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Showing 121 to 140 of 1551 Records
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2024 (2) TMI 1431
Seeking appointment of an Arbitrator in terms of Clause 27 of the Master Loan Agreement - Impleadment of respondent Nos. 3 to 5 in the arbitration proceedings - signatory to the arbitration agreement - HELD THAT:- Admittedly, in the present case, the respondent Nos.1 and 2 are the parties to the Loan Agreement and there cannot be any doubt with regard to the Loan Agreement being valid and binding between the petitioner and the respondent Nos. 1 and 2.
The respondent Nos. 3 to 5 are a veritable party to the Loan Agreement as they are connected with the loan documents and form part of the loan transaction as in one way or the other, they have assured the petitioner regarding the execution of the loan documents and provided a security to the petitioner towards the loan transaction.
Further, the fact that whether the respondent Nos. 3 to 5 can be bound by the Loan Agreement and can be impleaded as parties to the arbitral proceedings is left open for the to Arbitral Tribunal decide. Also, the Arbitral Tribunal will also decide whether M/s SMC Global Securities Limited is a proper and necessary party to the arbitral proceedings.
Justice Ali Mohammad Magray (Retd.) (Chief Justice of J&K) is appointed as a Sole Arbitrator to adjudicate the disputes between the parties - The arbitration will be held under the aegis of the Delhi International Arbitration Centre, Delhi High Court, Sher Shah Road, New Delhi hereinafter, referred to as the ‘DIAC’). The remuneration of the learned Arbitrator shall be in terms of the Fourth Schedule of the Arbitration & Conciliation Act, 1996.
Petition allowed.
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2024 (2) TMI 1430
Challenge to impugned show-cause form GSTDRC-01 dated 29th December, 2023 - SCN is nonspeaking and without considering the reply/details submission made by the petitioner - violation of principle of natural justice - HELD THAT:- This writ petition is disposed of by setting aside the impugned show-cause notice dated 29th December, 2023 being annexure P-5 to the writ petition and the matter is remanded back to the GST authority concerned to reconsider the case of the petitioner by taking into consideration the aforesaid detailed reply dated 26th December, 2023 before proceeding any further.
Petition disposed off by way of remand.
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2024 (2) TMI 1429
Disallowance of expenses incurred in relation to ESOP cost - deduction u/s 37(1) - ITAT deleted addition - as argued ESOP expense is notional and that too of capital nature - HELD THAT:- The legal issue involved in this appeal is squarely covered by the decision of three High Courts in favour of the assessee. See PVP Ventures Ltd. [2012 (7) TMI 696 - MADRAS HIGH COURT] and followed by the decision Lemon Tree Hotels Ltd.[2015 (11) TMI 404 - DELHI HIGH COURT] and M/S. BIOCON LTD. [2020 (11) TMI 779 - KARNATAKA HIGH COURT]
In all the decisions it has been held that ESOPs was allowable as a deduction under Section 37(1) of the Act as primary object was not to waste capital but to earn profits by securing consistent service to the employees. The three decisions which were relied on by the assessee were taken note of by the learned Tribunal and the appeal filed by the revenue was dismissed.
All the three decisions which were referred above have attained finality as it appears that the revenue has not preferred any appeal against those decisions. Thus we find that Tribunal was well justified in dismissing the appeal filed by the revenue.
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2024 (2) TMI 1428
Illegal gratification - Legality of the arrest - Seeking quashing of FIR registered u/s 120 B and Section 420 of the Indian Penal Code and Section 7 and 13(2) r/w. 13(1)(d) of the prevention of Corruption Act, 1988 - seeking quashing of arrest of the petitioners being in violation of settled tenets of law under Section 46 and 41A (3) of Cr.P.C. - seeking quashing of remand order and subsequent orders passed by the learned Special Judge, CBI - sanction of credit facilities/ high value loan to the Videocon Group of Companies promoted by Venugopal Dhoot, in violation of the Banking Regulation Act under RBI guidelines and the credit policy of the Bank.
