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Showing 121 to 140 of 1750 Records
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2018 (1) TMI 1635
Rectification of mistake u/s 254 - Exemption u/s 11 - assessee has not exercised any option u/s. 11(1) - HELD THAT:- We find that this Tribunal in the aforesaid order has passed an elaborate and well reasoned order. The issue in that case was chargeability of income in the hands of the assessee which the assessee has claimed that the same had not accrued to the assessee.
As merit the assessee that the tribunal should have recorded that there was such an implied exercise of option by the assessee - tribunal has properly appreciated the concerned section and the entire facts and circumstances. The tribunal had clearly noted that the assessee has sold the property - The assessee had not offered the same for taxation. When confronted in this regard, the assessee came up with an addendum to the agreement by which the sale was registered. This addendum was an unregistered document and totally self-serving document by way of which the assessee intended to defer the accrual of the income. All along assessee and the Counsel had been pleading that the said income had not accrued. Authorities below had to refer in the case of Sumati Dayal [1995 (3) TMI 3 - SUPREME COURT] to reject this contention of the assessee. Hence, it is clear that the assessee was found to have entered into an activity which was colorable in nature.
As observed that the assessee has not followed the relevant mandate of law. The reference of amended section as pointed out by the assessee does not point out any error whatsoever, as there is no material difference. Hence, in our considered opinion, there is no mistake apparent from the record liable for rectification u/s. 254(2). In our considered opinion, what the assessee is seeking is re-appreciation of the facts which is not mandated under the provisions of section 254(2). Assessee’s miscellaneous petition dismissed.
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2018 (1) TMI 1634
Assessment order passed against the dead person - HELD THAT:- Assessment order in both the assessment year, against the dead person (deceased assessee) which is void ab initio. Hence, we accepted the contention of assessee that both the assessment orders are invalid. As we have accepted the legal contention the assessee and allowed both the appeals of the assessee.
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2018 (1) TMI 1633
Clandestine removal - Cigarettes - approval of Central Excise officer for removal of cigarettes - HELD THAT:- It appears that the appellant has started its manufacturing activity in the month of June, 2008 and search was conducted in the month of October, 2008. Cigarettes are excisable items where the representative of the Excise Department has the physical control as per the Central Excise law. Thus, the Central Excise officer is posted in the factory, so, no cigarettes can go outside without his approval. The statement of the personal incharge was recorded where they accepted that plane brand cigarette was manufactured. The department has not made out any investigation from the buyers. For the so-called clandestine removal, no investigation was made out. No attempt was examined for the consumption of raw material, electricity, manpower etc. Thus, there is no proof of clandestine removal of the goods.
Appeal dismissed.
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2018 (1) TMI 1632
Validity of detention order - HELD THAT:- Having regard to the facts and circumstances of the present case, particularly the period which has gone by after the impugned order, no further order is necessary.
Appeal dismissed.
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2018 (1) TMI 1631
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- It is by now settled legal position that disallowance under section 14A of the Act cannot exceed the related exempt income, and that in a case in which the assessee does not have earned any tax exempt income in the particular year, the disallowance under section 14A of the Act cannot be made either - Respectfully following the above legal position and having noted that the assessee did not have any tax exempt income during the relevant previous year, we uphold the grievance of the assessee and delete the impugned disallowance.
Disallowance of entertainment exemption tax - whether it was a revenue receipts by observing that the exemptions was availed by the assessee after the commencement of commercial operations of the multiplexes? - HELD THAT:- We see no reasons to take any other view of the matter than the view so taken by the co-ordinate bench in assessee’s own case for the immediately preceding assessment year. Respectfully following the same, we confirm the action of the ld. CIT(A) who direct the A.O. to treat the amount as a capital receipt who had merely followed the stand in the assessment year 2010-11. Grievance of the Assessing Officer is accordingly rejected.
Employee’s stock option plan as an allowable expenditure u/s.37(1) - HELD THAT:- The Hon’ble High Court of Madras in the case of PVP Ventures Ltd [2012 (7) TMI 696 - MADRAS HIGH COURT] has allowed such claim as business expenditure and the Hon’ble High Court of Delhi in the case of Lemon Tree Hotels Ltd. [2015 (11) TMI 404 - DELHI HIGH COURT] has followed the decision of the Hon’ble High Court of Madras held that cost of ESOP could be debited in Profit and Loss account of the assessee. Respectfully following the aforementioned decisions, we direct the A.O to allow the claim of deduction on account of remuneration to ESOP - Decided against revenue.
