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Showing 121 to 140 of 1266 Records
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2012 (10) TMI 1159
Issues Involved:
1. Legislative competence to impose tax on transactions.
2. Detention and seizure of goods.
3. Maintainability of the writ petition.
4. Grounds for detention and seizure under Section 48(2) of the Act.
5. Findings by the assessing authority.
Summary:
1. Legislative Competence to Impose Tax on Transactions:
The petitioner argued that transactions involving the purchase and dispatch of mentha oil on behalf of Ex-UP Principal are exempted u/s 7 of the U.P. Value Added Tax Act, 2008. The petitioner cited Supreme Court judgments, including 'Commissioner of Sales Tax v. M/s Bakhtawar Lal Kailash Chandra Arhti' and a Division Bench judgment in 'Reliance Industries Limited v. State of U.P.', to support the claim that the State Government lacks legislative competence to impose tax on such transactions.
2. Detention and Seizure of Goods:
The Assistant Commissioner, Commercial Tax, detained the goods on 21-7-2010, suspecting that the goods being transported were different from those mentioned in the documents. A show cause notice was issued, alleging discrepancies such as similar menthol content in samples, uniform handwriting in 6R forms, and impracticality of purchasing from 38 persons in one day. The petitioner contended that these grounds were factually incorrect and did not justify detention or seizure.
3. Maintainability of the Writ Petition:
The State questioned the maintainability of the writ petition. However, a Division Bench admitted the petition, stating that the State acted without jurisdiction and arbitrarily, thus allowing the Court to proceed on merits.
4. Grounds for Detention and Seizure under Section 48(2) of the Act:
The Court examined whether the conditions u/s 48(2) of the Act, which permit seizure when goods are not properly accounted for in business records, were met. The Court found no discrepancy in the documents and noted that the goods were accompanied by all necessary documents, including transfer challan, statutory forms, and Mandi gate pass. The Court concluded that the grounds for seizure were based on unfounded facts and incorrect reading of entries.
5. Findings by the Assessing Authority:
During the pendency of the writ petition, the assessing authority, in its final assessment order dated 29-6-2012, found that the goods were the same as those dispatched from Barabanki for Jammu. This contradicted the initial suspicion by the authorities who seized the goods. The Court emphasized that the authorities acted arbitrarily and without proper consideration of the petitioner's objections and documents.
Conclusion:
The writ petition was allowed, and the Court quashed the detention memo, show cause notice, and seizure order. The Court imposed exemplary costs of Rs. 50,000 on the authorities responsible for the seizure, to be deposited within one month, with half the amount to be given to the petitioner and the other half to the Mediation Centre of the Court. The State Government was given the option to recover the cost from the pensionary benefits of the responsible officers.
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2012 (10) TMI 1158
Issues Involved:
1. Validity of Notification Nos. 16/2008-C.E. and 33/2008-C.E.
2. Entitlement of petitioners to full refund based on original Notification No. 39/2001-C.E.
3. Applicability of principles of promissory estoppel.
4. Right of petitioners to approach the court directly without appealing against refund rejections.
Summary:
1. Validity of Notification Nos. 16/2008-C.E. and 33/2008-C.E.:
The petitioners challenged the amendments made by Notification Nos. 16/2008-C.E. and 33/2008-C.E., which altered the basis of excise duty exemption from "the amount of duty paid by the manufacturer of the goods other than the amount of duty paid by utilization of Cenvat credit" to "the duty payable on value addition undertaken in the manufacture of the said goods by the said unit." The court noted that this issue had already been addressed in the case of Sal Steel Ltd. v. Union of India, where the notifications were deemed invalid. However, the Supreme Court's interim order stayed the High Court's judgment, pending further proceedings.
2. Entitlement to Full Refund Based on Original Notification No. 39/2001-C.E.:
The petitioners sought full refunds based on the original Notification No. 39/2001-C.E., arguing that the amendments should not apply retrospectively. The court observed that the petitioners had filed refund claims under the amended notifications, which were partially granted by the authorities. The petitioners did not appeal against the partial rejections and only approached the court after a considerable delay. The court held that the petitioners could not now claim full refunds based on the invalidity of the notifications without having challenged the partial rejections through the proper appellate channels.