HELD THAT:- Section 41A was inserted to avoid routine arrests. This section mandates issuance of notice ‘where the arrest of a person is not required under Sub Section (1) of Section 41. This provision casts an obligation on such person to comply with the provision and further restricts the power to arrest when such person complies or continues to comply with the terms of notice, unless the police officer is of the opinion that the arrest is necessary, and further mandates to record to reasons for the arrest.
In Satyendra Kumar Antil [2022 (8) TMI 152 - SUPREME COURT] the Apex Court has observed that Sections 41 and 41A are facets of Article 21 of the Constitution of India, and the Investigating Agencies and their officers are duty bound to comply with the mandate of the said provisions as well as the directions issued in Arnesh Kumar vs. State of Bihar [2014 (7) TMI 1143 - SUPREME COURT].
The scope and ambit of Section 41 and 41A as well as the dictum of the Apex Court in Satyender Kumar Antil, Arnab Goswami etc was considered by the co-ordinate Bench of this Court while granting interim bail to the petitioners for non compliance of the mandate of Section 41A - the interim order does not substantially decide the rights, liability or lis between the parties and that the interim order is always subject to the final order, which will adjudicate the final rights and liabilities of the parties. Hence, there can be no gainsaying that the prima facie observation or tentative view expressed at interim stage is not binding at the final adjudication.
There can be no dispute that it is within the domain of the Investigating Agency to interrogate the accused and to arrive at a subjective satisfaction on the issue of arrest. The satisfaction of the investigating agency is subjective in nature and the Court cannot go into the reasonableness of the reasons of arrest and or substitute its objective opinion for the subjective satisfaction. Nevertheless, the subjective satisfaction is not wholly immune from judicial reviewability.
In the instant case, the preliminary enquiry relating to the sanctioning of loan to the Videocon Group of Companies in violation of Banking Regulations and Guidelines since the year 2009 to 2012 was registered in the year 2017. The petitioners were questioned in the course of the preliminary inquiry, and subsequently the FIR was registered on 22.01.2019. The petitioners were named as accused in the said FIR for the alleged offences of criminal conspiracy and cheating - in compliance with the notice dated 15.12.2022, under Section 41A, the petitioners appeared before the Investigating Agency on 23.12.2022. It is on this date that they were placed under arrest, on the ground of non co-operation and purportedly to unearth the entire gamut of conspiracy which led to sanctioning of term loan of Rs. 1875 Crores to financially beleaguered Videocon Group of Companies between June 2009 to April 2012.
The allegations that the petitioners are involved in the conspiracy, similarly the gravity of the offence and alleged quid pro quo were to the knowledge of the Investigating Agency as on the date of the registration of the FIR. The FIR states that the loan sanctioning Committees of ICICI Bank had sanctioned loan to Videocon Group of Companies. Some of the senior officials of ICICI Bank were also named in the first information report, and it was stated that the role of these senior officers of the sanctioning committee was also required to be investigated. Thus the involvement of the other bank officials in the conspiracy was not discovered in the course of the investigation but were to the knowledge of the Investigating agency, as on the date of registration of the FIR, despite which the Investigating Agency did not feel the need to arrest and interrogate the petitioners for a period of over three years.
The Investigating agency has not been able to demonstrate existence of circumstances or supportive material on the basis of which the decision to arrest was taken. Absence of such circumstances, information or material which is the sine qua non for the decision of arrest reduces the provision a dead letter and renders the arrest illegal.
In the instant case, the petitioner Chanda Kochhar was arrested before sunset. Hence, sub section (4) of Section 46 is not attracted. The decisions relied upon are therefore distinguishable. The case diary reveals that the arrest was in presence of a lady police officer. There is nothing on record to prima facie indicate that the petitioner was physically touched by a male police officer. No complaint in this regard was made to the Judge before whom the petitioner was produced for remand - there was no contravention of Section 46 or 60A Cr.P.C.
The arrest of the petitioners is held to be illegal for breach of mandatory provision under Section 41A Cr.P.C. Hence the petition is allowed.
