|
Advanced Search Options
Case Laws
Showing 121 to 140 of 1389 Records
-
2014 (7) TMI 1273
Unexplained investment in stock - Search proceedings - under recording the purchase value of the goods as well as sale value of the goods - whether separate additions can be made for such unrecorded purchases and sales? - Held that:- Almost 50% purchases have been made outside the books of account because in the books of account only purchases of ₹ 34,26,938/- have been made whereas the purchases outside the books are ₹ 16,35,009/-. This in turn means that assessee would require some investment to hold such stock and also some sundry debtors wherever credit sales have been made. Since the amount of ₹ 16,35,009/- pertains to full year, in our opinion, an addition of ₹ 3 lakhs would meet the ends of justice because that would mean inventory for almost two months plus some credit sales.
Addition on account of alleged profit earned on alleged unaccounted sales - Held that:- As discussed in detail the aspect relating to unrecorded purchases and sales and practically deleted whole of that addition except for the sum of ₹ 3 lakhs which was required as investment in the form of inventory. It was also observed that at best only profit could be estimated on such undisclosed sales. The undisclosed sales was clearly admitted during the survey/search operation by the assessee himself and therefore, the same cannot be denied now. At least profits on all such transactions have to be assessed to tax. The Assessing Officer has been more then reasonable to assess the profit at the GP rate declared by the assessee in various years and the same has been confirmed by Ld. CIT(A), therefore, we find nothing wrong with the order of Ld. CIT(A) and confirm the same.
Addition on account of alleged capital gains short disclosed - Held that:- The year a sum of ₹ 1,60,000/- has been shown towards construction and further a sum of ₹ 44,333/- is shown for transfer charges and ₹ 28,550/- for purchase of wood etc. Therefore, it can be said that assessee has incurred some expenditure for cost of improvement. However, at the same time no documentary evidence has been placed and since admittedly the assessee is holding many properties, therefore, it cannot be said that all the expenses have been incurred for improvement of this property. In these circumstances, in the interest of justice we are of the opinion that if a sum of ₹ 1 lakhs is estimated towards cost of improvement, then the same would meet the ends of justice.
Unexplained investment in stocks under section 69B - Held that:- The assessee is regularly carrying on the business of sanitary and hardware items and, therefore, must be carrying on some stock . Before CIT(A) list of inventory was furnished showing stock of ₹ 18,47,600/-. Though inventory list was not furnished before Assessing Officer but this can be said to have be accepted by the Revenue because investment in undisclosed sale was calculated on the basis of these details. Further, we have already held while adjudicating the issue regarding undisclosed stock i.e sum of ₹ 3 lakhs should be added towards inventory and sundry debtors. Considering this fact and the fact that some of the items have been valued at retail price we are of the opinion that addition of ₹ 5 lakhs towards cost would meet the ends of justice.
Unaccounted cash found at the time of search - Held that:- A married women coming to her parents house may bring cash and considering the overall circumstances we are of the opinion that a credit for ₹ 1 lakh can be given for cash belonging to Smt. Jyoti Khajuria. As far as cash belonging to Shri Vijay Kishan Sharma is concerned, no credit can be given, firstly a father-in-law normally would not keep his cash in the house of son-in-law. Secondly there was no such occasion to keep the cash with the son-in-law. In any case this cash was withdrawn from Vijay Bank on 19.8.2010 and why that cash was withdrawn and kept at son-in-law’s house, has not been explained. Therefore we decline to give any credit for the cash to Shri Vijay Kishan Sharma. To sum up a credit for ₹ 1,60,000/- (i.e. ₹ 1 lakh for cash belonging to Smt. Jyoti Khajuria and ₹ 60,000/- belonging to the business should be given and balance addition is confirmed). Therefore we set aside the order of the CIT(A) and allow this ground partly.
Addition on account of alleged investment in jewellery substantive in the case of assessee appellant - Held that:- Atleast benefit of the instructions issued by CBDT in Instruction No. F.286/63/93-IT(inv)-11 dated 11.5.1994 should be allowed for jewellery. As per these instructions jewellery to the extent of 500 gms in case of a married lady and 100 gms in case of a married male should be accepted, therefore out of jewellery of 735.20 gms, jewellery of 600 gms should be accepted. Similarly diamond items had been valued at ₹ 65150/- and silver items had been valued at ₹ 21780/-. These are small amounts and considering the overall status of the family, in our opinion, these amounts should be accepted as explained. Therefore we set aside the order of the CIT(A) and direct the Assessing Officer to make addition of jewellery for 135.20 gms.
Addition on account of alleged undisclosed capital gains - cost of improvement - Held that:- No force in the submissions because no evidence has been filed for the source of the cash for so called improvement. Therefore we set aside the order of the CIT(A) and confirm AO order.
