s statement could not be cross verified by examining Sri S.N. Murthy as his whereabouts could not be found out, but, that itself will not lead to the conclusion that the statements made by assessee in the affidavit are false when circumstantial evidences as found from the bank account copy and visa granted to certain extent prove the fact that the statements made in the affidavit by assessee cannot be rejected outright and are believable. AO has not found out any other ostensible source of income, apart from source of income disclosed by assessee, which could indicate earning of such huge income by assessee. - Decided against revenue
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2015 (5) TMI 1151
Disallowance of deduction u/s. 80P(2)(a)(i) - assessee Co-operative Credit Society has earned interest income from the deposits with nationalized bank - Held that:- The stand of the assessee right through has been that the society is not engaged in any other activity except receiving deposits from its members and providing credit facilities to its members. The assessee has made deposits with nationalized banks in order to maintain liquidity and provide ready availability of funds for repayment of deposits on redemption/maturity. These facts have not been refuted by the department. See ITO Vs. Niphard Nagari Sahakari Patsanstha Ltd. [2013 (7) TMI 1105 - ITAT PUNE]
Thus, we hold that the assessee is eligible to claim deduction u/s. 80P(2)(a)(i). - Decided in favour of assessee.
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2015 (5) TMI 1150
Re-opening of reassessment proceedings - C-Forms - The stand of the State that the petitioner firm was assessed at the rate of 2% as the petitioner firm submitted C-Form(s) in respect of interstate sale of crude soya oil, but after verification from the concerned State it was found that number of C-Forms were not issued in favor of the petitioner purchaser or the C-Form found to be not genuine and, therefore, reassessment was done and the petitioner has been assessed @ of 5% along with three times penalty of the tax.
Held that: - It is the duty of the petitioner to prove the bonafides on his part that he took all necessary steps to prove the validity of the C-Forms received from the purchaser. The connivance of the petitioner is clear from the act that no specific document has been annexed or has been submitted during the reassessment proceeding stating that he has inquired from the purchaser about the validity of the C-Form.
As per original record, here is a huge scam in respect of C-Form submitted by the company like petitioner and similarly other situated companies who are in the business of crude soya oil, cotton seed oil and doing refinery business and due to bogus Forms / non-verified C-Form, the State of Madhya Pradesh suffered a loss of more than ₹ 200 crores.
The fact that number of C-Forms were found fake as the same were not issued by the concerned department and rest of the C-Forms were not verified on the basis of verification report, we are of the view that no case to interfere with the order of reassessment and penalty, as prayed is made out - petition dismissed - decided against petitioner.
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2015 (5) TMI 1149
CENVAT credit - input - MS Plates, MS Joists, MS Channels etc - Held that: - the judgment of Hon’ble Rajasthan High Court in the case of Hindustan Zinc Ltd. [2006 (5) TMI 44 - HIGH COURT RAJASTHAN] is to be followed in the instant case, since this Tribunal falls under the jurisdiction of the said court, where Court decided that which is used for production of final product eligible for modvat credit - credit allowed - appeal allowed - decided in favor of appellant.
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2015 (5) TMI 1148
Promotion of Constables and Head Constables to the rank of Sub-Inspectors in the State of Uttar Pradesh - validity of selection and promotion process at various stages - Held that: - it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted.
The process of sealed cover procedure was devised to prevent any prejudice being caused to the persons against whom the disciplinary or criminal proceedings are pending. In the present case, it is nobody's case that such persons are prejudiced. Therefore, this contention does not hold any merit in the present case.
Awarding of consolidated marks by all the panelists in the interview - Held that: - if only consolidated marks are awarded at the interview, it becomes questionable, though not conclusive, whether each panelist applied his/her own mind independently - the Government Order dated 3.02.1999 was in continuation of the Government Order dated 23.01.1999, which was superseded expressly by Government Order dated 27.02.1999. The Government Order dated 27.02.1999 did not provide any condition that the marks were to be separately awarded by each interview panelist - it cannot be argued that the Government did not follow the rules framed by itself.
It is a settled law that in cases like the present one, where an Executive action of the State is challenged, Court must tread with caution and not overstep its limits. The interference by Court is warranted only when there are oblique motives or there is miscarriage of justice - In the present case, there is no oblique motive or any miscarriage of justice warranting interference by this Court - petition dismissed.
