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2011 (9) TMI 1155 - SUPREME COURT
... ... ... ... ..... ents to pay any rates, taxes, cesses in respect of the property. All that clause V(4) of the lease deed provides is that the lessee should bear and pay the ZP cess and GP cess, if it is leviable under the respective enactments. 15. In view of the above, we accept the contention of the appellant that it is not liable to pay ZP cess or CP cess to the State Government under the lease deed. It is however made clear that if the said cesses (ZP cess and CP cess) become payable by the appellant by virtue of any amendment to the provisions of the respective enactments under which such cesses are leviable, then the appellant may have to pay the same. Be that as it may. 16. The appeal is therefore allowed. The judgment of the High Court is set aside. The writ petition filed before the High Court stands allowed and the demand notices dated (nil) July 1991 as amended on 28.10.1994 in regard to the period 1987 to 1992 is quashed in so far as the demand for payment of ZP cess and CP cess.
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2011 (9) TMI 1154 - BOMBAY HIGH COURT
... ... ... ... ..... Income Tax Appeal No. 3741 of 2010 in the case of The Commissioner of Income Tax Central 1 vs. Shri Jyotindra B. Mody and the same has been rejected by us today. For the reasons stated therein, the present Appeal is also dismissed with no order as to costs.
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2011 (9) TMI 1153 - PUNJAB & HARYANA HIGH COURT
... ... ... ... ..... nciples of which are applicable in this jurisdiction. Once the parties have contracted, then the petitioner cannot be permitted to wriggle out of its contractual obligation. The seller in Clause 2.7 has clearly represented that the liabilities are that of purchaser. 19. In view of the above, we do not find any merit in the present petitions. The same are accordingly dismissed. 20. However, before parting, we may record that the petitioner has raised an argument that the penalty consequent to non-deposit of either the Central or Sales Tax will not fall upon the petitioner, who is a transferee and not liable for any action of the original management which attracts penalty. Such argument is raised without any pleadings. Therefore, we leave that question open with liberty to the petitioner to make representation to dispute such claim before the departmental authorities and, if need be, to approach this Court against the action of the statutory departmental authorities.
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2011 (9) TMI 1152 - RAJASTHAN HIGH COURT
... ... ... ... ..... iberty to the petitioner to file petition under Section 482 Cr.P.C. to challenge that order. 4. As regards the argument that observation made in the order of this Court would adversely affect the case of the petitioner, if he now wishes to file a petition under Section 482 Cr.P.C. or a reference under Section 130A of the Customs Act or approach the Settlement Commissioner under Section 127B, we may only observe that whatever arguments were advanced, were considered and, in the process thereof, the arguments may not have been accepted but for doing so, the Court had to assign reasons for its conclusion. If, incidentally, it affects the petitioner in any other proceedings that he may now wish to initiate, that cannot be construed as an error apparent on the face of the record in the meaning of Order 47, Rule 1 of the Code of Civil Procedure so as to justify review of the order. 5. We do not find any merit in this review petition and the same is accordingly dismissed.
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2011 (9) TMI 1151 - ITAT CHENNAI
Monetary limit - maintainability of appeal - Circular No.5 of 2008 dated 15.5.2008 of CBDT applicability - Held that:- It is clear that tax, as per the definition, would include super-tax and also fringe benefit tax but not surcharge. Admittedly, here, the tax was only ₹ 2,90,250/- which is below the limit of ₹ 3 lakhs prescribed in the Circular for filing appeals before this Tribunal. Resultantly, we do not find any mistake in the order of this Tribunal much less any mistake apparent on record. Miscellaneous Petition filed by the Revenue stands dismissed.
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2011 (9) TMI 1150 - MADHYA PRADESH HIGH COURT
Whether the Debts Recovery Appellate Tribunal has power to condone the delay in filing of Appeal before it under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002? - Held that:- Appellate Tribunal has no power to condone the delay in filing of Appeal before it under Section 18 of the SARFAESI Act and answer the question in negative.
Since, Appeal before the appellate Tribunal was filed admittedly after the expiry of the prescribed period of 30 days the same has rightly been dismissed.
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2011 (9) TMI 1149 - KARNATAKA HIGH COURT
... ... ... ... ..... ed to the authorities, sub-section 3 of Section 73 comes into operation, which mandates that the authorities shall not served any notice under sub-section 1 in respect to the amount so paid and initiates proceeding to recover any penalty. In that view of the matter, the order passed by the tribunal is in accordance with law. The substantial questions of law framed are answered in favour of the assessee and against the revenue.