-
2014 (7) TMI 1272
CENVAT credit - input services - outdoor catering services - medical insurance - Held that: - The definition of 'input service' is very broad, which includes 'activities relating to business', to be covered within its purview, for the purpose of availment of Cenvat credit. It is admitted fact on record that the disputed input services are business related expenditure of the appellant, which is duly reflected in the CAS-4 maintained as per accounting standards. Hence, it will not be prudent to disallow the Cenvat credit on such services.
Credit allowed - appeal allowed - decided in favor of appellant.
-
2014 (7) TMI 1271
Allowability of deduction under Section 80JJA - Held that:- In relation to that, in the case of the very Assessee, this Court in the case of Commissioner of Income Tax v/s Smt. Padma S. Bora [2012 (12) TMI 666 - BOMBAY HIGH COURT] has dealt with the identical questions. The Commissioner of Income Tax's Appeal was dismissed by this Court finding that the same does not raise any substantial question of law. That was in relation to Assessment Year 2003-2004 and 2004-2005.
In the current Assessment Year the Tribunal has adopted identical reasoning. In such circumstances, we do not think that the Appeal raises any substantial question of law. The Same, therefore, deserves to be dismissed.
Allowability of bad debts claim - Held that:- The Assessee is engaged in the business of money lending. Merely because the Assessee does not have license to conduct this business, does not mean that the claim of bad debts should be denied. The Commissioner has in relation to this claim held in his order at the Tribunal's order in the case of B. N. Khandelwal v/s Income Tax Officer [2007 (5) TMI 352 - ITAT MUMBAI] would assist the Assessee inasmuch as the amount is lent in ordinary course of money lending business. It was written off after making efforts to recover.
The effort was unsuccessful. In such circumstances, the Tribunal did not commit any error in reaffirming the conclusion of the Commissioner of Income Tax (Appeals) and which is to be found in paragraph no. 4.2 of the Commissioner's order. The present Appeal also is continuation of the attempt by the Revenue to question such findings. The findings being purely of fact, the same do not raise any substantial question of law. The Appeal is, therefore, dismissed.
-
2014 (7) TMI 1270
Disallowance being written off as irrecoverable - allowable deduction u/s 37 - Held that:- CIT(A) has not given cogent reasoning while upholding the order of the Assessing Officer and he has simply stated that the amount in question being TDS cannot be said to be business expenditure of the assessee company and therefore, the same could not be allowed. According to us, the order of CIT(A) is non-speaking one as it contains no reasoning. In the absence of reasoning, the order cannot be upheld - restore this issue to the CIT(A) with a direction to decide the same as per fact and law after providing due opportunity of being heard to the assessee
Disallowance out of foreign travel expenses - Held that:- The expenses related to foreign travel of Shri Aditya Bhartia, his wife Payal Bhartia and his father Radhe Shyam Bhartia. Based upon the findings for A.Y. 2007-08, the Assessing Officer held that there was no justification for foreign travel of Smt, Payal Bhartia and Shri Radhe Shyam Bhartia, Accordingly, he disallowed ₹ 4 lacs treating the same as non-business expenditure, which was confirmed by the CIT(A). Taking over all view and in the interest of justice, we restrict the disallowance to ₹ 2 lacs.
Disallowance of the claim u/s.80IB(3)(ii) - Held that:- CIT(A) was justified in rejecting the claim of the assessee following the decision of similar issue decided by the Tribunal in Samruddhi Industries Ltd. (2011 (3) TMI 696 - ITAT, PUNE) holding that the assessee is not entitled as it did not continue SSI during the assessment year under consideration. This reasoned finding of CIT(A) needs no interference from our side. We uphold the same.
Allowability of MAT Credit - Held that:- CIT(A) erred in not adjudicating the ground No.6 of the assessee. The learned Departmental Representative could not dispute the same. So in the interest of justice, we restore this issue to the file of CIT(A) with a direction to decide the same after providing due opportunity of being heard to the assessee.
Allow the deduction u/s.80IA(4)(iv)(a) without deducting brought forward loss or unabsorbed depreciation prior to initial year on notional basis
Disallowance of deduction u/s.35(2AB) - Held that:- The approval u/s.35(2AB) of the Act has been accorded to R & D unit of assessee company from 01.04.2009 to 31.03.2012 which entitles the assessee to claim weighted deduction u/s 35(2AB) from A.Y. 2010-11. Relying upon clear cut finding of Hon'ble Delhi High Court in the case of Apollo Tyres Ltd. (2010 (4) TMI 48 - DELHI HIGH COURT) the action of the Assessing Officer denying the deduction u/s. 35(2AB) of the Act was rightly upheld by the CIT(A). As directed Assessing Officer to restrict the disallowance u/s. 35(2AB) of the Act to ₹ 85,39,848/-. This reasoned finding of CIT(A) needs no interference from our side. We uphold the same.
