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Showing 141 to 160 of 1278 Records
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2014 (11) TMI 1141 - DELHI HIGH COURT
Action for contempt - compromise decree entered - partition proceedings among HUF - Held that:- No doubt, Rajiv Gupta, respondent No. 1, had filed a suit for partition against L.R. Gupta (his father) in the capacity of HUF, his mother and his brother, Sanjay Gupta, which was compromised on 9.1.2006 in terms of which, a compromise decree has been passed. Even if it is assumed that in terms of the compromise, the respondent herein has been able to obtain title to two properties situated in Vasant Vihar and has now tried to retrace his steps so as to wriggle out of the compromise after having obtained an advantage, it does not in my view result in any wilful disobedience of the order passed by the court. In the language of court which passed the order on 9.1.2006, there is no direction, order or judgment passed by the court. All that it is noted in the order is that this is a suit which has been settled in terms of the compromise arrived at between the parties. Thus, in my view, prima facie there is no undertaking given to the court.
The petitioner in his petition has already observed that he has already applied for execution of the decree. Having chosen to file an execution petition for getting the decree executed, it is not open, in my view, for the petitioner to file the present contempt petition or in other words, it can be assumed that the present petition has been filed by the petitioner only with a view to bring to bear pressure on the respondents to succumbs to the settlement in terms of the compromise, which cannot be permitted to be done at the instance of one of the parties. The purpose of the contempt proceedings is not to satisfy the whims and fancies of one party nor compel the other party to submit to the dictates of the party, who has filed the contempt petition. The present contempt petition is totally misconceived.
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2014 (11) TMI 1140 - DELHI HIGH COURT
Interest on refund - grievance of the petitioner is that although the amount has been refunded to the petitioner, he has not received interest on the demand drafts for a sum of ₹ 1.70 crores, which were seized by respondent No.1 on 19.05.2001 - Held that:- In the event income tax has been deducted at source in respect of interest on a sum of ₹ 1.70 crores, it is obvious that the interest would have been credited to the account of the petitioner. In the circumstances, the petitioner would, indisputably, be entitled to interest on the amount refunded.
The amount that was seized from the petitioner has since been returned and, undisputedly, the respondents cannot profit from seizure of the amount in question. Mr Sanjay Jain, learned Additional Solicitor General who appears for respondent No.1 states that in the event any interest was earned and/or had accrued on the amount of ₹ 1.70 crores which was seized, the same would be paid to the petitioner.
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2014 (11) TMI 1139 - CESTAT, NEW DELHI
Utilization of CENVAT credit - interest on unutilized credit - Held that: - exchequer not being prejudiced in absence of finding that there was no sufficient credit on record while set off of duty liability was made against CENVAT credit account by appellant, appeal succeeds - appeal allowed.
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2014 (11) TMI 1138 - SUPREME COURT
Directions for appointment of an Arbitrator - proceedings under Arbitration and Conciliation Act - Held that:- Though one B.S. Kanda had signed the Agreement on behalf of M/s Kanda and Associates, the said entity also consist of the petitioners Nos. 2, 3 and 4. In the aforesaid situation, though the present petition under Section 11(6) of the Act may not be maintainable at the instance of the first petitioner, there is no reason to doubt the maintainability thereof at the instance of the petitioners Nos. 2, 3 and 4. The reliance placed on the decision of the Bombay High Court in Venkatrao A. Pai v. Narayanlal Bansilar & Ors. [1960 (8) TMI 94 - BOMBAY HIGH COURT], to contend that if two or more parties join in an action, dismissal of the action qua one petitioner entails the dismissal qua the others as well is wholly misplaced. No such ratio is discernible in the aforesaid judgment.
For the aforesaid reasons, the objections raised by the respondent - Company to the present petition must fail. Shri Justice B.Sudershan Reddy, a former judge of this Court is appointed as the sole Arbitrator.
All disputes including the disputes raised in the present petition are hereby referred to the learned sole Arbitrator. The learned Arbitrator shall be at liberty to fix his own fees/ remuneration/other conditions in consultation with the parties.
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2014 (11) TMI 1137 - KARNATAKA HIGH COURT
Offence punishable under Section 220 of the Companies Act - Held that:- All the director who are not accustomed to the act or the directions or instructions are not there to the directors from the Board of directors, they cannot be called as ‘officer in default’. Therefore, there must be specific allegation in the complaint that a director who is made as an accused in the complaint is either a managing director or whole time director or manager or secretary or the director who is having accustomed to the act or directed by the Board of directors as compliance officer.
In the absence of such specific allegations in the complaint, it cannot be said that the petitioner who is a director of the company is liable and can be prosecuted. Section 220(3) has to be established by means of facts in the complaint averments. In the absence of such averments in the complaint, in my opinion, such complaint is not maintainable.