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2024 (2) TMI 1427
Revision u/s 263 - reversal of ‘lease equalization charges’ was claimed as deduction in the computation of income instead of crediting the reversal of provisions to P & L A/c - HELD THAT:- The assessee has followed Accounting Standard-19 – accounting for lease issued by the Institute of Chartered Accountants of India in respect of rent and lease charges paid for the relevant assessment year and created a ‘lease equalization reserve’.
Assessee has debited ‘lease equalization charges’ to P & L A/c, but, added back to total income in the statement of total income for the relevant assessment years. Similarly, the assessee has reversed ‘lease equalization charges’ for the impugned assessment year and credited to P & L A/c.
As reduced from the total income in the statement of total income, because, debit to P & L A/c in the respective years has been added back to total income in the computation of income statement.
The method of accounting followed by the assessee for debiting and crediting ‘lease equalization charges’ and further adding to total income and reducing from the total income is in accordance with law.
Therefore, PCIT is completely erred in observing that ‘lease equalization charges’ created is a notional income/expenditure and crediting to P & L A/c should not have been reduced from the total income, because debit to P & L A/c has not been added to statement of total income is incorrect and devoid of merits.
AO has verified the issue of ‘lease equalization charges’ and its treatment in the books of accounts and computation of income during the course of assessment proceedings, which is clearly evident from notices u/s. 142(1) dated 09.12.2020 & 20.02.2012 issued by the AO, where specific question was asked in respect of accounting treatment of ‘lease equalization charges’ and subsequent treatment in computing the total income as per the provisions of the Income Tax Act, 1961
The assessee vide submission explained the method of accounting of ‘lease equalization charges’ in the books of accounts and subsequent treatment while computing income from business and profession.
AO after considering relevant submissions has accepted the claim of the assessee. From the above, it is undoubtedly clear that the AO has carried out required enquiries he ought to have been carried out in light of relevant facts submitted by the assessee in respect of ‘lease equalization charges’. PCIT is completely erred in coming to the conclusion that the assessment order passed by the AO is erroneous in so far as it is prejudicial to the interest of the Revenue.
The assessment order passed by the AO is neither erroneous nor prejudicial to the interest of the Revenue as alleged by the PCIT in their order passed u/s. 263. Appeal filed by the assessee is allowed.
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2024 (2) TMI 1426
Denial of relief claimed u/s. 90/90A - foreign tax credit (FTC) denied - non grant of credit of TDS as assessee had failed to furnish form 67 on or before the due date of furnishing of ITR - mandatory V/S directory requirement - HELD THAT:- As relying on Juan Miguel Guerrero Ferrer [2023 (9) TMI 1401 - ITAT JAIPUR] as the claim of the assessee is duly supported by the ITR filed and the Form no. 67 though late. Thus, the AO is accordingly directed to allow relief to the assessee based on the ITR and form no 67 filed by the assessee. The order of the ld. CIT (A) is set aside. Appeal of the assessee is allowed.
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2024 (2) TMI 1425
Money laundering - procceds of crime - First bail application filed under section 438 of Cr.P.C - rejection of Remdesivir Injections at a higher price - offence under section 420, 488, 304, 308, 467, 468, 471, of IPC and 3/7 of Essential Commodities Act and section 3 of Epidemic Diseases Act - HELD THAT:- From reading the provision of section 45 of the Act, 2002, the general rule of bail not jail would not apply in such cases. The provision is otherwise as a presumption is attached that the accused is guilty and unless there are reasonable grounds to believe that he is not guilty of such offence and he is not likely to commit such offence then bail can be granted.
The Division Bench of this court has rejected anticipatory bail considering the aforesaid provisions in the case of Kishore Meena Vs. Union of India [2023 (1) TMI 1349 - MADHYA PRADESH HIGH COURT]. In the case of P.Chidambaram Vs. Directorate of Enforcement [2019 (9) TMI 286 - SUPREME COURT], the Apex Court observed that the power under section 438 of Cr.P.C is extra ordinary power and the same has to be exercise sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases.
