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Showing 101 to 120 of 1706 Records
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2016 (7) TMI 1612
CENVAT Credit - additional duty leviable under Section 3 of the Customs Tariff Act - N/N. 89/2005-Cus. dated 04.10.2005 - HELD THAT:- The fact is not under dispute that while assessing the Bills of Entry, the amount towards CVD and Cess have not been bifurcated by the Customs Authorities. Since, the entire disputed amount was reflected under the ‘CVD’ head in the Bills of Entry, taking of Cenvat Credit of such amount is in conformity with Rule 3 read with Rule 9 of the Cenvat Credit Rules - the Notification No. 89/2005-Cus. dated 04.10.2005 has specifically permitted an importer to avail Cenvat Credit of additional duty leviable under Section 3 of the Customs Tariff Act against the amount debited in the Duty Entitlement Passbook Script.
Since, no provisions of the Cenvat Statute have been contravened in this case, taking of disputed Cenvat Credit by the appellant is proper and justified - appeal Allowed - decided in favor of appellant.
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2016 (7) TMI 1611
Seeking unconditional release of imported goods - non-issuance of SCN within the mandatory time limit in terms of Section 110(2) of the Customs Act, 1962 - HELD THAT:- The Court is constrained to observe that there was no occasion for multiplicity of proceedings arising from the order dated 2nd June 2016 passed by this Court. If the Customs Department was aggrieved by any portion of that order, it could have proceeded to seek whatever remedies were available to it in accordance with law. There being no challenge to that order, the Department was bound to comply with it in letter and spirit - the Court directs that, in immediate compliance of its order dated 2nd June 2016, the goods in question shall be released to the Petitioner by the Customs Department unconditionally to the Petitioner through its authorized representative who will appear before the Deputy Commissioner of Customs at 11 am on 23rd July 2016. The Petitioner will furnish to the Deputy Commissioner Customs an undertaking by way of affidavit to fully cooperate in any proceedings that may be commenced under Section 124 of CA.
List on 29th August 2016.
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2016 (7) TMI 1610
Dishonor of Cheque - Discrepancies as regards the transaction for which the disputed cheque is alleged to be given - applicability of section 118 r/w with section 139 of the Act - HELD THAT:- It is now well settled that while the complainant is required to establish the case beyond reasonable doubt, the accused can discharge the burden on preponderance of probabilities. This can be done on the basis of the cross examination of the witness of the complainant and any other material available on the record and it is not necessary that for this purpose the accused should enter into the witness box. The question really is about the extent to which such presumption can operate and, can the benefit of such presumption be availed when the case set up by the complaint, is found to be not substantiated. At the cost of repetition, it is necessary to state that the case is that the amount of ₹ 2.50 crores was paid as consideration for purchase of iron ore which transaction never materialized and towards refund of the part of the consideration the cheque was passed. The poof of such a case presupposes that the payment by the respondent/complainant to the petitioner/accused is proved. In the present case admittedly the payment is made to Chowgule and Company and not to the accused and as noticed earlier, even that aspect is not proved on record, as has been admitted by PW 1 on basis of the statement Exhibit 58.
Though the respondent claims that the said transaction is the same transaction as in Exhibit 51, the agreement on the contrary shows that it is between M/s. Grand Resources and the petitioner.
The findings as recorded by the Courts below are against the weight of the evidence and not borne out of the record and are clearly unsustainable - Criminal Revision application is allowed.
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2016 (7) TMI 1609
Grant of anticipatory bail - maintainability of appeal before High Court without exhausting the remedy u/s.438 of Cr.P.C. before the jurisdiction Sessions Court - HELD THAT:- The intention of bringing out Section 438 Cr.P.C. is enabling each and every person in the country if under extraordinary circumstances under exigencies either to approach the Court of Sessions or the High Court which can be concurrently exercised by both the courts. Though such remedy, cannot be riddled down by imposing any extraordinary condition but still the Court can refuse to entertain the bail petition and direct the party to approach the Court of Sessions first because Section 438 of Cr.P.C. shall not be exercised as a matter of right by the party, though it can be invoked either before the Sessions Court or before the High Court. It is purely the discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the Court of Sessions and then come to the High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors.