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2015 (5) TMI 1147
Penalty u/s 271(1)(c) - disallowance of interest u/s 36(1)(iii) - Held that:- The assessee has debited interest to the Profit & Loss Account of Dera Bassi Unit whereas the funds, in respect of which the interest was claimed, were used by Baddi manufacturing unit. AO estimated the interest on debit balances and noticed that the estimated interest was working out to more than interest in Dera Bassi unit and so he disallowed the interest claimed ip-so-facto resulted into retention of deduction under section 80IC. Therefore, an issue of proportionate disallowance of interest u/s 36(1)(iii). Since all the particulars of claim of interest were disclosed to the revenue and only proportionate interest have been disallowed, therefore, on mere disallowance of interest on estimate basis, ld. CIT(Appeals) was justified in canceling the penalty.
Penalty on addition made on account of Web Software Development Expenses - AO treated the expenditure to be capital in nature and allowed heavy depreciation which resulted into part addition. The assessee claimed the expenditure to be revenue in nature, however Assessing Officer took it to be capital in nature. Therefore, it was mere case of change of opinion and as such would not warrant levy of penalty. The ld. CIT(Appeals), therefore, correctly deleted the penalty on that addition.
Disallowance of expenses on account of re-allocation of expenses - assessee made allocation of expenses on actual basis whereas in the opinion of the Assessing Officer, it was done only to reduce taxable profit. With regard to the re-allocation of expenses of various units, there may be a difference of opinion as the Assessing Officer did not accept opinion of the assessee with regard to one unit but certainly it would not give rise for levy of the penalty against the assessee. The ld. CIT(Appeals) by following the decision in the case of Raj Overseas (2010 (7) TMI 553 - PUNJAB AND HARYANA HIGH COURT) and order of ITAT Chandigarh Bench in the case of Perfect Forgings (2011 (6) TMI 451 - ITAT CHANDIGARH) cancelled the penalty on this issue.
Levy of penalty on reduction of deduction u/s 80IC - gross tax payable on MAT i.e. 115JB income is higher, therefore, even after making some additions, there is no tax effect against the assessee for levy of the penalty - Held that:- Referring to the calculation sheet filed by the assessee, which is not in dispute, we find that issue is squarely covered in favour of the assessee by judgement of Hon'ble Delhi High Court in the case of Nalwa Sons Investment Ltd. (2010 (8) TMI 40 - DELHI HIGH COURT). Therefore, penalty cannot be levied against the assessee on all the additions maintained even after giving appeal effect of the order of ld. CIT(Appeals) and the Tribunal. We, accordingly set aside the order of ld. CIT(Appeals) and delete penalty even on the addition maintained in a sum of ₹ 62,44,417/.
Penalty on disallowance of carry forward of depreciation - Held that:- CIT(Appeals) considered this issue in detail and noted that the assessee had increased the claim of depreciation due to various disallowances because of which entire current year’s depreciation was absorbed in the current year itself. Therefore, it may be a mistake committed by assessee in computing the income. Therefore, penalty was correctly cancelled in the matter on claim of depreciation. Even otherwise, on the basis of computation of income as per MAT provisions, no penalty would be levied against the assessee. Therefore, this ground of appeal of departmental appeal is also dismissed.
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2015 (5) TMI 1146
Penalty u/s 271(1)(c) - disallowances under section 40(a)(ia) - Held that:- The assessee has disclosed the entire facts before the authorities below without concealing any income. The assessee made a claim of deduction in the return of income and explained the facts but the same were not accepted by the authorities below and additions have been confirmed. Therefore, it is a case of mere disallowance of expenditure without bringing any adequate material against assessee to prove that assessee has concealed the particulars of income or has furnished inaccurate particulars of income.
The assessee made a bonafide claim of deduction of the expenditure even though it was not acceptable to the revenue, would not lead to inference that assessee has concealed the particulars of income or filed inaccurate particulars of income. Nothing is brought on record if claim of assessee was incorrect in law or was malafide. - Decided in favour of assessee
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2015 (5) TMI 1145
Refund of excess excise duty paid - case of Revenue is that verification of duty paid documents at the consignee’s end, is required to be done under Rules 3 and 4 of the Cenvat Credit Rules - Held that: - Claim of refund on account of excess payment of duty, can only be verified from the Cenvat records maintained at the consignee’s end. Thus, findings in the impugned order regarding admissibility of the refund claim, subject to non-availment of Cenvat credit at the consignee’s end, is in conformity with law - it is observed that the verification of Cenvat credit records will reveal the position whether the duty burden has been passed on or not. Therefore, the original authority is directed to verify the relevant records to arrive at the conclusion whether the excess amount of excise duty paid by the respondent has been taken by the recipient, as Cenvat credit - Appeal allowed by wya of remand.
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