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2018 (1) TMI 1630
Condonation of delay in filing appeal - Duty liability - parts of dumpers and others imported, further repacked and labelled by the appellant and sold - HELD THAT:- The civil appeal(s) is/are dismissed on the ground of delay.
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2018 (1) TMI 1629
Disallowance u/s 14A r.w.r. 8D - As argued assessee has reserves and surplus far in excess of the investment made in the year during the relevant assessment year - HELD THAT:- As decided in own case [2017 (8) TMI 1449 - RAJASTHAN HIGH COURT] we do not find any mention of the reasons which had prevailed upon the Assessing Officer, while dealing with the Assessment Year 2002- 2003, to hold that the claims of the Assessee that no expenditure was incurred to earn the dividend income cannot be accepted and why the orders of the Tribunal for the earlier Assessment Years were not acceptable to the AO, particularly, in the absence of any new fact or change of circumstances.
Neither any basis has been disclosed establishing a reasonable nexus between the expenditure disallowed and the dividend income received. That any part of the borrowings of the Assessee had been diverted to earn tax free income despite the availability of surplus or interest free funds available remains unproved by any material whatsoever. While it is true that the principle of res judicata would not apply to assessment proceedings under the Act, the need for consistency and certainty and existence of strong and compelling reasons for a departure from a settled position has to be spelt out which conspicuously is absent in the present case. - Decided in favour of the assessee
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2018 (1) TMI 1628
Scope of agreements - memorandum of understanding was different - agreement for underwriting commission - HELD THAT:- In the instance case the main controversy is pertaining to the agreement between the service provider and service recipient. It is the allegation that in the memorandum of understanding, the scope has been enhanced and the new document has been given at the time of adjudication. The contention of the department is that both the agreements has different contents. When it is so, the impugned order is set aside and matter remanded to the original authority to verify the genuineness of the agreement and decided the issue denovo but by providing an opportunity of hearing to the respondent.
Appeal allowed by way of remand.
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2018 (1) TMI 1627
Validity of assessment order - re-doing of assessment denied on the ground of time limitation as was filed beyond the time limit of five years - Section 27 (1) of the TNVAT Act - HELD THAT:- The original assessment order was passed on 10.06.2011, and the time limit of five years expires on 09.06.2016. Therefore, the assessment for the relevant year could not have been reopened and redone. The respondent cannot place reliance on the amendment to Section 27 of the TNVAT Act, which was brought about by Act 23 of 2012, with effect from 19.06.2012, and therefore, such amendment can be only on prospective. Hence, the respondent cannot state that the period of limitation is six years.
This very issue was decided by the Court, in the case of M/S. UNIVERSAL ABRASIVES VERSUS THE COMMERCIAL TAX OFFICER [2013 (10) TMI 440 - MADRAS HIGH COURT], which decision has attained finality, and accepted by the Department. Thus, on facts, the revision of assessment order is without jurisdiction, as it is barred by limitation.
Petition allowed.
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2018 (1) TMI 1626
Disallowance u/s 14A r.w,r. 8D - assessee could not establish one-on-one nexus between the own fund/ non-interest bearing fund with investments either during the assessment proceedings or at the appellate stage - CIT-A deleted the addition - HELD THAT:- After evaluating the orders passed by ld. CIT(A), we are in agreement with this proposition that when both borrowed and own funds are available and the own funds and interest free loan exceeds investment, the presumption can very well be made that investments have been made from interest free funds and not from borrowed funds
From the facts as well as documents placed on record, we noticed that the assessee had made huge investment as per profit and loss account and necessarily expenses must have been incurred towards undertaking these transaction / activities.