The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition.
It is also worth to note here that the Sessions Court and the High Court are concurrently empowered to grant bail u/s.438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviated the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision.
The bail petition filed u/s.438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision.
Whether the petitioner has approached this Court with any such extraneous or special reason? - HELD THAT:- The conduct of A1 and the petitioner have to be tested during the course of full dressed trial. The only allegation against the petitioners herein who are A2 and A3 is that, they have threatened her with dire consequences of killing her if she enquire anything about A1 and that A1 to A3 have hatched conspiracy to do away with her life. These factual aspects have to be established during the course of full dressed trial. A1 has already been released on Bail, vide order dated 07.06.2016 - main allegation against A1 is that he has made attempts to kill her etc., But no such allegations are made against accused Nos.2 & 3 are concerned. Under the above said circumstances, there are no strong reasons to reject the bail petition to the present petitioners. In view of the same, the petitioners are entitled to be enlarged on bail on certain conditions.
The petitioners are entitled to be enlarged on bail - Petition allowed.
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2016 (7) TMI 1608
Addition on account of Royalty - revenue or capital expenditure - AR supported the order of the AO and submitted that Baxter International Inc. USA was in effect an AE of the assessee and the payment of royalty was actually a payment for the purchase of trade-mark/technical know-how under the garb of royalty - HELD THAT:- As perused the License Agreement dated 27th October, 2003 specially clause 2 which specifically excludes the right of the licensee to grant sub licenses under Patent Rights, Trademark Rights and Software Copyright Rights to third parties unless so authorized by the Licensor. Clause 7 of the agreement safeguards the licensor’s right to protect the patent rights, trademark rights and software copyright rights and know-how rights. Clause 9 provides that either party can terminate either the whole or part of the agreement upon service of 30 days’ prior notice to the other party and that the initial tenure of the agreement is for ten years which is extendable for one year every year subject to the termination by notice by either of the parties. However, no where does the agreement mention that Patent/Trademark/Software copyright/know-how is being purchased by the licensee/assessee and that the assessee will have an unfettered right over the same. The ld. DR could not point out to any clause in the agreement which would suggest that there was a transfer of ownership right and that by virtue of the agreement the assessee will become the owner of such trademark/ patent/technical know-how. It is undisputed that the royalty expenditure is a recurring expenditure in the present appeals and is payable for every year the technical know-how/patent/trade-mark continues to be used.
In the case of CIT vs. Lumax Industries Ltd. [2008 (3) TMI 679 - DELHI HIGH COURT], the assessee company entered into an agreement with M/s Stanley Electric Co. Ltd. (SECL) on year to year basis for acquisition of technical knowledge. The assessee claimed the said payment as revenue expenditure. The Assessing Officer disallowed the claim holding that by virtue of the agreement, the assessee had derived an asset of enduring nature. On appeal, the CIT (A) allowed the assessee's claim holding that the expenditure incurred by the assessee was a recurring expenditure and not a capital expenditure. The Tribunal upheld the order of the CIT (A). On Revenue's appeal to the High Court held it to be revenue expenditure.
Depreciation on UPS - Whether UPS formed integral part of the computer system as the same was being used only with computers and not otherwise and hence depreciation was rightly allowable at 60% instead of 15% as allowed by the AO - HELD THAT:- CIT (A) has relied on the judgment of the Hon’ble Delhi High Court in the case of CIT vs. BSES Yamuna Power Ltd. [2010 (8) TMI 58 - DELHI HIGH COURT] while deleting the disallowance. The ld. DR could not cite any other judgment where a different view has been held. Hence, we find no reason to interfere and dismiss ground no. 2 of the Department’s appeal.