In the case of YS Jagan Mohan Reddy [2013 (5) TMI 896 - SUPREME COURT] the court held that the economic offences are under the category of heinous offence and cannot be considered as ordinary offence.
The applicant has committed the offence under section 3 of PMLC, 2002 and he knowingly assisted Sunil Mishra and others, and knowingly is a party, is actually involved in the process or activity connected with proceeds of crime including its concealment, possession, acquisition, use and projecting and claiming as untendered property which is punishable under section 4 of the Act, 2002 - the respondent has produced the money trail of the present case and as per the allegation huge amount of Rs.2,89,00,000/- is proceeds of crime.
Considering the money trail produced by the prosecution, which clearly proves involvement of the applicant in the present case, in which proceeds of crime is Rs.2,89,00,000/-, this court is of the view that in view of the rigor of section 45 of the Act, 2002, the applicant is not entitled for anticipatory bail. Accordingly, the application is dismissed.
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2024 (2) TMI 1424
Dismissal of petition for non-compliance with the order u/s 94(4) & (5) of IBC - it is pointed out by learned counsel for the Petitioner that he has already filed the affidavit in compliance with the order, but the same was not taken on record because of the non-appearance of the petitioner before the Court - HELD THAT:- It is pointed out by learned counsel for the Respondent-Corporate Bank-IDBI that the mortgaged property of the Petitioner is being put for auction under the provisions of the SARFAESI Act, 2002 but because this interim moratorium has been misused by the petitioner for the last three years and there is no need to adjourn the matter again.
There is no reason to again adjourn the matter for necessary compliance. Thus, the present petition is dismissed for non-compliance.
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2024 (2) TMI 1423
Validity of reassessment order passed without giving sufficient time to the petitioner - High Court power to investigate existence of one of the conditions for exercise of jurisdiction u/s 34 - HELD THAT:- Petitioner has challenged the assessment order and further the arguments raised in the present writ petition can be ably considered by examining the record. Considering that factual aspects are involved, this Court would refrain from entering into a fishing enquiry while examining a case under writ jurisdiction. We also notice that the judgment cited by the learned counsel of Full Bench of the Hon'ble Supreme Court of India in Calcutta Discount Co. Ltd [1960 (11) TMI 8 - SUPREME COURT] is with regard to the issue where the concerned Income Tax Officer acted without jurisdiction and in these circumstances Supreme Court held that the writ Court may entertain a plea challenging such assessments done without jurisdiction
In view of the above facts and circumstances as well as the recent pronouncements, this Court refrains from entertaining the present writ petition. Consequently, the present petition is hereby dismissed.
It is made clear that the period for filing of appeal has expired, however, in the circumstances, the appellate authority is directed to hear the appeal on merit if it is filed within a period of 15 days subject to making pre-deposits if required in law.
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2024 (2) TMI 1422
Revocation of the cancellation of GST registration - petitioner submitted that the petitioner has not filed any application in Form-GST REG 21 within a period of thirty days from the date of cancellation of registration and has made an application before the respondent authorities which has not been considered by the respondent Authorities - Principles of natural justice - HELD THAT:- The petitioner is permitted to file an application in Form GST REG 21 on portal giving all the details which are stated in this petition within a period of two weeks from today and on receipt of such application, the respondent Authorities without raising the dispute with regard to the limitation as the petitioner has approached this Court, consider such application on merits and pass appropriate order within a period of four weeks after giving an opportunity of hearing to the petitioner from the date of receipt of such application.
The respondent-Authorities thereafter, is directed to place such order on record of this petition before the next date of hearing - Stand over to 28th March, 2024.
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2024 (2) TMI 1421
Maintainability of petition - availability of alternative statutory remedy of Appeal - non-constitution of Appellate Tribunal - HELD THAT:- The Petitioners are desirous of availing the statutory remedy of Appeal under the said provisions. Apparently, acknowledging the absence of constitution of Appellate Tribunal, in exercise of the power conferred under section 172 of the CGST Act, 2017, the Government of India based on the recommendation made by the G.S.T. Council, has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 on 03.12.2019.
Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No.132/2/2020 dated 18th March, 2020, it is deemed proper in the interest of justice to dispose of these writ applications subject to conditions imposed - application disposed off.
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2024 (2) TMI 1420
Calling for the records and proceedings dealing with the Impugned Order-in-Original - dropping of penalties imposed upon the Petitioner - direction not to initiate any proceedings for recovery in respect to Impugned Order-in-Original - HELD THAT:- In respect of the issues involved in these proceedings, it would be appropriate for the Petitioner to take recourse to the remedy of an Appeal provided under Section 129-A of the Customs Act.
The Petitioner is directed to approach the Tribunal in appropriate proceedings - petition disposed off.
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2024 (2) TMI 1419
Levy and collection of Special Additional Excise Duty (SAED); Road and Infrastructure Cess (RIC) and Agriculture Infrastructure and Development Cess (AIDC) as a duty of Excise/Additional duty of Excise on removal of High Speed Diesel, which was manufactured in the Special Economic Zone (SEZ) to the Domestic Tariff Area (DTA) - whether the provisions of the Central Excise Act, 1944 can be resorted to while construing the provisions governing levy and collection of duty under the three Finance Acts viz: SAED under the Finance Act 2002; RIC under the Finance Act 2018 and AIDC under the Finance Act, 2021? - HELD THAT:- The judgement in the case of Unicorn [2019 (12) TMI 286 - SUPREME COURT] in fact supports the case of the appellant inasmuch as the Apex Court held that while construing the levy and collection provisions with respect to Education cess under the Finance Act, 2004 as also NCCD under the Finance Act, 2001 and Additional Excise duty (Pan Masala and Tobacco Products) under Finance Act, 2005, to which also the provision regarding levy and collection under the Central Excise Act, 1944 and the Rules made thereunder has been made applicable, that provision of Section 5A of the Central Excise Act, 1944 providing for exemption from the levy could have been applied if the Central Government so choose.
The appellant was completely justified in contending that the provisions of the Central Excise Act, 1944 with regard to levy and collection of Central Excise duty, to the extent they are not inconsistent, apply equally to the provisions of the Finance Act and accordingly the levy under the Finance Act will apply to goods manufactured or produced in India, other than the goods produced or manufactured in SEZ.
There are also substance in the appellant’s contention to the effect that the duties under the concerned Finance Acts, being in addition to any other duty of excise, chargeable on such goods under the Central Excise Act, is a clear indication that the levy under the relevant Finance Acts is in itself in the nature of a duty of excise chargeable on goods under Section 3 of the Central Excise Act, 1944.
The impugned order is not sustainable and accordingly set aside the same - Appeal allowed.
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2024 (2) TMI 1418
Validity of transfer order u/s 127 - requirement now to transfer petitioner’s case to Nashik Commissionerate - HELD THAT:- As submitted that after the impugned order was passed, petitioner did not even receive any communication from the AO of C & M Farming Group asking for any information or documents relating to the search that was carried out in the premises of of C & M Farming Group.
The impugned order itself proceeds on the basis that a transfer is required for administrative convenience and co-ordinated investigation in the case of C & M Farming Group. Since the assessment order itself has been passed for the relevant Assessment Year in the case of C & M Farming Group on 29th September 2021, we see no reason why petitioner’s case should be transferred to Nashik Commissionerate.
We hereby quash the impugned order dated 1st September 2021 - all the rights and contentions of the Revenue is kept open including to take steps in accordance with law under the provisions of Section 153C or any other applicable provisions.
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2024 (2) TMI 1417
Entitlement for benefit of exemption N/N 01/2011-CE or 02/2011-CE for the fertilizer - import of Muriate of Potash - HELD THAT:- It is true that any exemption notification must be strictly construed against the assessee who is claiming the benefit of the same. In this case, the only point of dispute is whether or not the CENVAT credit has been availed for the goods in question. It is not in dispute that the goods have been imported and therefore were manufactured outside India. The CENVAT Credit Rules, 2004 or CENVAT Credit Rules, 2002 are framed under the Central Excise Act, 1944. This Act applies to the whole of India but not beyond. When the Central Excise Act itself does not extend outside India, neither will the CENVAT Credit Rules. Therefore, it is impossible for anyone outside India to avail the benefit of CENVAT credit. Therefore, in respect of imports, it is impossible that the condition of CENVAT credit not being availed is not fulfilled.