Thus , in order to maintain consistency and judicial discipline , end of justice will be met in the instant case if further disallowance of expenditure u/s 14A is kept at an additional amount of ₹ 5,00,000/- towards administrative/misc. expenses to be added to the income of the assessee . This is in view of the non recording of proper satisfaction by the authorities below as to the incorrectness of the claim of the assessee’s claim and also this disallowance u/s 14A so upheld by us is in consonance with the decision of Hon’ble Supreme Court in the case of Godrej and Boyce Manufacturing Company Ltd. v. DCIT [2017 (5) TMI 403 - SUPREME COURT]. We order accordingly.
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2018 (1) TMI 1625
Accrual of income - Interest accrued on NPAs - HELD THAT:- As decided in own [2016 (7) TMI 1605 - ITAT PUNE] 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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2018 (1) TMI 1624
Conspiracy - bogus signatures in relation to the disputed land - the grievance of the complainants was that the named persons conspired together and snatched away from the complainants their aforementioned valuable land by committing fraud, cheating, deception, breach of trust etc. on them - HELD THAT:- The High Court failed to see the extent of its jurisdiction, which it possesses to exercise while examining the legality of any FIR complaining commission of several cognizable offences by Accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate Court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof.
At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the Complainants and vice-versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material - once the Court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code.
Though learned senior Counsel appearing for the parties argued the issues touching the merits of the case by referring to hundreds of documents but, in our view, it is wholly unnecessary to enter into the factual arena once we record a finding that a prima facie case is made out on reading the FIR including the documents enclosed therein - the appeals filed by the complainants are allowed.
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2018 (1) TMI 1623
Validity of the assessment proceedings u/s. 153A - HELD THAT:- As examined the orders of the lower authorities and we find that for AY 2012-13 return was filed on 27.09.2012 and for AY 2013-14 on 20.09.2013. Before concluding the assessment proceedings, the assessee was searched on 07.12.2012. As per provisions of section 153A of the Act, wherever assessment u/s. 153A is required to be framed consequent to the search, pending assessment shall abate and assessment is to be framed u/s 153A r.w.s. 143(3) of the Act. Under these circumstances, we find no infirmity in issuance of notice u/s. 153A of the Act. We therefore reject this ground of assessee raised in this regard.
Disallowance of business promotion expenses claimed u/s. 37 - expenditure was incurred on Doctors not allowable as deduction under the provisions of section 37(1) - AO has observed that the details of business promotion expenses incurred by the assessee on various Doctors is not available - AO further took a note of CBDT Circular No.5/12 dated 01.08.2012 wherein it was clarified that u/s. 37 of the Act such type of expenditure which are prohibited by law cannot be allowed - HELD THAT:- Assessee has furnished the details of persons to whom the stunts were sold and the AO has collected the evidences only from few persons. The contention of the assessee that sometime discounts were given in the invoice itself were also not properly appreciated or examined by the AO. When certain hospitals have categorically stated that there are two types of patients and one type of patient cashless treatment is to be given by the hospital in that case the hospital purchase the stunts from the assessee company and wherever the cashless treatment is not given, the patient is required to purchase the stunts.
The stunt would be directly sold to the patient and the corresponding entries with regard to sale of the stunt is not recorded in the books of accounts of the hospital and the hospital representatives collect the discount by the company agreed upon given by the company. These aspects need to be examined by the AO. In the light of these facts, we are of the considered view that the issue was not been properly examined by the lower authorities and they have disallowed the claim of the assessee by making superficial observation. Therefore, in the interest of justice, we set aside the order of the CIT(A) in this regard and direct the AO to readjudicate the issue after making necessary enquiry and verification. If the assessee succeeds in establishing that most of the time the discount was given in the invoice itself, the same may be allowed without making a further necessary enquiry.
Disallowance of bad debts written off - As observed that assessee has not established that amount has gone bad inspite of all efforts taken by him - HELD THAT:- Nothing has been established by the Revenue that condition stipulated under section 36(2) was not fulfilled with respect to any of the debts which were written off by the assessee during the previous year. Under these circumstances, we are of the view that disallowance made by the Revenue authorities is incorrect as the assessee is only required to write off the bad debts and is not required to establish that it has become really bad. Accordingly, we set aside the order of the CIT(A) and direct the AO to allow the claim of bad debt raised by the assessee.