3. Applicability of Principles of Promissory Estoppel:
The petitioners contended that the amendments breached the principles of promissory estoppel, as they had made significant investments based on the original notification. The court did not delve deeply into this issue, as it had already been addressed in the Sal Steel Ltd. case. The pending Supreme Court proceedings would ultimately determine the applicability of promissory estoppel in this context.
4. Right to Approach Court Directly Without Appealing Against Refund Rejections:
The court emphasized that the petitioners should have pursued the statutory appeal process against the partial rejections of their refund claims. Citing the Supreme Court's decision in Mafatlal Industries v. Union of India, the court reiterated that refund claims must be adjudicated under the provisions of the Central Excise Act, 1944, specifically u/s 11B. The court concluded that the petitioners could not bypass the appeal process and directly seek relief through writ petitions based on judgments in other cases.
Conclusion:
The court dismissed the petitions, stating that the petitioners could not maintain their claims for full refunds without having exhausted the statutory appeal process. The dismissal was without prejudice to the petitioners' right to appeal against the refund rejections if such a right was available.
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2012 (10) TMI 1157
Whether in the light of the allegations made and materials placed by the prosecution, the High Court was justified in granting bail, particularly, in the light of restriction imposed u/s 21(4) of Maharashtra Control of Organised Crime Act, 1999 (MCOCA) - HELD THAT:- the Respondent is having an association with the overseas base wanted accused. It also indicates that the Respondent knowingly handled the funds of the syndicate. The statement of one of the witnesses indicates that the Respondent had asked the said witness to collect a sum from the co-accused, however, the same was not materialized. In addition to the same, there is a statement of co-accused that he collected ₹ 15 lakhs from co-accused - Dattatray Bhakare and delivered it to the Respondent. The confessional statement further indicates that the wanted accused used to make calls using cell phone to the Respondent. The confessional statement also reveals that Accused No. 6 received ₹ 6 lakhs from the man of the Respondent - prima facie the ingredients of the offence punishable u/s 4 of MCOCA attracts against the Respondent - accused. Considering the facts, particularly, in the light of the bar u/s 21(4) of MCOCA, the Special Court rightly rejected the application for bail filed by the Respondent herein.
Accordingly, the impugned order of the High Court in Criminal Bail Application granting bail to the Respondent is set aside and the order of the special Judge is restored. In view of the same, the Respondent is directed to surrender before the Special Court within a period of two weeks from the date of passing of this order, failing which, the special Court is directed to take appropriate steps for his arrest.
The appeal of State of Maharashtra is allowed.
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2012 (10) TMI 1156
Supreme Court judgment in 2012 (10) TMI 1156 - SC Order by Mr. Aftab Alam and Mrs. Ranjana Prakash Desai, JJ. Delay condoned. Leave granted.
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2012 (10) TMI 1155
Issues involved: Winding up petition u/s 433 and 434 of the Companies Act, 1956 based on unpaid consultancy fees.
Judgment Summary:
Issue 1: Unpaid Consultancy Fees
The Petitioner filed a winding up petition against the Respondent Company for unpaid consultancy fees as per the Financial Advisor Agreement. The Agreement required both parties to fulfill their obligations, including regular payments by the Company. The Petitioner claimed a balance of &8377; 18,96,344, including interest. The Company denied liability, leading to a statutory notice for payment. The Company contested the claim, alleging non-compliance and lack of professional services by the Petitioner.
Issue 2: Bonafide Dispute
The Company raised a bonafide dispute regarding the consultancy fees, citing non-compliance by the Petitioner with the Agreement terms. The Court referred to previous judgments emphasizing that a bona fide disputed debt should be resolved through legal action, not winding up. Mere denial in response to a statutory notice does not establish neglect to pay, especially when the disputed amount is not acknowledged or crystallized.
Issue 3: Arbitration Clause
The Court noted the existence of an arbitration clause in the Agreement, indicating that disputed matters should be resolved through arbitration proceedings. The Petitioner's denial of an oral settlement was countered by the Company's assertion of non-compliance by the Petitioner. The Court found the dispute genuine and unresolved, dismissing the winding up petition due to the bonafide nature of the disagreement.
Conclusion:
The Company Petition was dismissed, with no costs awarded, as the Court determined that the disputed consultancy fees should be resolved through arbitration rather than winding up proceedings.
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2012 (10) TMI 1154
Issues involved: Application for reliefs u/s 209(4) of Companies Act 1956, denial of access to company's books, allegations of oppression, mismanagement, and siphoning of funds, request for investigative audit, dispute over inspection of documents, confidentiality order, lack of bonafide purpose in filing the application.