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2011 (9) TMI 1148 - BOMBAY HIGH COURT
... ... ... ... ..... considered in the context of a recovery certificate issued by the DRT in favour of the secured creditor and the claim based thereon. In the instant case what we are considering is a set off. 21 As far as set off is concerned, in law the principle itself is clear. It is a plea in defence, pure and simple which by adjustments would wipe of or reduce the claim in its usual sense and that is of statutory creation as in Order VIII Rule 6 of the CPC. It is a defence and a counter claim combined. Therefore, it cannot be put on a higher pedestal than what is contemplated and understood in the ordinary sense. That is how, there is a concept of an equitable set off. However, that by itself does not mean that the official liquidator can ignore the Companies (Court) Rules, 1959 and proceed on purely equitable considerations. Therefore, the set off cannot be as claimed by M/s.Metropolitan. 22 In the light of the above discussion, the report is made absolute in terms of prayer clause (a).
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2011 (9) TMI 1147 - SUPREME COURT
Interest on refund of excess electricity charges - Whether the tariff determination u/s 62 of the Electricity Act was in any way legislative or quasi-judicial - The Central Commission while determining the tariff, had determined the final tariff at a rate lesser than the pre-existing tariff, as a result of which NTPC was found to have collected excess amounts during this intervening period, and the Electricity Boards became entitled to get the refund/adjustment of these differential amounts. Thus, the amount overcharged in respect of Gandhar power station is to the tune of ₹ 460.52 crores and the one in respect of Kawas power station is ₹ 254.47 crores. The Central Commission had however disallowed the claim of the Electricity Boards for payment of interest on the differential amounts between (i) the tariff finally determined by the Central Commission and (ii) the pre-existing tariff continued by the Central Commission until the final determination of the tariff. There is no dispute that thereafter NTPC has duly and immediately adjusted the excess amounts in favour of the purchaser Electricity Boards in their subsequent bills.
HELD THAT:- NTPC had filed the tariff petitions duly as required by the Central Commission. The delay in the case of Kawas and Gandhar Power Stations was because of the Commission requiring them to appropriately devise norms and parameters. As far as Rihand Station is concerned, one of the beneficiaries, namely Rajasthan Rajya Vidyut Vitaran Nigam Limited had obtained stay of proceedings before the Commission from the High Court of Rajasthan. NTPC was not in any way responsible for these factors. Ultimately, the tariff was reduced, but the tariff charged by the NTPC in the meanwhile was in accordance with the rates permitted under the notifications issued by the Commission. It cannot, therefore, be said that NTPC had held on to the excess amount in an unjust way to call it unjust enrichment on the part of NTPC, so as to justify the claim of the Electricity Boards for interest on this amount. In the circumstances, it is not possible to accept the submission that the Appellate Tribunal erred in any way in declining to award interest under Section 62 (6) of the Act. There was however, an error on its part in granting the same under the concept of equity, justice and fair-play.
Hence, we allow the appeals filed by the NTPC and dismiss those which are filed by the Electricity Boards.As held by the Constitution Bench, PTC India Ltd. Vs. Central Electricity Regulatory Commission [2010 (3) TMI 1209 - SUPREME COURT] , price fixation is really legislative in character, but since an appeal is provided under Section 111 of the Act, it takes a quasi-judicial colour. That by itself cannot justify the claim for interest during the period when the proceedings were pending for the tariff fixation. The tariff that was being charged at the relevant time was as per the previous notifications. Once the tariff was finalized subsequently, NTPC has adjusted the excess amount which it has received. It cannot be said that during this period the NTPC was claiming the charges in an unjust way, to make a case in equity. Our attention has been drawn to the industry practice which also shows that on all such occasions interest has never been either demanded or paid when the price fixation takes place. As held by us hereinabove, claim for interest could not be covered under Section 62 (6). The provision for interest has been introduced by regulations subsequent to the period which was under consideration before the Commission.