Disallowance on account of foreign travel expenses - AO made disallowance on account of non-business expenditure and the same was upheld by the CIT(A)- Held that:- A similar issue in assessee's own case for A.Y. 2008-09 has been decided vide para 5 of this order. Facts being similar, so following the same reasoning and taking all facts into consideration, we restrict this disallowance to 2,70,000/-.
-
2014 (7) TMI 1269
Disallowance u/s 14A - expenditure in relation to exempt income - Held that:- The expenditure, which has to be disallowed, has to be in relation to exempt income. The assessee before us has demonstrated that expenses incurred by it, to a large extent pertain to amalgamation of ten companies. This expenditure cannot be attributable to the earning of exempt income. This expenditure has to be excluded while computing disallowance u/s 14A with regard to administrative expenses. As a detailed verification is to be done, we set aside the issue to the file of the Assessing Officer for fresh adjudication in accordance with law. It is for the assessee to make its contentions before the Assessing Officer.
The Jurisdictional High Court in the case of Maxopp Investment Ltd. (2011 (11) TMI 267 - Delhi High Court ) has clearly laid down that no disallowance can be made u/s 14A of the Act, if no expenditure is incurred in relation to the exempt income. This proprietary has to be applied by the Assessing Officer. - Decided in favour of assessee for statistical purposes.
-
2014 (7) TMI 1268
Adjustment of accumulated unabsorbed depreciation allowance brought forward as against income from house property and income from other sources - whether the assurance of the Finance Minister in Parliament that set-off of the cumulative unabsorbed depreciation brought forward from earlier years as on April 01, 1997 can be set off against the profits and gains of a business or profession or any other income of the tax payer for the assessment year 1997-98 and subsequent year forms part of the legislative intent and any construction contrary thereto is erroneous? - Held that:- the provisions introduced suggest that the unabsorbed depreciation allowance could not be wholly set off against the profits and gains, if any, of any business or profession carried on by the assessee. The unabsorbed depreciation allowance could be set off from the income under any other head during the assessment year 1997-98. If the unabsorbed depreciation allowance could not be wholly set off during the assessment year 1997-98, the left over could only be set off against the profits and gains, if any, of the business or profession in the assessment year 1998-99. This submission of Mr. Agarwal appears to be plainly correct on the basis of the wordings used in sub-section (2) of Section 32 as amended by the Finance (No.2) Act, 1996 with effect from 1st April, 1997. Both the questions are answered in the negative and in favour of the revenue.
Another submission advanced by Mr. Bagchi that the unabsorbed depreciation of the previous year becomes depreciation of the current year as would appear from the Circular issued by the CBDT which has also been taken into account by the learned Tribunal may be correct, but that does not materially alter the situation. The intention of the legislature appearing from the amendment made by the Finance (No.2) Act, 1996 is that the depreciation unabsorbed or otherwise or current would be set off against the income arising from business or profession or any other income, but the left over portion thereof could not be set off in the assessment year 1998-99 except against the income arising from business or profession. Therefore, this submission of Mr. Bagchi does not help his case nor does the same lead to a different result of the appeal.
-
2014 (7) TMI 1267
Interpretation of statute - consumer and commercial purpose - The case of the Appellant being Punjab University is that UTI failed to honour the assurance of 13.5% per annum returns and that they were in breach of contract as they invested more than 20% in equity markets owing to which the NAV fell and the same amounts to deficiency of services - whether the complainant-Universities fall within the ambit of the definition of "consumer" as laid down in Section 2(1)(d) of the Act and that the "services" hired by them are not for any "commercial purpose"?
Held that: - the words 'commercial purposes' would cover an undertaking the object of which is to make a profit out of the undertakings. In the present case the services of UTI were availed by the complainant for the betterment of their employees, that such an investment was made, and it is to be made clear that no benefit by way of profit was to accrue to the complainant, improving its balance-sheet, in view of the definition of the word 'commerce' given above, under no circumstances, the Appellant could be said to be indulging in any 'commercial' activity, thus excluding him from the definition of 'consumer' as enshrined in the Act. The intent of the Universities in the present dispute is not profiteering and the same is for benevolent interest and there is no intention whatsoever that the investment is made for any commercial purpose or gain and therefore we find that the complainant Universities fall within the definition of "consumer" under the Act and the complaints are maintainable before the National Commission.
Whether in terms of the offer, is there any deficiency of services? - Held that: - It has been clearly stipulated in the 'terms of offer' that the maturity amount will depend on the NAV and that the same was guaranteed not to be below the par value of ₹ 10 per unit. All investments are subject to markets risks and fluctuations and an investor has to exercise due caution while investing any amount in any Scheme just because the maturity amount is below their expectations they cannot drag the service provider to Court for the same.