Summary:
1. The petitioner sought reliefs u/s 209(4) of the Companies Act 1956, including access to specific documents and original invoices. The application raised concerns of oppression, mismanagement, and siphoning of funds.
2. The application was filed solely by Petitioner No.2, Gurmeet Singh, not by Dr. Jung Bahadur Singh. Gurmeet Singh holds a minimal share in the company, and discrepancies were noted regarding the inspection of records and the conduct at Board Meetings.
3. The grievance of Petitioner No.2 was not denial of inspection but the non-provision of copies of the documents inspected. The court cited legal precedent that shareholders do not have an absolute right of access to company books and that inspection is not for collecting materials for a petition.
4. The court highlighted inconsistencies in the petitioner's claims, noting that serious allegations were not included in the petition despite claims of having evidence. The possibility of information flow from Dr. Jung Bahadur Singh to Gurmeet Singh was also raised.
5. Proceedings in the U.S.A. regarding share transfer and injunctive reliefs were mentioned, along with contentions of regular Excise Audits satisfying the Excise Department. The absence of a prayer for investigation under section 237(b) of the Companies Act was noted.
6. A confidentiality order was discussed, emphasizing the need for strict confidentiality regarding information obtained during inspection. The court raised concerns about the application's purpose not being bona fide.
7. The court ultimately dismissed the application, citing lack of bonafide purpose. The matter was scheduled for final hearing on a later date.
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2012 (10) TMI 1153
Issues involved: Revision under Section 397 u/s 401 of Cr. P.C. for dismissal of application for amendment in principal application filed under Section 125 of Cr. P.C.
Summary:
1. The applicant wife filed a revision under Section 397 u/s 401 of the Cr. P.C. challenging the dismissal of her application for amending the principal application filed under Section 125 of the Cr. P.C. The respondent had remarried after the initial application was filed, and the applicant sought to include this subsequent event in the record. The applicant argued that the Trial Court should have allowed the amendment considering the nature of proceedings under Section 125 of the Cr. P.C.
2. The respondent's counsel contended that the provision of Order 6 Rule 17 CPC did not apply to criminal cases like the present one, and therefore, the Trial Court was justified in dismissing the application. It was also argued that the revision under Section 397/401 of the Cr. P.C. was not maintainable against the dismissal of the application under Order 6 Rule 17 of the CPC.
3. After hearing both counsels and examining the relevant documents, the Court proceeded to analyze the case.
4. The Court noted that strict rules of pleadings do not apply to cases under Section 125 of the Cr. P.C. and that subsequent events can be included in the record through an amendment or a separate application. In this case, the allegation of the respondent's second marriage arose during the pendency of the principal application under Section 125 of the Cr. P.C., necessitating its inclusion in the record.
5. Referring to established principles, the Court emphasized that proceedings under Section 125 of the Cr. P.C. are quasi-civil in nature, and the provisions of Order 6 Rule 17 of the CPC may not be strictly applicable. Citing a Supreme Court decision, the Court highlighted the right of parties to amend pleadings based on subsequent events during the course of the case.
6. Consequently, the Court set aside the impugned order, allowed the applicant to amend the principal application, and granted the respondent the liberty to file for consequential amendment in his reply. The parties were directed to appear before the Trial Court for further proceedings.
7. The Trial Court was instructed to receive the record promptly and proceed with the trial, and the revision was allowed accordingly.
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2012 (10) TMI 1152
Addition u/s.40A(2)(b) - commission paid to agents - AO was not convinced and held that the commission was paid to the beneficiaries of the Trust, hence payment made to persons specified u/s.40A(2)(b) was disallowed - Held that:- Trust has availed the services of these persons, therefore the commission was legitimately paid on the business brought by them. Resultantly ground raised by the assessee is allowed.
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2012 (10) TMI 1151
Lease granted for a period of 99 years - change of use of the said land from non-IT set up to IT set up - without any intimation to the lessor - Whether transfer of shares by the shareholders of a company to the stranger purchaser of such share amounts to transfer of assets of the company, whether acquired by way of lease or otherwise? - HELD THAT:- Following the decision of the Hon'ble Supreme Court in Bacha F. Guzdar, Bombay Vs. CIT [1954 (10) TMI 2 - SUPREME COURT] as well as of this Hon'ble Court in Kopila Hingorani vs. State of Bihar [2003 (5) TMI 359 - SUPREME COURT], this Court has no hesitation to hold that with the transfer of the share by the promoter shareholder to the present shareholder, namely the transferees of such share, the lease hold interest of the company was not transferred from the promoter shareholder to the present shareholder of the said company.