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2011 (9) TMI 1146 - ITAT KOLKATA
... ... ... ... ..... account and straight away applied NP rate as disclosed by assessee in earlier year. The CIT(A) restricted the net profit at 1 by giving reasoning that assessee’s turnover for current year has increased to 5.73 times than earlier year and accordingly, he applied net profit rate to be reasonable at 1 of transportation charges. Even, during hearing, Ld. DR could not point out any infirmity in the order of CIT(A) and also the reasons for supporting the order of AO. We find that the assessee has filed complete statistics before the AO explaining why it had paid higher rate of hire charges and received lesser rate of hire charges as per load of metric ton as compared to last year. In view of these reasons and also the fact that the books of account were not rejected, find no reason to interfere in the order of CIT(A) and accordingly the same is upheld. Revenue’s appeal is dismissed. 5. In the result, appeal of revenue is dismissed. 6. Order is pronounced in open court.
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2011 (9) TMI 1145 - ITAT DELHI
... ... ... ... ..... he entirety of facts and circumstances we find no infirmity in the order of CIT(A) allowing the claim of the assessee. Accordingly we uphold the order of CIT(A) on this count for all the assessment years under consideration. 6. Apropos remaining ground, challenging the allowance of depreciation 60 on computer peripherals and accessories for A.Y. 2003- 04 & 2004-05, learned counsel for the assessee contends that the issue is now well settled by various courts including ITAT Delhi Benches. 7. Learned DR did not dispute this contention raised on behalf of the assessee. 8. We have heard rival submissions and perused the relevant record. In view of above, we see no infirmity in the order of CIT(A) in allowing depreciation 60 on computer peripherals and accessories for the assessment years in question and uphold the order of CIT(A). 9. In the result, revenue’s appeals for both the assessment years in question stand dismissed. Order pronounced in open court on 09-09-2011.
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2011 (9) TMI 1144 - ITAT CHANDIGARH
... ... ... ... ..... ) relied upon by the AO is not applicable to the facts and circumstances of the present case. In that case, there was no relation or the capacity of the person to give the money in gift. In the instant case, there is a very close relationship and the donor is wife's brother of the assessee. Considering the facts and circumstances of the present case, we fully agree with this observation of the CIT(A) that the assessee has not only proved the identity of the donor but also the capacity of the donor and genuineness of the transaction for the said gift of ₹ 10 lacs and, therefore, we uphold the order of CIT(A) and dismiss the ground No. 2 of the Revenue's appeal. C.O. No. 53/Chd/2011 13. At the time of hearing, Shri Sudhir Sehgal, learned counsel for the assessee did not press for the grounds raised in the cross-objection and accordingly, we dismiss the same as not pressed. 14. In the result, appeal of the Revenue and cross-objection of the assessee are dismissed.
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2011 (9) TMI 1143 - BOMBAY HIGH COURT
Prevention of Money-Laundering Act, 2002 - Held that:- If the appellants were eventually entitled for return of the deposit on the conclusion of the trial against the accused persons concerning the Scheduled Offence. The fact that the appellants are likely to suffer financial loss because of the difference of rate of interest cannot be the basis to hold that the Appropriate Authority could not have proceeded to provisionally attach the subject property, which, it had reason to believe, was proceeds of crime. Indeed, whether the appellants ought to be compensated and by whom is a matter which can be addressed at the appropriate stage; but, certainly, because the appellants are likely to suffer loss of interest to some extent cannot be the basis to doubt the action of the Appropriate Authority, which action is in conformity with the scheme of the PMLA.
That takes us to the argument that the order of provisional attachment does not disclose the satisfaction of the Authority that it has reason to believe that the properties were derived from proceeds of crime. This argument deserves to be stated to be rejected. In the earlier part of the judgment, we have already reproduced the provisional attachment order as well as the notice to show cause in its entirety. On conjoint reading thereof, it is amply clear that the Appropriate Authority has recorded satisfaction of having reason to believe that the properties were involved in money laundering and may have to be eventually confiscated, for which, were required to be provisionally attached. Hence, there is no substance even in this submission.
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2011 (9) TMI 1142 - COMPANY LAW BOARD KOLKATA BENCH,
... ... ... ... ..... iance. d) The respondents shall surrender their shares for cancellation so that the petitioners shall retain the present company after parting with Delhi and Baddy Units. e) The petitioners' group shall not use portrait or monogram of R-2 on any of their products as R-2 group is directed to float a separate company to carry on the business they have been already carrying. f) The respondents' group is at liberty to pursue their business at Delhi and Baddy Unit, but they shall not use R-1 company name, they are at liberty to float the company by giving some suffix or affix to the name Sharma Ayurved. g) The parties herein are hereby directed not to hold any board meeting effecting the Interest of any of the parties until division of the business is completed. The board is directed to limit decisions to meet the requirements of day to day affairs of the company. Accordingly, the petition is disposed of. Interim order, if any subsisting, stands vacated. Liberty to apply.