The University would come within the purview of "consumer" as defined in Section 2(1)(d) of the said Act.
Appeal dismissed - decided against appellant.
-
2014 (7) TMI 1266
Input tax credit - full deduction - as the assessee has failed to maintain evidence to segregate non-deductible input tax relating to exempt transactions it has failed to establish the claim of deductible input tax on direct method as explained to segregate non-deductible input tax - Held that: - it is clear that the input tax in relation to any registered dealer means tax collected or payable under this Act on the sale by him on any goods for use in the course of his business. Output tax in relation to any registered dealer means, the tax payable under this Act in respect of any taxable sale of goods made by the dealer in the course of his business. Sub-rule (3) of Rule 10 makes it clear that subject to input tax restrictions specified in Sections 11, 12, 14, 17, 18 and 19, net tax payable by the registered dealer in respect of each tax period shall be the amount of output tax payable by him for that period less input tax deductible by him, as prescribed in that period.
Merely because the said de-oiled cake also has a value and he sells the same, there is no justification to deny the benefit of deduction to the assessee, because there is no direct nexus between the sunflower oil cake and the de-oiled cake. Sunflower oil cake was purchased for the purpose of extracting oil from the said cake and for the sale of the de-oiled cake, the assessee has not put-up a separate unit. Therefore, it is not the case that assessee has put-up a separate industry for the purpose of manufacture of de-oiled cake and merely because the de-oiled cake has some value and it is sold, that would not take away the benefit conferred on the assessee by the statute. A harmonious interpretation of Sections 10, 11(a)(1) and 17 of KVAT Act and Rule 131 of the Karnataka Value Added Tax Rules, 2005, makes it very clear that it is only when there is direct relationship to the taxable sales, the assessee is entitled to the benefit.
The assessee is entitled to the benefit of 'Full Input Tax Deduction' - appeal allowed - decided in favor of appellant.
-
2014 (7) TMI 1265
Compensation for giving up right to receive pension - nature of receipt - assessee had to surrender his right to receive pension on account of the partners of the erstwhile Arther Anderson joining S.R. Batliboi & Co - Held that:- The ratio decided by the Hon’ble Delhi High Court in the case of Khanna and Annadhanam [2013 (1) TMI 681 - DELHI HIGH COURT] applies in all force, thus respectfully following it, the Assessing Officer is directed to treat the lump sum received by the assessee on giving up the right the receipt of retirement benefit as capital receipt in the hands of the assessee.
-
2014 (7) TMI 1264
Benefit of Section 54(1) in respect of the second residential property purchased by him - whether purchase of “a residential house’ as mentioned in Section 54(1) means ‘one residential house’ only? - Held that:- From the facts it is clear that having sold the property in Basavanagudi, probably, as the assessee could not secure a proper residential house sufficiently big to invest the entire sale consideration derived from the sale of residential house, he has chosen to purchase two properties nearby. In fact to purchase a second property, the balance consideration was not sufficient.
Therefore, in the sale deed in respect of the second residential house, the name of his wife who is a doctor by profession as well as his father’s name are included who might have contributed the balance sale consideration. So it is not a case where the assessee is attempting to evade tax. He had made a bonafide attempt to invest the sale consideration from the sale of residential premises in purchasing two residential premises in the very same locality situated nearby. - Decided in favour of assessee
-
2014 (7) TMI 1263
Disallowance of depreciation claimed on Wind Mill on the reasons that it has been incurred for development of the infrastructure of the land - Held that:- From the nature of various payments, it is clear that separate amounts towards earth work and the foundation; erection and commissioning have already been paid to Suzion Infrastructure Ltd. Hence, in our opinion, the payments made to TNEB are not towards development of land infrastructure, foundations, erection and installing and commissioning etc., which in the sense of terminology of development of windmill are actually infrastructure charges.
we are of the opinion that these charges paid to TNEB are for evacuation of land, towards fee of NOC of land and its registration and supervision charges to make unhindered land available and ensure technical specifications. Accordingly, the same cannot form part of the plant and machinery of windmill to be eligible for depreciation. In view of the above facts and circumstances of the case, we are of the considered opinion that the lower authorities are right in treating the payment towards permission for land utilization, NOC and registration of land and has rightly capitalized them with the cost of land and denied deprecation on this payment - Decided against assessee
Addition towards interest on investment expenditure incurred in new the line of business - Held that:- In order to allow as the amount of interest paid in respect of capital borrowed for the purpose of business must be of an existing business. In this case, as the business was not set up at the time of incurring the interest; therefore, no question of allowance of interest is allowable u/s 36(1)(iii). Whether this was a part of new business or not was a fact, which was for the assessee to establish and the assessee was failed to establish the fact even before us. Being so, it is not possible to uphold the contention of the assessee. In the premises, the lower authorities were right in disallowing the proportionate interest expenditure relating to the investment made in the new line of business - Decided against assessee
-
2014 (7) TMI 1262
Penalty u/s 271(1)(c) - disallowance made u/s 40(a)(ia) - Held that:- The disallowance has been made only on the reason that TDS has not been deducted by the assessee on the said expenditure.