The petitioner-company which obtained the said lease from the Government, still remains the lessee of the said plot of land and its leasehold interest in the said plot of land remains unaffected by transfer of share by the promoter shareholders to the present holders. As such, this Court holds that the restrictive clause regarding transfer of the lease hold interest of the lessee in favour of a stranger, sub-lessee or assignee, does not attract in the present case and as a result, the demand for transfer fees for recognizing the alleged transfer of leasehold interest from the erstwhile shareholders of the said company to the present shareholder, is absolutely illegal and unlawful and as such, that part of such demand, which was made by the concerned authority in the impugned order and/or letter as aforesaid, stands quashed.
Whether the petitioner's representation for change of use of the said plot of land submitted on December 20, 2006 can be decided on the basis of the subsequent Notification dated 17th April, 2007 when this Hon'ble Court, while disposing of the earlier writ petition, directed the concerned authority to consider the petitioner's said representation in the light of the notification dated 6th May, 2005? - HELD THAT:- This Court holds that the demand of the permission fees for change of user of the land from a Non-IT set up to IT set up purpose at the rate as prescribed in the subsequent Notification of 2007 which came in to operation on 17th April, 2007, is illegal and unlawful. As such, that part of the impugned order and/or demand made in this regard by the concerned authority, stands quashed.
The concerned authority is, thus, directed to raise a fresh demand towards the permission fees for change of use of the said land from non-IT set up to IT set up at the rate as prescribed in the Notification dated 6th May, 2005.
The writ petition is, thus, allowed.
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2012 (10) TMI 1150
Issues Involved:1. Deletion of addition made on account of capital expenditure. 2. Allowing deduction u/s 80IB(4) of the Act. Summary:Issue 1: Deletion of Addition on Account of Capital ExpenditureThe Revenue challenged the deletion of an addition amounting to Rs. 3,05,593/- made on account of capital expenditure. The Assessing Officer (AO) treated the expenditure on repairs and maintenance of plant and machinery as capital expenditure, arguing that it extended the life of the machinery and provided an enduring benefit. The AO relied on the judgments of the Hon'ble Supreme Court in the cases of Ballimal Naval Kishore vs. CIT, 224 ITR 414, and CIT vs. Saravana Spinning Mills Pvt. Ltd, 293 ITR 201(SC). However, the Ld. CIT(A) held that the expenditures were for replacing parts of larger machines, which did not create new assets or provide enduring benefits, thus constituting revenue expenditure. The Tribunal upheld the CIT(A)'s decision, noting that the Revenue did not rebut the finding that the nature of the items indicated they were spare parts requiring replacement and did not result in new assets capable of producing saleable items. Issue 2: Allowing Deduction u/s 80IB(4)The Revenue contested the CIT(A)'s direction to allow a deduction u/s 80IB(4) amounting to Rs. 24,83,968/- for power generated by the assessee's COGEN units at the market rate of Rs. 4.86 per unit. The AO had adopted a lower rate of Rs. 2.36 per unit, arguing that the assessee's claim was not genuine and that the deduction was not allowable for power generated for captive consumption, citing the decision of the ITAT Chennai in the case of Chettinad Cement Corporation Ltd. The CIT(A) relied on the ITAT Ahmedabad Bench's decision in the case of Alembic Ltd., which allowed the deduction based on the price of electricity supplied by the Gujarat Electricity Board (GEB). The Tribunal upheld the CIT(A)'s decision, noting that the CIT(A) had considered all aspects and rightly followed the decisions of the Hon'ble Co-ordinate Bench of Delhi in the case of Addl. CIT vs. Jindal Steel and Power Ltd, 16 SOT 509, which supported the assessee's claim. Conclusion:The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decisions on both issues.
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2012 (10) TMI 1149
Issues involved: Jurisdiction of the High Court to entertain a writ petition challenging a detention order passed by the Principal Secretary (Appeals and Security) of the Home Department, Government of Maharashtra.