Unaccounted cash during the course of search - assessee is before us with the submission that assessee has explained the source of availability of cash but it was not appreciated by the AO - Cash payment by patient’s made to hospital by some insurance companies - HELD THAT:- or the first type of patient who made cash payments whenever any stunt is deployed in the patient, the assessee company directly sells and places the stunts to patient and patient directly make the payment to the company. Company representatives comes every fortnight or monthly and collect the payment. This explanation was never examined or enquired by the AO. It was further contended that the reply given actually confirms that there were cash collections out of sales and in so far as PGIMER is concerned, it was contended that money was collected on 06.12.2012. Though the hospital has denied the payment made in November 1012 but the same payment was made to the assessee. Since the sufficient evidence was placed on record, AO should have examined and enquired into the genuineness of these statements before making any addition. In the light of specific stand taken by the assessee, we are of the view that explanation furnished by the assessee should have been examined by the lower authorities before making addition of the cash found during the course of search. Since addition was made without making necessary enquiry, we set aside the order of the CIT(A) and restore the matter to the AO to re-examine the availability of cash during the course of search after making a necessary enquiry in the light of the explanations furnished by the assessee
Cash deposit in the bank account - AO noted cash of ₹ 10 lakh was deposited in the bank account but no corresponding entry was found in the cash book - HELD THAT:- We find that assessee has contended before the AO that it was on account of inadvertent mistake, the corresponding entry of deposit of cash was not made on 02.08.2011 in the cash book but it was done on 29.08.2011 though there was no deposit of cash in the bank. But these explanations of the assessee was not examined by the AO nor by the CIT(A). In the light of these facts, we are of the view that since the issue was not properly examined by the lower authorities, matter should be sent back to the AO to readjudicate the issue in the light of assessee’s contentions. Accordingly, we set aside the order of the CIT(A) and restore the matter to his file to readjudicate the issue afresh after affording opportunity of being heard to the assessee in the light of assessee’s contentions.
Undisclosed cash sales - assessee is before us with the submission that assessee’s representatives have collected the cash from Hissar hospital and same was entered in books on 24.03.2011 and as regards the cash collected from PGIMER the same was recorded in books on 14.04.2011. It was recorded in the books as communicated by the representatives, however, the cash remained in his possession at Delhi and he sent mail to Bangalore Office of handing over the cash to Mukesh Yadav at Delhi - HELD THAT:- We find that this explanation of the assessee was not examined by the AO by making the necessary enquiry from the concerned parties. Therefore, we are of the view that the matter should be sent back to the AO for readjudication. Accordingly, we set aside the matter to the AO for readjudication of the issue in the light of assessee’s contentions after affording opportunity of being heard to the assessee.
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2018 (1) TMI 1622
Addition on account of motor accident claims - HELD THAT:- As decided in own case [2013 (1) TMI 758 - ITAT AHMEDABAD] issue is covered in favour of the assessee wherein the Tribunal has held that merely because the MACT awards are booked by the assessee at a later point of time than the date of the award cannot be reason enough to decline the claim for deduction in respect of these awards. It is sometimes possible, rather its inherent mechanism of the system as it exists, that sometimes there is considerable delay in communicating the awards granted by MACT. The awards are generally conveyed through the lawyers representing the assessee and it does take time in many cases.
It is not the case of the AO that the subsequent claims are duplication of claims in respect of the same liability, and the assessee does not stand to gain as a result of this delay in accounting. In any event, the quantification of claims is verified by the statutory auditors as also the CAG audit teams, and the same method of accounted is being followed by the assessee for last 50 years. As there is no change in method of accounting, as there is no duplication of claims, and, as assessee does not anyway gain anything from delaying accounting for these claims, we see no reasons to reject the claims merely because these claims are accounting for, in the books of accounts, at a point of time later than awards being granted i.e. when the assessee gets to know about the same. Grievance of the AO, regarding crystallization of liability, does not, therefore, survive any longer. In view of these discussions, as also bearing in mind entirety of the case, we approve the conclusions arrived at by the CIT(A) and decline to interfere in the matter - Decided in favour of assessee.