Delhi High Court in the case of CIT Vs. AT & T Communications Services India Pvt. Ltd.(2012 (2) TMI 8 - DELHI HIGH COURT ), has held that invoking the provisions of section 40(a)(ia) for making disallowance should not be ground for the levy penalty u/s 271(1)(c) of the Act. Also, in the case of New Horizon India Ltd. Vs. DCIT ( 2010 (5) TMI 653 - ITAT DELHI) the Delhi Bench of the Tribunal has deleted the penalty levied u/s 271(1)(c) of the Act on account of disallowance made u/s 40(a)(ia) of the Act on the ground that the assessee cannot be held guilty of concealment or furnishing of inaccurate particulars of income on account of disallowance made u/s 40(a)(ia) - Decided in favour of assessee.
-
2014 (7) TMI 1261
Disallowance of expenses incurred on temporary erections and site accommodation - Held that:- The assessee has been maintaining proper books of account and in the light of the nature of activities undertaken by the assessee, we find force in the contentions of the learned counsel for the assessee that at every site temporary constructions are made and a particular percentage of expenditure is debited to the account under the head "temporary site accommodation" and whatever materials were left out from the site they are being reutilized further. Therefore, no excess claim was raised by the assessee. Since no disallowance was ever made in earlier assessment years, we find no justification in the disallowance made in this very assessment year, as the AO cannot blow not and cold in the same breath by admitting the claim of the assessee in one assessment year and denying the same in the succeeding assessment year. We are, therefore, of the view that the claim of the assessee is reasonable and is allowable - Decided in favour of assessee.
Disallowance of expenses incurred on shuttering, centering, scaffolding, etc. - Held that:- The assessee has been debiting a particular amount per cubic metre to the cost of the project as expenses incurred in shuttering, centering, scaffolding, etc. keeping in view the complexity of nature of work. Copy of the office circular is available at p. 54 of the compilation of the assessee, in which guidelines have been laid down for debit of ₹ 600 per cubic metre on account of shuttering, centering, scaffolding, etc. Keeping in view the totality of the facts and circumstances of the case and the nature of complexity of the work, we are of the view that the assessee's claim of expenses on shuttering, centering, scaffolding, etc. raised as per circulars issued by the department is an allowable expenditure in the light of the order of the Tribunal in the assessee's own case. It is also evident from the record that in earlier year no disallowance was made on this account. Therefore, following the rule of consistency, disallowance cannot be made in the impugned assessment year without any valid reason. We accordingly find no merit in the disallowance and we set aside the order of the learned CIT(A) and delete the addition in this regard.
Disallowance of deduction under s. 80-IA - Held that:- We find that the claim of deduction under s. 80-IA of the Act was allowed in asst. yrs. 2005-06 and 2007-08 by the AO himself and in asst. yr. 2003-04 the claim was disallowed, but later on it was allowed by the learned CIT(A) and the Revenue has not challenged the order of the learned CIT(A) before the Tribunal. Therefore, it attained finality. Therefore, in the light of these facts, we find no infirmity in the order of the learned CIT(A) who has rightly allowed the claim of the assessee under s. 80-IA of the Act. Accordingly, we confirm the order of the learned CIT(A) on this issue.
Addition of provision for "foreseen loss" - Held that:- we find that the assessee has not placed any evidence on record to demonstrate the basis for making provision for "foreseen loss". No doubt, foreseen loss may be possible in the business of the assessee as it is engaged in complicated construction work, but without any basis provision for foreseen loss cannot be created. We are, therefore, of the view that whenever loss is suffered, it can be debited to its P&L a/c and the Revenue may allow the same after making necessary verification. Accordingly, we hold that in the impugned assessment year provision for foreseen loss cannot be allowed, but the assessee will be allowed to debit the actual loss suffered by it in any of the assessment years and the same would be allowed by the Revenue after making necessary verification.
Disallowance of prior period expenses booked in this year - Held that:- As we have confirmed the addition having noted that the assessee could not place any evidence to establish that the prior period liabilities have been crystallised in the impugned assessment year. Similar is the position in the instant case, as nothing is placed on record to establish that the liabilities for earlier years have been crystallised in the impugned assessment year. Accordingly, following the view taken in the foregoing paras, we confirm the addition.