Summary:
The petitioner filed a writ petition seeking to quash a detention order passed by the Principal Secretary (Appeals and Security) of the Home Department, Government of Maharashtra. The respondent raised a preliminary objection regarding the jurisdiction of the High Court, stating that the cause of action arose in Maharashtra. The petitioner argued that the High Court has jurisdiction as he is a resident of Ghaziabad, U.P., and conducts business activities there. The case involved the importation of second-hand cranes at Bombay Port and allegations of customs duty evasion. The petitioner's son had previously approached the Bombay High Court regarding the matter. The petitioner's counsel cited legal precedents to support the jurisdiction of the High Court. The respondent contended that the cause of action arose in Bombay and the petitioner had already approached the Bombay High Court. After considering the arguments, the High Court found that the cause of action was in Bombay and dismissed the petition on jurisdictional grounds. The Court also noted that the petitioner's son had already approached the Bombay High Court, making the second petition on the same facts not maintainable as per the Allahabad High Court Rules.
In conclusion, the High Court dismissed the petition on the grounds of jurisdiction, citing Rule 7 of the Allahabad High Court Rules, which prohibits a second writ petition on the same facts. The Court emphasized that the cause of action was in Bombay, where the cranes were imported, and the petitioner's activities in Ghaziabad did not establish jurisdiction for the High Court.
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2012 (10) TMI 1148
Issues involved:
The judgment involves issues related to the disallowance of expenses u/s material purchases, site expenses, labor expenses, and miscellaneous expenses for the assessment year 2008-09.
Material Purchases:
The Revenue challenged the CIT(A)'s decision to direct the AO to make a disallowance of 20% on an estimate basis due to the absence of bills/vouchers amounting to Rs. 40,84,809 under the head "Material Purchases." The assessee contended that all details were provided, and the disallowance was excessive. The Tribunal upheld an addition of Rs. 4 lakhs for material consumed, considering the lack of bills for certain items.
Site Expenses:
The Revenue questioned the CIT(A)'s direction to make a 10% disallowance instead of the 20% disallowed by the AO for expenses under the head "Site Expenses." The assessee argued that all details were submitted, and the disallowance was arbitrary. The Tribunal sustained an addition of Rs. 4 lakhs for site expenses due to the absence of vouchers.
Labor Expenses:
The Revenue contested the CIT(A)'s decision to confirm an addition on account of labor expenses. The assessee provided complete details, including labor muster rolls, but the AO was not satisfied with the genuineness. The Tribunal directed the deletion of the addition made by the AO.
Miscellaneous Expenses:
The Revenue challenged the CIT(A)'s confirmation of an addition for miscellaneous expenses. The assessee made payments through cheques, but the AO disallowed certain amounts due to lack of verification. The Tribunal directed the AO to sustain an addition of Rs. 90,436 for miscellaneous expenses.
Conclusion:
The Tribunal dismissed the Revenue's appeal and partly allowed the assessee's appeal, directing specific additions for material consumed, site expenses, and miscellaneous expenses while deleting the additions for labor expenses.
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2012 (10) TMI 1147
Arbitration award - Application for setting aside the Arbitral Award - insolvency proceedings - Held that:- In the present case, admittedly, the Appeal against the order is pending. The effect and the power of the Appellate Court, under Section 37 is quite settled. The order passed under Section 34, may be set aside or modified. The modified award in no way can be stated to be the final decree and/or final order. The transaction in question is a commercial transaction. The stake, the parties name and fame cannot be overlooked. Merely because there is award passed against one party, that itself is not sufficient to invoke the provisions of Insolvency Act in such fashion at this stage, basically when, the award /order has not attained finality.
The Court has modified and passed the Award against all the Directors. The Appeal was preferred by 3 Directors only. The present motion is taken out only by one Director. At this stage, in view of the above observations, the modified award itself has not attained finality, the challenge made by one Director, and not by others, in my view, should not be the reason to overlook the provisions of both the Acts.
It is difficult to dissect, as contended by the learned counsel appearing for the Creditors that the Motion be maintained against the other Directors, for the simple reason that the modified award is against all the Directors but admittedly the Appeal is still pending. It is made clear that, once the modified award attains finality, the Creditors may take out the proceedings, if permissible, in accordance with law. Thus inclined to set aside the Insolvency Notice, in question.
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2012 (10) TMI 1146
Issues involved: Challenge to addition of stock difference and unexplained cash found by Income Tax Appellate Tribunal.