Accrual of income - Addition on account of interest income - HELD THAT:- The breakup of the interest pertaining to the AY 2006- 07, 2007-08, 2008-09 & 2009-10 credited by the bank in its account has been given by the appellant as noted -. Since the appellant did not have any right to claim the interest, it did not have any income accrued to it on account of interest in the Asst. Years preceding 2009-10. However, since the TDS was deducted on the interest credited by the bank, the appellant has taken credit on the same in the ITRs for the earlier Asst. Years. Since the appellant has declared the interest accrued for the entire period in the AY 2009-10 when it got the right to interest income ,the action of the AO in assessing the interest credited by the bank in the AY 2007-08 is not in order. Had the appellant not claimed TDS deducted by the bank in the respective assessment years, the TDS would have been lost. As per the appellant-for the Assessment Year 2008-09 the AO has not made any addition on this account. Therefore the addition made by the AO is deleted and the ground of appeal is allowed
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2016 (7) TMI 1607
Addition u/s 40(a)(ia) - addition made on account of interest paid on EMI for purchase of vehicles - Assessee contended that since no amount was outstanding payable to the above parties as at the end of the year on 31st March, 2011, the assessee was not liable to deduct TDS from the payments made to the five parties during the year under consideration - HELD THAT:- We find that recently in RKP COMPANY VERSUS INCOME TAX OFFICER WARD 1, KORBA [2016 (7) TMI 447 - ITAT RAIPUR] similar issue decided in favour of assessee.
Further, the second proviso appended to Section 40(a)(ia) by the Finance Act, 2012, w.e.f. 01.04.2013, provides that where an assessee fails to deduct the whole or any part of the tax in accordance with the provisions of Chapter XVIIB, on any such sum, but is not deemed to be an assessee in default under the first proviso to sub Section (1) of Section 201, then for the purpose of this sub Section (1) shall be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the resident payee referred to in the said proviso.
We find that the assessee filed certificates from the Chartered Accountants of the five payee companies before the ld. CIT(A) to contend that as the payee companies have shown the amount of interest in the return of income filed and paid due taxes thereon, therefore, in view of the second proviso to Section 40(a)(ia) of the Act, no disallowance was exigible in the case of the assessee u/s 40(a)(ia) of the Act. The ld. CIT(A) has not adjudicated on this plea of the assessee while confirming the disallowance made by the AO.
Hon'ble Delhi High Court in the case of CIT vs. Ansal Land Market Township Private Limited [2015 (9) TMI 79 - DELHI HIGH COURT] has held that second proviso to Section 40(a)(ia) of the Act is declaratory and curative and has retrospective effect. Therefore, we hold that the disallowance cannot be made u/s 40(a)(ia) of the Act on this count also. Thus, this ground of appeal of the assessee is allowed.
Addition under the head “unsecured loan” and interest paid thereon - HELD THAT:- In the instant case, there was some enquiry made by the DDIT in the case of Shri Shailendra Biyani, where it was found that the company did not have the creditworthiness to advance loan and that the Directors of the Company did not appear before the DDIT. This information and material was not confronted to the assessee by the AO during the course of the assessment proceedings or even during the course of first appellate proceedings. Therefore, the said material cannot be used or read against the assessee, as the same has not been controverted to the assessee.
We rely on a very recent decision of H. R. Mehta vs. ACIT, [2016 (7) TMI 273 - BOMBAY HIGH COURT] wherein held that on a very fundamental aspect, the Revenue was not justified in making addition at the time of reassessment without having first given the assessee an opportunity to cross examine the deponent on the statement relied upon by the ACIT. Quite apart denial of an amount of cross examination, the Revenue did not even provide the material on the basis of which the Department sought to conclude that the loan was bogus transaction.
This is not having been done, the denial of such opportunity goes to the root of the matter and strikes at the very foundation of the reassessment and, therefore, renders the orders passed by the CIT(A) and the Tribunal vulnerable.
We hold that the addition of unsecured loan and interest paid thereon was not justified in the present case as the material collected in the case of Shri Shailendra Biyani in the case of the M/s. East West Finvest India Limited was neither confronted to the assessee nor the assessee was allowed any opportunity of cross-examination of the giver of the statement. - Decided in favour of assessee.