Income from license fees of canteen - business income OR income from house property - HELD THAT:- As decided in own case [2013 (1) TMI 758 - ITAT AHMEDABAD] Admittedly, the major part of the income for the licence fee of canteen is not from staff, but from outsiders and hence this judgment is not applicable to this receipt at all, and even for the receipt of rent on account of staff quarter, the judgment is not applicable because it could not be shown by the learned AR of the assessee that the facts are identical. Regarding the argument that this income was taxed under the head income from business in earlier years, we find that on the plea of consistency, it cannot be held that if a mistake is committed by the AO in earlier years, the same should be perpetuated. This is not case of the assessee that the rental income is not in respect of house property owned by the assessee, and hence in our considered opinion, this rental income is taxable under the head income from house property, as has been held by the authorities below, and hence, we do not find any reason to interfere with order of the learned CIT(A) on this issue, and this ground of the appeal of the assessee is dismissed. - Decided in favour of revenue.
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2018 (1) TMI 1621
Real v/s hypothetical income - Addition on account of accrued interest on NPA account - Mercantile system of accounting - HELD THAT:- In this case, appellant is a co-operative society is assessed to tax and engaged in the business of banking and governed by the banking Regulation Act, 1949. Return of income for assessment year under consideration was e-filed declaring total income at ₹ 2,59,94,100/-. The AO vide order u/s.143(3) of the Act dated 11.03.2015 assessed the total income of ₹ 3,13,72,830/-.
It is also held that in the case of banking companies, any interest accrued on advances classified as non-performing is taxed in the year in which the same is actually received. The theory of only real income is to be taxed is a settled law and therefore notwithstanding the appellant has been following mercantile system of accounting, the appellant could be taxed on the real income and not on the hypothetical income.
Disallowance u/s 14A - Assessee stated that the AO has not made any such observation to this effect that he was not satisfied with the correctness of the claim and just mechanically worked out the disallowance - HELD THAT:- Section 14A has not confirmed specific power to the AO to assume that a part of the expenditure must have necessarily been incurred to earn exempted income which he can estimate and disallow. The AO has no authority to estimate the expenditure which the appellant would have, in his opinion, incurred in relation to the exempted income - Since in the past similar additions were deleted by the CIT(A) and thereafter confirmed by the Hon’ble ITAT Bench. We are not inclined to interfere in the order passed by the ld. CIT(A). In our considered opinion, ld. CIT(A) has passed detailed and reasoned order which does not require any kind of interference at our end. - Decided against revenue.
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2018 (1) TMI 1620
Levy of Service Tax - works contract - construction of furnaces, plants, cast house etc. - HELD THAT:- Hon’ble Supreme Court in the case of Commissioner of Central Excise, Kerala vs Larsen & Toubro Ltd., [2015 (8) TMI 749 - SUPREME COURT], has held that prior to June, 2007 the ‘Works Contract Services’ were not subjected to Service Tax.
The matter is remanded to the original authority to decide the issue de novo in the light of the law laid down by the Hon’ble Supreme Court in the case of Larsen & Toubro Ltd. - appeal allowed by way of remand.
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2018 (1) TMI 1619
Ex-parte/ad interim order restraining the Defendant Club from conferring permanent membership status on any UCP/Green Card Holder, till pendency of the Suit - ex-parte/ad interim/interim order that till the disposal of the present Suit, the Defendant Club should accord UCP/Green Card status on the children of the Plaintiffs.
Whether the Plaintiffs have made out a prima facie case for grant of an ad interim injunction and whether the balance of convenience is in favour of grant of injunction to restraint the Club from granting permanent membership to the UCPs/Green Card Holders? - HELD THAT:- The case of the Plaintiff inter alia is that, contrary to the Articles of Association, the Club is granting permanent membership in the NG category to the UCPs/Green Card Holders out of turn by considering their applications on a priority basis and not on the basis of the date of application in the NG category at par with the general applicants in the NG category. The stand of the Club inter alia is that NG category comprises of 50% of the permanent membership and out of this 50% half (i.e. 25% of the entire permanent membership) has been reserved for the UCPs/Green Card Holders and the UCPs/Green Card Holders are considered for this 25% membership on the basis of date of their application.