Summary:
The appellant challenged the Income Tax Appellate Tribunal's decision to add Rs. 27.70 lakhs for stock difference and Rs. 1.10 lakhs as unexplained cash. The Tribunal upheld the addition based on the unaccounted stock found during a survey and the appellant's admission of the same. The appellant failed to provide a satisfactory explanation for the discrepancies, leading to the authorities ruling against him. The appellant argued that he was not required to produce documents before the assessment proceedings, but the court found that the evidence supported the Tribunal's decision. The court concluded that no legal question arose, as the appellant had admitted to the unaccounted stock during the survey. Therefore, the appeal was dismissed, and the Tribunal's decision was upheld.
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2012 (10) TMI 1145
Reopening of assessment - notice issues after four years - Held that:- AO, in the reasons recorded, after relying on the Tribunal’s decision in the assessee’s own case for a different assessment year, has merely made a bald statement that the assessee had failed “to disclose truly and fully all legal facts”. It is borne out from the record that the assessee had provided in its P&L A/c software expenses as revenue in nature.
AO in the original assessment had, without any discussion in the assessment order, allowed these software expenses as revenue expenditure, and this was sought to be disturbed in the reassessment proceedings after expiry of four years. This is a clear case where the primary facts were available before the AO, and therefore, the assessee cannot be held to have failed to disclose “fully and truly all material facts”. It was for the AO to draw the appropriate inference. The assessee is/was under no obligation to draw the inference of fact or law based on the primary facts available on record. - Decided against revenue
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2012 (10) TMI 1144
Disallowance u/s. 14 r.w. Rule 8D - HELD THAT:- The issue involved in this ground is squarely covered by the decision in the case of Godrej & Boycee Manufacturing Co. Ltd., Vs DCIT[2010 (8) TMI 77 - BOMBAY HIGH COURT]. Therefore without going into the merits of the case, we restore this issue back to the files of AO to decide afresh without applying Rule 8D as Rule 8D has been held to be applicable from A.Y. 2008-09. This ground of the assessee is allowed for statistical purposes.
Rental Income - Income from house property instead of business income - In the case of Shambhu Investment P. Ltd. v. CIT [2003 (1) TMI 99 - SC ORDER], held that income derived from letting out of the property should be assessed as income from house property. The Ld. Counsel’s contention that in the earlier year, the rental income has been taxed under the head ‘Income from House property’ and therefore the same should be followed as per the rule of consistency cannot be accepted for the simple reason that the rule of consistency envisages that if there is only one view on the given set of facts, then the same view should be taken year after year.
However, In the instant case, in the earlier year, the Revenue authorities may have taken a wrong view in-consistent with the ratio laid down in the case of Shambhu Investment P. Ltd. v. CIT, in our considerate view, the law laid down by the Hon’ble Supreme Court is to be followed.
Therefore, we do not find any merit in the arguments of the assessee, findings of the Ld. CIT(A) are confirmed. This ground of the assessee is dismissed. In the result, the appeals filed by the assessee are partly allowed for statistical purposes.
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2012 (10) TMI 1143
Issues involved: Application for recalling order due to non-appearance leading to dismissal of appeal u/s 254(2) of the Income Tax Act.
The applicant filed a Miscellaneous Application seeking to recall the order dated 25.11.2011 in relation to Assessment Year 2006-07, which was dismissed ex-parte for want of prosecution. The applicant cited illness and the failure of the senior lawyer, Sh. Ved Jain, to attend the proceedings as reasons for the non-appearance. The applicant requested for the hearing to be extended due to these circumstances.
The applicant's contention was that the non-appearance was due to illness and the wrong impression created by Sh. Ved Jain's absence. The counsel argued for condonation of the delay and requested for the case to be heard on merits to avoid inconvenience to the client, an elderly individual. On the hearing date, Sh. Ved Jain appeared and argued that there was a reasonable cause for the non-appearance previously.
The Revenue's representative highlighted that Sh. Ved Jain did not have the Power of Attorney on the date of the appeal hearing, rendering the adjournment application invalid. Citing a precedent case, the Revenue contended that the Miscellaneous Application lacked merit and should be dismissed.
Upon reviewing the record, it was found that the appeal hearing was adjourned at the request of both parties, but on the subsequent date, Sh. Ved Jain did not appear, and an application for adjournment was submitted by a party without proper authorization. The appeal was decided on its merits, with certain grounds upheld and others dismissed due to lack of evidence.