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2016 (7) TMI 1606
Seeking for adjournment of the case - earlier also several adjournments were sought and granted - proceedings in the suit got arrested as if "time" had been arrested - HELD THAT:- In the case at hand, the examination-in-chief continued for long and the matter was adjourned seven times. The Defendant sought adjournment after adjournment for cross-examination on some pretext or the other which are really not entertainable in law. But the trial Court eventually granted permission subject to payment of costs. Regardless of the allowance extended, the Defendant stood embedded on his adamantine platform and prayed for adjournment as if it was his right to seek adjournment on any ground whatsoever and on any circumstance. The non-concern of the Defendant-Petitioner shown towards the proceedings of the Court is absolutely manifest. The disregard shown to the Plaintiff's age is also visible from the marathon of interlocutory applications filed. A counsel appearing for a litigant has to have institutional responsibility. The Code of Civil Procedure so command.
In the case at hand, it can indubitably be stated that the Defendant-Petitioner has acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of civil litigation. We are constrained to say the virus of seeking adjournment has to be controlled. The saying of Gita "Awake! Arise! Oh Partha" is apt here to be stated for guidance of trial courts.
SLP dismissed with costs which is assessed at ₹ 50,000/-.
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2016 (7) TMI 1605
Addition on account of accrued interest on Non-Performing Assets (NPAs) - HELD THAT:- We find that similar issue as before us arose in ITO Vs. Shankarrao Mohite Patil Sahakari Bank Ltd. [2016 (3) TMI 910 - ITAT PUNE] and in ITO Vs. Samarth Sahakari Bank Ltd [2016 (3) TMI 910 - ITAT PUNE] relating to assessment year 2011- 12, order dated 10.02.2016 and Kolhapur Mahila Sahakari Bank Ltd. Vs. ITO [2014 (1) TMI 1728 - ITAT PUNE], relating t o assessment year 2009-10, vide order dated 29.01.2014. The Tribunal in turn following the ratio laid down by the Pune Bench of Tribunal in ACIT Vs. Osmanabad Janta Sahakari Bank Ltd. [2015 (3) TMI 886 - ITAT PUNE]
The Hon’ble Bombay High Court in CIT Vs. M/s. Deogiri Nagari Sahakari Bank Ltd. [2015 (1) TMI 1218 - BOMBAY HIGH COURT] has laid down the proposition that the interest accrued on NPAs is not taxable in the hands of assessee, in view of the guidelines issued by the RBI.
Following the same parity of reasoning, we hold that no addition is warranted on account of interest accrued on NPAs. Accordingly, we uphold the order of CIT(A) in deleting the addition made on account of interest accrued on NPAs. The grounds of appeal raised by the Revenue are thus, dismissed.
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2016 (7) TMI 1604
Tax deducted on the service charges paid for the services provided by Visa/Mastercard International - payment was not an expenditure in the hands of the assessee and had not been incurred for the purpose of the assessee’s business and consequently, the TDS paid was not an allowable deduction - HELD THAT:- In the course of assessment proceedings, the Assessing Officer noticed that assessee had paid tax in respect of the charges for services provided by Visa/Mastercard International on the ground that such an expenditure was borne out of contractual obligation. The claim of the assessee was that in terms of the agreement with Visa/Mastercard International, assessee was required to bear the tax liability on payment made by assessee to such companies and, therefore, during the year under consideration an amount was claimed as business expenditure on this count. The Assessing Officer, however, disallowed the expenditure on the basis of his stand in the earlier years.
CIT(A) noticed that the Tribunal in the assessee’s own case for 2012 (7) TMI 155 - ITAT, MUMBAI], [2012 (9) TMI 1065 - ITAT MUMBAI] and [2013 (5) TMI 532 - ITAT MUMBAI]has deleted such addition and following the aforesaid precedents, he has since deleted the addition in the instant year also.
A common point between the parties that the precedents relied upon by CIT(A) in order to delete the addition continue to hold the field and they have not been altered by any higher authority. As a consequence, in view of the aforesaid precedents, there is no error on the part of CIT(A) in deleting the addition, which we hereby affirm. In the result, appeal of the Revenue for Assessment dismissed.