Article 4, lists out the five classes of members, one of which is Permanent members, with which the parties are concerned. Article 7 requires every application for membership to be entered in a Candidate's Book. As per the Club, initially there was only on Candidates Book. Subsequently a separate Candidate's Book was maintained for general applicants in NG category and the UCPs/Green Card Holder applicants. On an objection by some members, once again, a common Candidate's Book is being maintained but a different colour ink is used for entering the details of a general applicant and the UCPs/Green Card Holders (reference drawn to Minutes of meeting dated 17.10.2013) - Article 8 (7) stipulates that the General Committee shall maintain the distinctive character of the Club and regulate the balloting in a manner that the proportion of the members in the Government Category continues to be about half - Articles 12 and 13 provide for permitting inter alia Candidates whose names are up for election, dependents of members and son of a member who has applied for permanent membership, the use of facilities of the Club - Article 16 restricts the right of voting, on any matter affecting the interests or management of the Club, to only permanent members. In terms of the Articles of Association, UCPs/Green Card Holders virtually have all rights and enjoy nearly all facilities of the Club except voting rights.
Articles of Association do not provide for any separate class of members or reservation for UCPs/Green Card Holders. The Club contends that such a reservation has been accorded by the General Committee through its various meetings - In the meeting held on 15.03.1978, automatic UCP status was granted to an applicant (member's son) who on attaining the age of 21 made an application, provided he satisfied the conditions of a dependent member. Minutes of meeting dated 15.11.1983 stipulated that for grant of UCP status, an application for permanent membership would be required to be made. However, he would be granted permanent membership in due course. A circular is stated to have been issued on 22.05.1984, reserving 20% permanent membership for UCPs, which was subsequently increased to 25%.
The learned Trial Court, in the impugned order after noticing the Articles of Association has prima facie held that the concept of grant of membership out of turn to Green Card Holders / UCPs has been evolved only through, decisions / bye-laws made in General Committee Meeting - By creating a category of members under Green Card Holder / UCPs meant for dependents of members, another elitist class has been created which have got membership by way of fastest method only because they happen to be the legal heirs of a member. This provision has acted against the interests of the members of waiting lists who themselves are eligible for membership by virtue of their individual eligibility. These bye-laws and decisions in General Committee meetings which bestows "special status" to the dependents of existing members in conflict with eligible category of a person of waiting list cannot be prima facie held to be in accordance with the spirit of AOA which do not recognize the categories of Green Card Holder / UCPs. Further, grant of permanent membership on priority basis to Green Card Holder/ UCPs has its own cascading effect because these members would attain permanency at a very young age, therefore, their off-springs would also in-turn get similar benefits. This kind of bye-law/rule will one day turn AOA otiose and are against the interest of public at large as well as Plaintiffs.
Admittedly, the Articles do not create a separate class of members or accord priority to any special class of individuals in getting membership, the same has been done only through various meetings - the Green Card Holders / UCPs enjoy virtually all facilities of the Club, except voting rights on any matter affecting the interests or management of the Club. No irreparable loss and injury would be caused to the Green Card Holders / UCPs in case their permanent membership is deferred pending disposal of the Suit. On the other hand, if permanent membership is granted to Green Card Holders / UCPs out of turn then irreparable loss is likely to be caused to the general applicants in the NG category. Balance of convenience is also in favour of the Plaintiffs and in favour of grant of ad-interim injunction.
There are no infirmity, in the impugned order dated 30.11.2016, in so far as it relates to the application under Order XXXIX rules 1 & 2, and restrains the Club from granting out of turn permanent membership to Green Card Holders / UCPs and directs that the permanent membership already granted to any Green Card Holders / UCPs, after the institution of Suit, would be subject to the outcome of this Suit. However, as the case of the Club is that 25% reservation has been lawfully carved out for Green Card Holders / UCPs, it would be expedient to direct that pending disposal of the Suit, the Club shall not consider the applications of General applicants in the NG category, for grant of permanent membership, in excess of 25% of the total permanent membership - petition are disposed of upholding the impugned order dated 30.11.2016 dismissing the application of the Club under Order VII rule 11 and allowing the application of the Plaintiffs, under Order XXXIX rules 1 & 2, restraining the Club from granting out of turn permanent membership to Green Card Holders / UCPs and directing that the permanent membership already granted to any Green Card Holders / UCPs, after the institution of Suit, would be subject to the outcome of the subject Suit. The interim order is, however, modified directing that pending disposal of the Suit, the Club shall not consider the applications of General applicants in the NG category, for grant of permanent membership in excess of 25% of the total permanent membership. There shall be no orders as to costs.