The appellant is entitled to the benefit of the exemption notifications 01/2011 & 02/2011- CE in respect of their imports - the impugned orders are set aside - appeals are allowed.
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2024 (2) TMI 1416
Rejection of appeal of the petitioner - Correctness of proceedings u/s 74 of the GST Act - petitioner failed to discharge its onus to prove and establish beyond doubt the actual transaction as well as the genuineness of the transactions - it was held by High Court that 'From the perusal of the record shows that the petitioner failed to discharge its onus to prove and establish beyond doubt the actual transaction, actual physical movement of goods as well as the genuineness of the transactions and as such, the proceedings have rightly been initiated against the petitioner under section 74 of the GST Act.'
HELD THAT:- There are no reason to interfere in the matter - SLP dismissed.
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2024 (2) TMI 1415
Seeking grant of bail - money laundering - proceeds of crime - scheduled offences - invocation of Section 436-A of Cr.P.C - right to speedy trial - HELD THAT:- It is an undisputed position that right to speedy trial has been ingrained in Article 21 of the Constitution of India and undue delay in concluding a trial has always been frowned upon as violation of the right to life and personal liberty, as guaranteed by Article 21, which has to be clubbed with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters.
The provision in form of Section 436-A, which is sought to be pressed into service for securing the release of the Applicant, by way of proviso, contemplate that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties - It is thus the discretion of the Court, whether to secure release of a person, awaiting his trial on the ground that he has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified, but necessarily contemplate that the Court may at time continue the detention of an accused, despite having undergone more than one-half of the sentence and this may be justified on the ground of seriousness of an offence, the role played by the accused in such an offence and when his release on bail may prove to be harmful to the society.
The applicant (A10) is not entitled to bail/temporary bail on medical ground. However, alternative arrangement for his medical treatment can be directed whenever the same prevails upon. It has to be noted that none of the medical issues i.e. Cataracts, knee replacement due to arthritis and also hip bone issue, is life threatening to consider it a genuine sickness as required under First Proviso to Sec.45(1) of the PML Act - Similarly, the applicant (A10) is not entitled to be released on bail as required under Sec.436A Cr.P.C., even if contention of ED that, punishment provided for Scheduled Offence is for 10 years, is not legal when the application is preferred for an offence under the PML Act wherein the maximum punishment is to the extend of 7 years and the applicant (A10) is not in judicial custody in respect of any of the Predicate Offences/cases.
Section 436-A cannot be invoked at this stage, since the offence registered against Iqbal Mirchi involve an offence under Section 302 of the IPC as well as the offence under the NDPS Act, though the present Applicant is not an accused in any of the Scheduled Offences. The accusation faced by him alongwith the main accused Iqbal Mirchi is about layering and laundering of the money acquired by Iqbal Mirchi and its use in purchasing the three properties and, since, the genesis of this money lies in the three offences registered at the instance of Anti Narcotic Cell in the year 1992, 1993 and 1994 respectively, and, hence, in my considered opinion, no case is made out for invocation of Section 436-A, as the punishment imposed in the subject complaint would be the one falling in Part II of Section 4 i.e. maximum punishment may extend up to ten years of rigorous imprisonment.
The argument that not a single Scheduled Offence under the NDPS Act is alleged to have been committed between 1986 to 1989, is ultimately a matter to be appreciated, when the merits of the matter is considered, as it is the specific case of the Directorate of Enforcement that the money has been layered by Iqbal Mirchi into various transactions and purchase of properties and this will ultimately a matter to be determined at the end of the trial.