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2016 (7) TMI 1603
Claim of compensation form United India Insurance Company Limited and India Transport Organization - amount claimed on the ground that there had been shortage/loss of 'All Aluminium Alloy Conductor' (AAAC) wire, which was supplied by the complainant to the Power Grid Corporation of India Limited (PGCIL) - Trucks shortage - transit-loss - HELD THAT:- In the instant case, the insurer was in custody of the policy. It had prescribed the Clause relating to duration. It was very much aware about the stipulation made in Clause 5(3) to 5(5), but despite the stipulations therein, it appointed a surveyor. Additionally, as has been stated earlier, in the letter of repudiation, it only stated that the claim lodged by the insured was not falling under the purview of transit loss. Thus, by positive action, the insurer has waived its right to advance the plea that the claim was not entertainable because conditions enumerated in duration Clause were not satisfied - In our considered opinion, the National Commission could not have placed reliance on the said terms to come to the conclusion that there was no policy cover in existence and that the risks stood not covered after delivery of goods to the consignee.
Loss as arising from surveyor's report - HELD THAT:- Though the said aspect has not been gone into by the National Commission, yet we find, the findings recorded by the State Commission are absolutely justified and tenable in law being based on materials brought on record in such a situation we do not think it appropriate that an exercise of remit should be carried out asking the National Commission to have a further look at it. In any case, the exercise of revisional jurisdiction by the National Commission is a limited one - we have perused the surveyor's report and scrutinized the judgment and order passed by the State Commission in this regard and we are completely satisfied that the determination made by it is absolutely impeccable.
The judgment and order passed by the National Commission in the batch of appeals is set aside - We have been apprised that 50% of the amount was deposited and the Appellant has withdrawn the said amount. The balance amount along with interest, as directed by the State Commission, shall be paid by the insurance company within four months from today - appeal allowed.
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2016 (7) TMI 1602
Violation of principles of Natural Justice - Rejection of the Election Petition - application filed by her under Order VII Rule 11 of The Code of Civil Procedure, 1908 not disposed off and was posted along with the main petition - denial of opportunity to file written statement - HELD THAT:- Once an application is filed under Order VII Rule 11 of the CPC, the court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint (Election Petition in the present case) is only to be rejected at the threshold. Therefore, the defendant is entitled to file the application for rejection before filing his written statement. In case, the application is rejected, the defendant is entitled to file his written statement thereafter. But once an application for rejection is filed, the court has to dispose of the same before proceeding with the trial court.
The procedure adopted by the court is not warranted under law. Without disposing of an application under Order VII Rule 11 of the CPC, the court cannot proceed with the trial. In that view of the matter, the impugned order is only to be set aside.
Denial of opportunity to file written statement - Alleged attempt on the part of the appellant for delaying the trial of the Election Petition - HELD THAT:- The said Application does not come within the purview of any of the situations under Order VII Rule 11 (a) to (f) of the CPC. Therefore, the application is rejected - the appellant is given an opportunity to file written statement in the Election Petition within two weeks from today.
Appeal disposed off.
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2016 (7) TMI 1601
Non-providing reasonable opportunity of being heard by the learned CIT(A) before deciding the appeal - prayer was made in the ground to restore the issue to the file of the learned CIT(A) - HELD THAT:- We accept the submission of the assessee that the appeal may be restored to the file of the learned CIT(A). We, therefore, in the interest of justice and equity, direct the learned CIT(A) to decide the appeal after giving due opportunity of being heard to the assessee.
Appeal is allowed for statistical purposes.
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2016 (7) TMI 1600
Charging of interest u/s 234C - point of dispute by the assessee is that while processing such return under section 143(1) interest u/s 234C was levied on account of shortfall in payment of advance tax on first and second installments, due on 15/09/2011 and 15/12/2011, in respect of gift of ₹ 10.00 crores claimed to have been received on 17/12/2011 - HELD THAT:- Section 209 of the Act provides the computational mechanism of calculating advance tax to be paid. Notably, section 209 envisages calculation of advance tax based on the ‘estimate of current income’ . A reading of section 209 would reveal that in order to calculate the amount of advance tax payable, an assessee is liable to estimate his income. Facts of the present case clearly show that the gift of ₹ 10.00 crores, which has been received by the assessee on 17/12/2011 could not have been foreseen by the assessee so as to enable him to estimate such income for the purpose of payment of advance tax on an anterior date, may it be 15/09/2011 or 15/12/2011.