It is clarified that the observations in the impugned order dated 30.11.2016 and the present order are prima facie and nothing stated therein shall come in the way of the consideration, by the Trial Court, of the merits of the respective contentions after trial - In view of the facts and circumstances of the case, the learned Court is requested to expedite the trial of the Suit and endeavour to dispose of the Suit within a period of nine months from today.
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2018 (1) TMI 1618
Addition u/s 68 - Bogus share capital and share premium received by assessee from the 11 private Limited companies - genuineness of the transactions and creditworthiness of the subscribers to the shares not proved - HELD THAT:- Assessee has completely produced the evidences before the AO i.e. the identity of the shareholder by filing the registered address with ROC, PAN No. along with copy of returns of income furnished with particular Ward of the department of the investors. The assessee has also received money from shareholders through account payee cheque and issued documents such as share certificate, return of allotment filed with ROC forms which were filed before the AO. The assessee has also filed copies of bank statement of the subscribers showing that it had sufficient balance in its accounts to enabled the subscriber to subscribe the share capital. In view of these facts and circumstances, once the AO has not rebutted the evidences, the AO cannot disbelieve the same.
As relying on M/S. GAGANDEEP INFRASTRUCTURE PVT. LTD. [2017 (3) TMI 1263 - BOMBAY HIGH COURT] in view of the voluminous documentary evidence, only because those persons had not appeared before the AO would not negate the case of the Assessee.
We have also made enquiry from the learned Sr. Departmental Representative, whether the investors or this company is a Shell company or in the list prepared by Ministry of Corporate Affairs, Govt. of India. The learned Sr. DR, stated that this information is not available with the department. We made enquiry from the learned Counsel for the assessee whether this company has been strike off from the Registrar Of Companies or not, the learned Counsel stated that it is very much on the register of Registrar Of Companies. In view of these facts, we reach to a conclusion that this is existing company and even the investors are existing. - Decided against revenue.
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2018 (1) TMI 1617
Validity of Re-opening of assessment - assessee requesting for the reasons recorded for the purpose of re-opening denied - HELD THAT:- Revenue has not been able to produce any evidence to show that the reasons recorded had been provided to the assessee as prayed for in its letter. This being so, respectfully following the decision in the case of Videsh Sanchar Nigam Ltd. [2011 (7) TMI 715 - BOMBAY HIGH COURT] as also the principles laid down by the Hon’ble Jurisdictional High Court in the case of M/s.Jayanthi Natarajan [2017 (9) TMI 1042 - MADRAS HIGH COURT] we are of the view that the reasons recorded having not been given to the assessee before the completion of the assessment, the re-assessment is invalid and liable to be annulled and we do so. Appeal filed by the assessee is allowed.
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2018 (1) TMI 1616
Addition u/s 69A on account of unexplained cash - additional income disclosed under the head income from other sources/undisclosed income/undisclosed investment - Retraction of Additional Income disclosed - Addition based on the disclosure made by one person in case of a group companies - statement u/s 132(4) relied upon - HELD THAT:- In the present case the additions are involved based on statement u/s 132 (4) of the act as well as cash found during the course of search. The addition because of admissions is bald admission and which is partly retracted and corrected to the extent of ₹ 86 Crores. The statement was obtained by the revenue without collecting the evidences at the time of search.
Neither the ld AO, Nor investigation wing showed any evidence based on which the above disclosure of ₹ 150 crores was substantiated. Therfore there is no reason that matter can be set aside. No justification was alos showed before us in the above ground as to what inquiry ld Ao has failed to make which is now should be made by appellate forum. Furthermore the second addition on account of cash found was also substantiated by the assessee to show wealth tax returns of the family members as well as the cash position statement as on the date of search. AO has made the addition ignoring them. Now before us, it is not stated that what else inquiry or evidences should have been inquired about the above issue.
Therefore we reject the above grounds of the revenue. - Decided in favour of assessee.
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