Non-deduction of TDS - assessee has submitted that the payment was made in the nature of advance, therefore, the same cannot be disallowed on non-deduction of TDS - Held that:- This issue requires a fresh adjudication by the lower authorities after necessary verification with regard to the nature of payment. Accordingly, we set aside the order of the learned CIT(A) and restore the matter to the file of the AO with a direction to adjudicate this issue in the light of evidence with regard to the nature of payment. Accordingly, this appeal of the assessee is disposed of.
-
2014 (7) TMI 1260
Allowability of deduction under Section 80-IB - whether the activity undertaken by the assessee qualifies to be a manufacturing activity? - Tribunal allowed the claim - Held that:- The Division Bench of this Court in "CIT v. Arts & Crafts Exports" [2011 (12) TMI 338 - Bombay High Court] held that whether the decision of the Tribunal in the case of assessee for earlier year that the assessee was engaged in manufacturing activity and, therefore, entitled to deduction under Section 80-IB, had been accepted by the revenue and no argument was advanced to establish that the said decision of the Tribunal was erroneous, allowability of deduction under Section 80-IB of the Act during relevant previous year could not be assailed by the revenue. The facts of this case and present cases are similar. The ratio of this decision, in our view, is perfectly applicable to the present cases. - Decided in favour of assessee
-
2014 (7) TMI 1259
Application filed u/s 12A - rejection of claim holding that the Assessee was not engaged in charitable activities - Held that:- It is not the case of the Assessee that it is running a normal schooling for sports. Therefore, we hold that the Assessee‟s activities do not fall within the term “education”.
CIT has used material behind the back of the Assessee for rejecting the registration and has not given him proper opportunity, we, therefore, with our above observation set aside the order of CIT and restore this issue to the file of CIT with the direction that the CIT shall look into the matter of registration of the institution afresh after giving proper and sufficient opportunity to the Assessee to prove that the objects for which the Assessee institution is created are genuine and are for charitable purposes. We may clarify that while considering the application of the Assessee for registration, the CIT should not apply proviso to Sec. 2(15) retrospectively. If he so choses that in view of the proviso inserted w.e.f. 1.4.2009 the activities carried on by the Assessee no more remains charitable as per the amended definition of Sec. 2(15), he may pass an order u/s 154 rectifying his order withdrawing the registration of the Assessee in case he grants registration to the Assessee w.e.f. 1.4.2009 by passing a specaking order. - Decided in favour of assessee for statistical purposes.
-
2014 (7) TMI 1258
Illegal arrest and unlawful detention of husband Dr. N. Pravakar Babu (hereinafter 'the detenue') of petitioner - fundamental rights alleged to have been violated in the present case by the arresting officer while arresting and detaining the detenue - Whether 1994 TOHO Act will be applicable since the donor and the recipient belong to State of Odisha in view of the peculiar facts and circumstances of the case when no approval/no objection certificate has been taken from the Authorisation Committee constituted by the State of Odisha under clause (b) of sub-section (4) of section 9 of the said Act? - Whether the concerned hospital authorities have followed the procedure laid down in 1995 A.P. TOHO Act and the Rules framed thereunder so also the guidelines issued by Govt. of Andhra Pradesh in this case while carrying out kidney transplantation operation? - Whether an F.I.R. under section 19 (subsequently added section is section 18) of the 1994 TOHO Act can be registered at Mangalabag Police Station and whether Mangalabag police has jurisdiction to investigate such case and arrest the detenue? - whether arrest is illegal, unauthorized and is in violation of Article 22(1) of the Constitution of India?
Held that:- We are of the view that since in the present case the donor and the recipient both belong to State of Orissa, the Authorisation Committee constituted under clause (b) of sub-section (4) of Section 9 of 1994 TOHO Act by the State Government is the competent authority and no objection certificate should have been obtained from such Authorization Committee. In the case in hand, as no approval/No-Objection Certificate of the Authorisation Committee constituted by the State Government of Odisha has been taken, we are of the prima facie view that the provisions of 1994 TOHO Act and the rules framed thereunder have been violated.
Article 22(1) of the Constitution of India provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. Section 50(1) Cr.P.C. states that every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. The two requirements of clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the mind of the arresting authority and also to know exactly what the accusation against him is, so that he can exercise the second right, namely, consulting a legal practitioner of his choice and to be defended by him. The fundamental right secured to a arrested person by Article 22(1) is to give protection against such arrest as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has or is suspected to have committed or is about or likely to commit any offence prejudicial to the public or the State interest.
In the present case, the arrest was made without an order from a competent Magistrate and without a warrant. The ground of arrest was not communicated to the detenue. Thus, we are of the view that there is violation of Article 22(1) of the Constitution of India read with Section 50 Cr.P.C. Section 57 Cr.P.C.