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2011 (9) TMI 1141 - BOMBAY HIGH COURT
Unexplained investment under section 69 - sale of the shares - penny stocks - Held that:- Similar question of law raised by the Revenue in the case of The Commissioner of Income Tax vs. Shri Mukesh Ratilal Marolia [2011 (9) TMI 919 - BOMBAY HIGH COURT] has been dismissed by this court as held sale transaction was genuine. ITAT is correct in holding that the purchase and sale of shares are genuine and therefore, the Assessing Officer was not justified in holding that the amount as unexplained investment under Section 69 cannot be faulted. - For the reasons stated therein, the present Appeal is also dismissed
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2011 (9) TMI 1140 - ITAT MUMBAI
... ... ... ... ..... ting and electroplating division and the other business constitute one business. It was also held that it was an expenditure incurred for the purpose of business and was not capital expenditure. The Tribunal also followed the decision of the Hon'ble Bombay High Court in the case of Bhor Industries Ltd. (supra), wherein it was held that amounts paid as retrenchment compensation was to be allowed as a deduction. In the light of the decision of the Tribunal referred to above, we are of the view that the deduction claimed has to be allowed. Since the facts and circumstances and the basis of addition made by the Revenue authorities are identical as it prevailed in asst. yr. 2001-02 respectfully following the decision of the Tribunal, we direct the AO to allow the claim for deduction as made by the assessee. Thus grounds Nos. 4 and 5 raised by the assessee are allowed. 38. In the result, the appeal by the Revenue is dismissed while the appeal by the assessee is partly allowed.
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2011 (9) TMI 1139 - SUPREME COURT
... ... ... ... ..... lities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit. 12. Now, the issue is whether punishment awarded to the appellant is disproportionate to the offence alleged. The appellant belongs to a disciplinary force and the members of such a force is required to maintain discipline and to act in a befitting manner in public. Instead of that, he was found under the influence of liquor and then indulged himself in an offence. Be that as it may, we are not inclined to interfere with the satisfaction arrived at by the disciplinary authority that in the present case punishment of dismissal from service is called for. The punishment awarded, in our considered opinion, cannot be said to be shocking to our conscience and, therefore, the aforesaid punishment awarded does not call for any interference. 13. In that view of the mater, we find no merit in this appeal, which is dismissed, but leaving the parties to bear their own costs.
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2011 (9) TMI 1138 - GUJARAT HIGH COURT
... ... ... ... ..... or respondent. To be placed for final hearing on 14.11.2011. By way of interim relief, till final disposal of the petition, there shall be stay of further proceedings pursuant to notice Annexure-A for reopening of the assessment.
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2011 (9) TMI 1137 - SUPREME COURT
... ... ... ... ..... rusted with the task of determination of tariff and as determination of tariff involves highly technical procedure requiring not only working knowledge of law but also of engineering, finance, commerce, economics and management, this Court was firmly of the view that the issues with regard to determination of tariff should be left to the said expert body and ordinarily High Court and even this Court should not interfere with the determination of tariff. 13. Looking to the aforestated legal position and in view of the technical aspect involved in the impugned order with regard to determination of tariff, which we prima facie find to have been determined in a just and proper manner, we are of the view that the conclusion arrived at by the Tribunal in the impugned orders do not appear to be unreasonable or unjustified and therefore, in our opinion the impugned orders require no interference by this Court and, therefore, all these appeals are dismissed with no order as to costs.
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2011 (9) TMI 1136 - ITAT KOLKATA
... ... ... ... ..... we are of the view that once the assessee has made investment out of his own savings prior to the date of limitation for expiry of investment of capital gain, the assessee has fulfilled the condition in view of the decision of Hon’ble Kerala High Court in the case of K. C. Gopalan (supra). Even the assessee has made investment prior to the expiry of limitation, and the provisions of section 54F(1) clearly suggests that even the investment can be made within a period of one year before or two years after the date on which the transfer took place purchased or within a period of three years after that date constructed, but in the present case the house is constructed within three years and investment is also made within three years. Hence, we are of the view that the assessee is eligible for section 54F exemption and we allow the same. Appeal of the assessee is allowed. 4. In the result, appeal of the assessee is allowed. 5. Order is pronounced in open court on 09.09.2011
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