The Tribunal concluded that the Miscellaneous Application was misconceived and not maintainable. As the adjournment was requested by a counsel without proper authority, the application under section 254(2) of the Act was deemed not viable for review. Citing the precedent case, the Tribunal dismissed the application as the issues had already been adjudicated on merits and could not be re-heard.
In the final decision, the Tribunal dismissed the Miscellaneous Application filed by the assessee on the grounds of non-maintainability. The order was pronounced in open court on October 30, 2012.
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2012 (10) TMI 1142
Issues involved: The appeal concerns the addition of &8377; 6,99,140/- made by the Assessing Officer (AO) and confirmed by the learned CIT(Appeals) on account of disallowance u/s 14A read with Rule 8D of Income-tax Rules, 1962.
The judgment addresses the case of a company engaged in share broking, where the AO disallowed expenses related to exempt income under section 14A. The AO applied Rule 8D of Income-tax Rules to make the disallowance. The learned CIT(Appeals) upheld this decision based on a previous Special Bench ruling. However, the Tribunal noted that the issue was covered by a decision of the Hon'ble Bombay High Court, which stated that Rule 8D is applicable only from assessment year 2007-08. The High Court also emphasized that for years before 2007-08, a reasonable method should be used for disallowance u/s 14A. Consequently, the Tribunal set aside the CIT(Appeals) order and directed the AO to recompute the disallowance using a reasonable method, providing the assessee with an opportunity to be heard.
In conclusion, the appeal was treated as partly allowed for statistical purposes, with the Tribunal pronouncing the order on October 12, 2012.
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2012 (10) TMI 1141
Entitled for exemption either under S.10(23C) or under S.11 - Held that:- The enquiry conducted by the Assessing Officer with handful of persons does not appear to have brought out the reality of the situation as to the collection of capitation fee by the assessee - we are of the opinion that adequate enquiry should have been conducted by the lower authorities before coming to the conclusion that the assessee has charged capitation fee. Consequently the assessee deserves another opportunity to substantiate its claim before the Assessing Officer that it has not charged any capitation fee from the students. Remit the matter back to the file of the Assessing Officer for deciding the issue afresh and determine as to whether the assessee has collected capitation fee from the students, keeping in view the principles enunciated by the Apex Court and others in the judicial pronouncements discussed above
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2012 (10) TMI 1140
Issues Involved:
1. Disallowance of the claim u/s 80IB(10) of Rs. 1,04,58,412/-.
2. Pro-rata allowance of deduction u/s 80IB(10) for residential units not exceeding 1500 sq.ft.
Summary:
Issue 1: Disallowance of the claim u/s 80IB(10) of Rs. 1,04,58,412/-
The Assessing Officer (AO) disallowed the assessee's claim for deduction u/s 80IB(10) on the grounds that the residential units exceeded the maximum built-up area specified u/s 80IB(10). The AO found that independent units were merged into single units, thus violating the condition for maximum built-up area. The legislative intent of u/s 80IB(10) was to increase housing stock for low and middle-income groups, and this intent was deemed defeated by the assessee's actions. The CIT(A) upheld the AO's decision, rejecting the claim for deduction.
Issue 2: Pro-rata allowance of deduction u/s 80IB(10) for residential units not exceeding 1500 sq.ft.
The assessee argued that the CIT(A) was not justified in disallowing the pro-rata deduction for residential units not exceeding 1500 sq.ft. The ITAT Pune Bench in the case of D.S.Kulkarni Developers Ltd. vs. ACIT had previously upheld the plea for proportionate deduction u/s 80IB(10) where some residential units violated the built-up area condition. The Tribunal observed that the assessee would not lose the exemption u/s 80IB(10) entirely but would be entitled to a proportionate deduction for eligible units. Similar decisions were cited from other cases, including M/s. Ekta Housing Pvt. Ltd., G.V. Corporation vs. ITO, and Kruti Constructions.
Judgment:
The Tribunal found that the lower authorities did not consider the decisions in G.V. Corporation and Kruti Constructions, which supported the assessee's claim for proportionate deduction. The Tribunal set aside the order of the CIT(A) and restored the issue to the AO for reconsideration based on the facts and law available at the relevant time, providing due opportunity of hearing to the assessee. Both appeals were allowed for statistical purposes.
Pronounced in the open court on the 31st day of October, 2012.
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9911796707