In such a situation, the decision of the Hyderabad Bench of the Tribunal in the case of ACIT v. Jindal Irrigation Systems Ltd. [1995 (8) TMI 97 - ITAT HYDERABAD-A] relied upon by the appellant, clearly militates against charging of interest under section 234C of the Act. Therefore, in this background, the levy of interest under section 234C of the Act in the present case is untenable.
Plea of the Revenue that charging of interest under section 234C of the Act is mandatory in natures is concerned, the same in our view, cannot lead to a situation where levy of interest can be fastened even in situations, where there is impossibility of performance by the assessee. Charging of interest would be mandatory, only if, the liability to pay advance tax arises upon fulfilment of the parameters, which in the present case is not fulfilled on account of the peculiar fact situation. Thus, such plea of the Revenue is untenable. Decided in favour of assessee.
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2016 (7) TMI 1599
Validity of reopening of assessment u/s 147 - invocation of the jurisdiction u/s 148 on the basis of AIR information - entries relating to investment in Mutual fund etc. - HELD THAT:- Assumption of jurisdiction u/s 147/148 on the basis of AIR information was illegal inasmuch as it was simplify in the domain of suspicion and for verification of the source of investment made in Mutual funds, which is impermissible u/s 148. Section 148 does not permit verification, as rightly contended, as the same falls in the domain of section 143(2), after the return is filed. It is an undisputed fact on the record, that but for the AIR information, there was no other material with the AO to reach the requisite satisfaction u/s 148(2).
The above reasons are no reasons in the eyes of law, inasmuch as the source of investment is yet to be verified and explained, and it cannot be held as income escaping assessment for the purposes of section 148. For such a verification, the AO is to assume normal jurisdiction under section 143(2), after the return is filed. It is only during such regular assessment proceedings, that the source can be questioned, and deemed to be income u/s.68/69, in case no satisfactory explanation is offered by assessee.
In the absence of verification/explanation of the assessee in the course of assessment proceedings, it is premature to assume the same as 'income', much less for the purposes of section 148. Therefore, the AIR information is no tangible material to empower the AO to reach the requisite satisfaction as envisaged u/s 147/148. - Decided in favour of assessee.
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2016 (7) TMI 1598
TPA - AMP expenses - Existence of an international transaction - whether the Revenue has been able to discharge the initial onus of showing that there was an international transaction concerning the Assessee and its foreign AEs - benchmarking analysis by evaluating the AMP expenses incurred by the Assessee in relation to its total sales vis-à-vis its comparables - HELD THAT:- Application for exemption from filing certified copy of the impugned order is allowed.
Delay condoned.
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2016 (7) TMI 1597
Disallowance u/s.14A r.w.r. 8D - HELD THAT:- Window for disallowance u/s.14A of the Act is only to the extent of a portion of the tax exempt income and could not swallow the entire amount. If the contention of the Revenue is accepted disallowance would be much more than the claim of exempt income.
As relying on Joint Investments P. Ltd [2015 (3) TMI 155 - DELHI HIGH COURT] this is patently incorrect. Maximum amount that could have been disallowed u/s.14A and nothing more. Assessee is given relief to this extent.
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2016 (7) TMI 1596
Addition u/s 68 - disallowance u/s 40A(3) - HELD THAT:- From the arguments of the learned Authorized Representative and on examining the order of the Tribunal, it is apparent that the documents furnished by the assessee in the paper book was lost sight off and were not examined by the Bench on the earlier occasion and there is no discussion with respect to the same in the order of the Tribunal.
Therefore, in the interest of justice, we hereby recall the order of the Tribunal in order to examine the materials on record pointed out by the assessee and thereafter rectify the mistake if any, in the order of the Tribunal. The Registry is directed to post the appeal for hearing in due course and intimate both the parties.