Thus, no case is made out by the Applicant for exercise of power under Section 436-A on the ground that he has undergone one-half of the maximum punishment, which would be imposed upon him under the Act of 2002, if convicted - application dismissed.
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2024 (2) TMI 1414
Reopening of assessment u/s 147 - Bogus LTCG transaction in penny stock - Addition u/s 68 - as argued 'reasons' are based on 'general information' without establishing any connection with assessee and without reflecting any wrong doing by assessee - HELD THAT:- Transaction entered into by the assessee are not looks to be clear. As investee is showing in Schedule IV-Fixed Assets, computers only whereas as mentioned its main activities are of financing and real estate. There is no indication in the financials of the investee company about its indulgence in the area of finance and real estate. Investee Company’s EPS only 0.06. With such a low/negligible EPS, how the price of shares can be so high? Simply by producing contract note, bank statement, sale note, assessee cannot absolve himself from a duty caste upon him to prove his genuineness.
Further to explain the reasons and basis for acquisition/ purchases of the shares, it was submitted that the shares are purchased through the stock exchange and has filed a statement explaining the purchase details that the assessee has purchased 30,000 shares on 04.03.2011 as per the contract note issued and similarly purchased in small lots of 6,000 shares on 29-03-2011, 500 shares on 1704-2011 as per contract note issued - Further the Ld. AR mentioned that 3,500 shares were purchased but no evidence of contract note was furnished. The assessee has sold 70,000 shares in the financial year 1213, in particular November 2012 to January 2013. Whereas on considering the share holding discussed above it works out to only 40,000 shares.
When a query was raised to explain the difference in the holding of shares, the Ld. AR submitted that the company has issued the bonus Shares and the shares of 30,000 purchased on 4-03-2011 have become 60,000 shares. AR could not support the issue of bonus shares with any allotment letter or evidence issued by the company.
AR referred to the demat account which discloses credit of 60,000 shares on 30-03-2011. Whereas the assessee has purchased 30,000 shares on 4-03-2011 and the credit for the shares in the demat account is higher, the explanations of the Ld.AR are not satisfactory and are without any supporting evidences on credit of additional shares for the first time in the demat account.
Therefore, we considering the facts, circumstances and to meet the ends of justice shall provide with one more opportunity of hearing to the assessee to explain and produce the evidences in support of allotment of shares and also the assessing officer to consider the financial aspects of the investee company as discussed above and adjudicate afresh - we allow the grounds of appeal of the assessee for statistical purposes.
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2024 (2) TMI 1413
Addition u/s 68 - sale value of shares of alleged penny stocks -bogus capital gains/capital losses - AO has primarily placed reliance on the report given by the Investigation wing of the Income tax department, Kolkata to arrive at the conclusion that the long term capital gains reported by the assessee is bogus in nature - HELD THAT:- We noticed that the evidences furnished by the assessee to prove the purchase and sale of shares, payment made/received, entry/exit of shares in the demat account of the assessee etc., were not doubted with.
In the case of PCIT vs. Smt Krishna Devi [2019 (8) TMI 450 - ITAT DELHI] has noticed that the reasoning given by the AO to disbelieve the capital gains declared by the assessee, viz., astronomical increase in the price of shares, weak fundamentals of the relevant companies are based on mere conjectures. Accordingly, the Hon’ble Delhi High Court [2021 (1) TMI 1008 - DELHI HIGH COURT] affirmed the decision rendered by ITAT in deleting the addition of capital gains.
Accordingly, we are of the view that the decisions rendered since the AO has not established that the assessee was involved in price rigging and further the AO did not find fault with any of the documents furnished by the assessee.
We noticed earlier that the AO has assessed the Sale consideration of shares as unexplained cash credit u/s 68. It is pertinent to note that the purchase of shares made in an earlier year has been accepted by the revenue. The sale of shares has taken place in the online platform of the Stock exchange and the sale consideration has been received through the stock broker in banking channels. The sale consideration cannot be considered to be unexplained cash credit in terms of sec. 68 of the Act.
Since we have held that the sale transactions of shares cannot be doubted with, the addition made by the AO with regard to estimated commission expenses is also liable to be deleted.