In view of the facts and circumstances of the case, we are granting interim bail to the petitioner till final disposal of this writ petition. Let the petitioner be released on interim bail on furnishing bail bond of ₹ 10,000,00/- (Ten lakh) with two solvent local sureties each for the like amount to the satisfaction of the learned S.D.J.M., (Sadar) Cuttack in G.R. Case No. 950 of 2014 arising out Mangalabag P.S. Case No. 98 of 2014 with a further condition that he shall deposit cash security of ₹ 2,000,00/- (Two lakh) in the shape of fixed deposit in his name or in the name of any of his family members in any Nationalised Bank which shall be pledged in the name of the concerned Court and shall be renewed from time to time till disposal of the case and may be appropriated as compensation, if any, found payable by the petitioner. The learned S.D.J.M., (Sadar), Cuttack is at liberty to fix any other suitable terms and conditions.
-
2014 (7) TMI 1257
Allowing the deduction u/s 80IA - Held that:- This is an undisputed fact that the assessee made a claim u/s 80IA of the Act for the first time in A.Yr.2004-05 which was disallowed by the AO. Before the ld. CIT(A) the assessee has filed an appeal for A.Yr.2004-05 but the ld.CIT(A) has for the first time allowed the eligibility of the claim of the assessee u/s 80IA of the Act during A.Yr.2006-07 as that appeal was heard first. In the appellate order for A.Yr.2006-07, the CIT(A) after examining the claim of the assesee took a view that the assessee is eligible for the claim of deduction u/s 80IA.
The order for A.Yr.2006-07 had been followed in A.Yr.2004-05, 2005-06, 2007-08 and 2008-09 by the CIT(A). In view of this fact in A.Yr.2006-07 in which the claim of the assessee u/s 80IA was examined on merit for the first time by the CIT(A). The CIT(A) not serving the notice to the AO has violated the provision of sub-sections (1) and (2) of section 250 of the IT Act and thus denied the natural justice to the Revenue so that the Revenue could have placed its case before the ld. CIT(A). Therefore we hold that the order passed by the ld. CIT(A) is in violation of principles of natural justice and we therefore set aside the matter to the file of the ld. CIT(A) with the direction to the ld.CIT(A) to give the AO proper and sufficient opportunity of being heard and to decide the issue afresh in accordance with law.
Since we have set aside the order of the ld. CIT(A) for A.Yr.2006-07 in which the CIT(A) for the first time allowed the claim of the assesse u/s 80IA of the Act and in subsequent year CIT(A) allowed the claim of the assessee u/s 80IA of the Act by following the order for A.Yr.2006-07. We, therefore, set aside the order of the ld. CIT(A) for A.Yr.2004-05, 2005-06, 2007-08 and 2008-09 also and restore the issue involved to the file of the ld. CIT(A) with the direction that the ld. CIT(A) shall redecide the appeal for all these assessment years afresh after deciding the appeal for the A.Yr.2006-07. - Appeals filed by the Revenue are allowed for statistical purposes.
-
2014 (7) TMI 1256
Conviction and sentence passed against the appellants for the offence under Section 364, 302 and 201 read with Section 34 IPC - murder of Manikandan - Held that:- In the FIR, Valarmathi (PW-1) had not disclosed the presence of Amirthavalli (PW-2) and Murugan (PW-4) at the scene of occurrence at Mariyamman Temple. Nothing was stated with regard to Amirthavalli (PW-2) and Murugan (PW-4). Valarmathi (PW-1) did not disclose the presence of Amirthavalli (PW-2) at the scene of occurrence. The deceased was last seen with accused Nos.1 and 4 by Village headman by name, super supparayan, who said to had been present at the place where the deceased was last seen in the company of accused, was neither named as prosecution witness nor examined. There was inordinate delay of more than six days in filing the complaint about the missing of Manikandan but Valarmathi (PW-1) has not explained the delay in lodging such complaint.
In the present case as noticed above, the Sessions Judge convicted the accused Nos.1 to 3 on the basis of last seen evidence, the correctness of last seen version emanating from eye witness Valarmathi (PW-1), Amirthavalli (PW-3) and Murugan (PW-4) and as per the prosecution case is also doubtful, there being contradiction about place where the accused were last seen with the deceased Manikandan. The High Court had failed to appreciate the aforesaid fact and erred in affirming the order of conviction passed by the Sessions Judge.
For the reasons aforesaid, we set aside the impugned judgment passed by the High Court of Judicature at Madras and impugned order of conviction and sentence passed by the Sessions Judge. The appeal is allowed. The appellants are directed to be released forthwith, if not required in any other case.