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2016 (7) TMI 1595
Ex parte order passed by the tribunal - HELD THAT:- Assessment order was passed u/s 144 determining total income at ₹ 56.44 lac as against the returned income of Rs.Nil. The impugned order also came to be passed ex parte. The ld. AR has advanced reasons for the absence of the assessee before the authorities below, with which we are satisfied. Resultantly, the impugned order is set aside and the matter is restored to the file of AO for fresh decision after allowing an opportunity of being heard to the assessee. The ld. AR has undertaken to extend full cooperation to the AO in such fresh proceedings.
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2016 (7) TMI 1594
Promotion to promitees who are awaiting promotion - HELD THAT:- The learned Senior Counsel for the impleaded respondents in W.P.No.17251 of 2016 seeks to persuade us that as a temporary measure, the promotees who are awaiting promotion and may be nearing retirement should be permitted to be promoted against the post of direct recruits. We are afraid that this is something which we cannot permit because this is exactly what has created the controversy in the past.
The writ appeals and the writ petitions are disposed off with the direction to the State Government to initially wait for our pronouncement in respect of the writ appeal aforesaid and thereafter, proceed to act in terms aforesaid or begin de nova depending on the fate of the writ appeal - appeal disposed off.
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2016 (7) TMI 1593
Conviction for criminal contempt - Whether a case has been made out for interference with the order passed by the High Court convicting the appellant for criminal contempt and sentencing him to simple imprisonment for two months with a fine of ₹ 2,000/- and further imprisonment for two weeks in default and debarring him from appearing in courts in judgeship at Etah? - HELD THAT:- There is no merit in the contention of the appellant that there was delay on the part of the complainant Judge in sending the reference and he could have tried the appellant under Section 228 of the Indian Penal Code and the procedure prescribed under Code of Criminal Procedure. It is for the learned judge to decide as to whether action should be taken under the Act or under any other law - The High Court has rightly convicted the appellant under the Act after having come to a conclusion that denial of the incidents and allegations of malafides against the complainant Judge had been made by the appellant to save himself from the consequences of contempt proceedings. The appellant had refused to tender apology for his conduct. His affidavit in support of stay vacation/modification and supplementary affidavit did not show any remorse and he had justified himself again and again, which also shows that he had no regards for the majesty of law.
It is a well settled proposition of law that in deciding whether contempt is serious enough to merit imprisonment, the Court will take into account the likelihood of interference with the administration of justice and the culpability of the offender. The intention with which the act complained of is done is a material factor in determining what punishment, in a given case, would be appropriate. In the case at hand, the High Court has rightly held that the appellant was guilty of criminal contempt.
We are however, inclined to set aside the sentence for imprisonment in view of advance age of the appellant.
Whether on conviction for criminal contempt, the appellant can be allowed to practise? - HELD THAT:-Inspite of various observations no action appears to have been taken at any level. The result is that a person convicted of even a most heinous offence is eligible to be enrolled as an advocate after expiry of two years from expiry of his sentence. This aspect needs urgent attention of all concerned.
There are no reason to hold that the bar applicable at the entry level is wiped out after the enrollment. Having regard to the object of the provision, the said bar certainly operates post enrollment also. However, till a suitable amendment is made, the bar is operative only for two years in terms of the statutory provision - In these circumstances, Section 24A which debars a convicted person from being enrolled applies to an advocate on the rolls of the Bar Council for a period of two years, if convicted for contempt.
What is permissible for this Court by virtue of statutory appellate power under Section 38 of the Advocates Act is also permissible to a High Court under Article 226 of the Constitution in appropriate cases on failure of the Bar Council to take action after its attention is invited to the misconduct - apart from upholding the conviction and sentence awarded by the High Court to the appellant, except for the imprisonment, the appellant will suffer automatic consequence of his conviction under Section 24A of the Advocates Act which is applicable at the post enrollment stage also as already observed.
Conviction of the appellant is justified and is upheld - Sentence of imprisonment awarded to the appellant is set aside in view of his advanced age but sentence of fine and default sentence are upheld - Appeal disposed off.
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9911796707