We hold that the sale consideration received on sale of shares cannot be assessed as unexplained cash credit u/s 68 of the Act and the long term capital gains declared by the assessee cannot be doubted with. Accordingly, we set aside the order passed by Ld CIT(A) and direct the AO to delete the impugned additions made by him. Assessee appeal allowed.
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2024 (2) TMI 1412
Acquittal of all the four Respondents of the charges under Section 302 read with Section 34 of the Indian Penal Code, 1860 - whether a case is made out for interference by this Court under Article 136?
Scope of Interference - HELD THAT:- There is no gainsaying that once the appellate court acquits the accused, the presumption of innocence as it existed before conviction by the Trial Court, stands restored, and this Court, while scrutinizing the evidence, will proceed with great circumspect and will not routinely interfere with an order of acquittal, save when the impeccable prosecution evidence nails the accused beyond any doubt. In other words, where on consideration of the material on record, even if two views are possible, yet this Court, while exercising powers under Article 136 of the Constitution, will not tinker with an order of acquittal.
STATE OF KARNATAKA VERSUS SELVI J. JAYALALITHA AND ORS. AND K. ANBAZHAGAN VERSUS SELVI J. JAYALALITHA AND ORS. ETC. AND INDO DOHA CHEMICALS & PHARMACEUTICALS AND ORS. ETC [2017 (2) TMI 926 - SUPREME COURT] does acknowledge that a judgment of acquittal strengthens the presumption of innocence in favour of the accused. Nevertheless, the caveat is that the court must not shy away from its responsibility to prevent a miscarriage of justice and must intervene when necessary. If the acquittal is based on irrelevant grounds, if the High Court allows itself to be misled by distractions, if the High Court dismisses the evidence accepted by the Trial Court without proper consideration, or if the High Court's flawed approach leads to the neglect of vital evidence, this Court is obligated to intervene to uphold the interests of justice and address any concerns within the judicial conscience.
An erroneous or perverse approach to the proven facts of a case and/or ignorance of some of the vital circumstances would amount to a grave and substantial miscarriage of justice. In such a case, this Court will be justified in exercising its extraordinary jurisdiction to undo the injustice mete out to the victims of a crime.
Acquittal order qua Gurpreet Singh (main accused) - The prosecution case is that the occurrence took place inside the house. When the police reached the spot immediately after the occurrence, the dead body was found lying inside the house near the stairs. It is, thus, natural that the residents in the adjoining houses did not see the occurrence. The shot was fired at close range, and, the people in the neighbourhood obviously did not come to know about the incident. No adverse inference can be drawn against the prosecution on this count. The time of occurrence, i.e., 1.30 p.m., also indicates that most of the people in the neighbourhood were inside their houses and could not be expected outside in the streets keeping in view the hot and humid weather of July as it prevails in the State of Punjab - sustaining the acquittal of Gurpreet Singh, would amount to a travesty of justice and it, thus, warrants interference by this Court in the exercise of its jurisdiction, which we invoke sparingly. Consequently, the order of acquittal passed by the High Court qua Gurpreet Singh cannot be sustained and is set aside.
Acquittal order qua the coaccused - The Investigating Officer has failed to disclose as to how he found these respondents to be connected with the crime during the course of investigation. There is no convincing explanation to implicate them as coaccused. There is also not an iota of evidence to suggest that the Respondents (Kashmira Singh, Jagdeep Singh and Harpreet Singh) had any meeting with Gurpreet Singh and/or they had conspired with him for the execution of the crime. There is no specific motive attributed to them. In such circumstances, the High Court seems right in extending the benefit of doubt qua them.
The judgment dated 05.12.2019, passed by the High Court of Punjab and Haryana at Chandigarh, acquitting Gurpreet Singh of the offence under Section 302 IPC is set aside, and that of the Trial Court convicting him and sentencing him to life imprisonment is restored. The bail bonds of Gurpreet Singh, if any, are hereby cancelled - Appeal allowed in part.
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