-
2014 (7) TMI 1255
Lenders exclusive charge on a specific asset - lenders assets of the project kept outside the ambit of the proposed CDR package - proof of Curtailment of contractual rights of the plaintiff - modifications in the proposed CDR Package seeked - Held that:- It is rightly argued by Mr.Sethi and it appears to the Court that the defendant No.3 (ICICI Bank) has given consent to the CDR Package because they are a part of the CDR Mechanism in question and as the defendant No.3 has a higher exposure in the working capital facility as opposed to the term loan facility. Therefore, the defendant No.3 has joined the CDR scheme even if ICICI Bank has consented and other banks who are not a party to the Rupees Term Loan agreement dated 17th May, 2011, there is no obligation on the plaintiff to consent as well.
From the entire gamut of the case, this Court is of the view that the lenders having exclusive charge on a specific asset cannot be forced to share their charge on the security. The said assets are to keep outside the ambit of the proposed CDR package. The said assets of the project shall continue to be charged exclusively to the term lenders of the said project and security on the said assets of the project shall not be shared with other lenders of the defendant No.1. The defendants No.1 & 2 in the present case want to proceed with a CDR package by violating the contractual rights of the plaintiff.
The plaintiff in the present case admittedly sought modifications in the proposed CDR Package as the plaintiff and the defendant No.3/pro-forma defendant had extended financial assistance for purposes of funding the said project and that as a security, a first charge was created in favour of the Security Trustee exclusively for the benefit of inter alia the plaintiff and the defendant No.3/pro-forma defendant herein qua the said assets of the said project.
Therefore, the prayer made in the application under Section 151 CPC for modification and under Order XXXIX Rule 4 CPC for vacation of ex- parte order, cannot be allowed as there is no merit in the said applications. The same are dismissed. However, it is clarified that if defendants No. 1 and 2 shall keep the said assets of the project outside the ambit of the proposed CDR package, they may continue with the said scheme but they cannot force the plaintiff to share their charge on the security. In view of the aforesaid reason, similar is the position filed by defendant No.3. The prayer made in the applications cannot be granted. The said application filed by defendant No.3 is accordingly dismissed. Another application filed by State Bank of Patiala under Order 1 Rule 10 CPC is also infructuous and the same is dismissed.
-
2014 (7) TMI 1254
Maintainability of petition - Transfer/transmission of all the shares - time limitation - Whether petition is barred by limitation? - Held that: - from bare reading of the contents of the correspondences dated 26th November, 1992 (Annexure 11), 28th October, 1992 (Annexure 12), and 10th February, 1998 it is seen that the petitioners were having knowledge of the entire affairs with respect to the shares in question from beginning - In the present case, although it has been argued that the petitioner came to know only in the year 2009 when their application for transmission/transfer of shares was refused by the respondent-company, however, from the appreciation of the pleadings and the evidence produced by the parties discussed hereinabove, in my opinion, it is proved that the petitioners had knowledge since for the last so many years, but despite having knowledge they did not approach the CLB for the appropriate reliefs knowing fully-well that they have not genuine claim in respect of the shares in question - the petition is time barred and is liable to be dismissed.
Whether reliefs sought by the petitioners relate to question of title of immovable property and complicated question of facts and law are involved and, therefore, the Company Law Board ('CLB') has no jurisdiction to entertain this petition, and, thus, the parties are required to be relegated to civil court? - Held that: - As is evident from the perusal of the pleadings, the present dispute relate to transmission of shares by a claimant claiming on the basis of legal heir-ship as well as a legatee of the Will executed by his late Father. It has nothing to do with the property and, therefore, I am inclined to accept the contention of the petitioners that under sections 111 and 111A of the Act, is entitled to entertain the petition one has jurisdiction to try the same - no serious question of facts and law is involved and the parties need not be relegated to the civil court for the purpose of adjudication of their rights as to the title of the shares in question. I, therefore, do not find any force in this objection of the respondents and the same is rejected.
Whether, the petitioners have suppressed material and vital fact and have not approached this forum with clean hands, if so its effect? - Held that: - This issue was not seriously agitared by the learned counsel for the respondents. I also do not see any substance in this plead. It is, therefore, answered in negative.
Whether the name of the late Mr. Mohanlal Dalwani in respect of 15 shares and 49 shares in question was illegally entered by the respondent No. 1-company in violation of AoA of the company, if so its effect? - Are the petitioners entitled to the shares in question related to Flat No. 6B in dispute? - Held that: - I have no hesitation to hold that the company had rightly distributed the shares on the basis of the Will. I do not find any irregularity or illegality in the recording of the names of the shareholder by the company in the register of members. Therefore, the impugned resolution is perfectly valid and does not require to be cancelled.
The petitioners have failed to prove that the company has refused the transmission/transfer of shares without sufficient cause. They have further failed to prove that the name of late Mohanlal Daliwani was wrongly entered in the register of members of the company without sufficient cause, I have already held hereinabove that the petition is time barred. Thus, the petition is without devoid of substance and deserves to be dismissed.
Petition dismissed - decided against petitioner.
............
|
9911796707