Learned counsel for the petitioner also brought to my notice that considering the various decisions of different courts bearing in mind, the Central Government framed certain guidelines. The Ministry of Corporate Affairs has issued a circular in No.3/57/2011/CL-11 dated 29.07.2011 addressing to all the Regional Directors, all the Registrars of Companies and all Official Liquidators, some guidelines with regard to the prosecution of directors of the companies. The said circular at paragraph-5 subclause(b) says that;
It is further clarified that before taking penal action under the Companies Act, 1956 against the Directors, the following compliance should be verified by Registrar of Companies:-
Any persons amongst officers and employees other than Managing Director/Manager/Directors who has been charged by the Managing Director/Manager or Board of Directors with specific responsibility of complying with aforesaid provisions, in addition to Managing Director/Manager/Board of Directors as the case may be.
If by reading the circular as per paragraphs 5 and 6, it goes without saying that only on the basis of person being the director of the company, he should not be fasten with the liability but there should be specific responsibility entrusted to him by the company that if he commits any default in making such compliance, then only the said person is liable under the said provision. In my opinion, the said provisions and circular equally applicable to Section 220 also. Even otherwise, Section 220(3) is very much clear that the director should be accustomed with the act that means to say that he should be the complying officer or he should be fastened with such responsibility to perform duty as such and he has to comply the directions of the Board of directors.
Nothing has been stated in the complaint, whether this particular petitioner is accustomed with that act or whether he is directed by the Board of directors and the said director is specified as the complying officer. In the absence of such materials in the complaint itself, in my opinion, the complaint is not maintainable, so far as this petitioner is concerned. Hence, the same is liable to be quashed.
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2014 (11) TMI 1136 - CESTAT NEW DELHI
Business Auxiliary service - appellants are franchisee of BSNL for providing the service of promotion and marketing and distribution of various products of BSNL for which they were receiving commission - Held that: - reliance placed in the case of M/s. Daya Shankar Kailash Chand Versus CCE& ST, Lucknow [2013 (6) TMI 340 - CESTAT NEW DELHI], where it was held that activity of purchase and sale of SIM card belonging to BSNL where BSNL has discharged the service tax on the full value of the SIM cards, does not amount to providing business auxiliary services and confirmation of demand on the distributors for the second time is not called for - pre-deposit is waived - demand set aside - appeal allowed - decided in favor of appellant.
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2014 (11) TMI 1135 - ITAT DELHI
Addition on account of share capital/share application money - AO rejecting the evidence and details submitted by the assessee - Held that:- AO was not justified in rejecting the evidence and details submitted by the assessee without any further verification and examination of the same. We also observe that the AO made addition by accepting the statement of the alleged entry providers recorded by the Investigation Wing accepting the same as gospel truth without affording opportunity of cross-examination to the assessee.
See case of CIT vs Divine Leasing and Finance Ltd. (2008 (1) TMI 927 - SUPREME COURT) wherein dismissing the special writ petition of the department, their lordships held that if share application money is received by the assessee company from alleged bogus shareholders whose names are given to the AO, then the department is free to proceed to reopen their individual assessment in accordance with law. Under the facts and circumstances of the present case, we are in agreement with the conclusion of the CIT(A) that once the identity of the investor has been manifested and proved by the assessee by submitting their names, addresses, PAN Nos. and other relevant details, then the capital receipt of share application money cannot be said to be the undisclosed income of the assessee and addition u/s 68 of the Act is not sustainable. However, the AO is free to proceed to reopen the individual assessments of the respective persons who provided share capital money. - Decided in favour of assessee.
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2014 (11) TMI 1134 - MADRAS HIGH COURT
Provisional Order of Attachment - PMLA - issue of notice - Held that:- If a complaint has been registered against an individual and the complaint is under investigation, his case would at least be covered by second proviso. To say that a person accused of committing an offence will not even come within the meaning of the expression "any person" under the second proviso, would tantamount to placing him in a much better position than a third party who do not commit any offence, but merely came into possession of the property that represents the proceeds of the crime. Therefore, on the first contention raised by the petitioner, hold that if a complaint has been registered against a person and a final report is already filed, his case would be covered by the first proviso. But, if a complaint has been registered against a person and a final report has not yet been filed, he would stand along with any other person against whom no complaint is lodged, but who is covered by the second proviso to Section 5(1) of the Act.
Though the second proviso to Section 5(1) enables the Competent Authority to attach "any property of any person", the word "property" should be understood only in the context of the definition under Section 2(1)(v). Consequently, such property should also satisfy the following criteria, namely, (a) that it was derived or obtained directly or indirectly, (b) by any person, and (c) as a result of criminal activity relating to a scheduled offence.
Fortunately, the Adjudicating Authority is obliged under the proviso to Sub-section (2) of Section 8 to issue a notice to every person, who claims the property to be his own and to provide an opportunity of being heard even to such a person. Therefore, the Adjudicating Authority is obliged to issue a notice to LIC Housing Finance Limited. They have already issued show cause notices to the writ petitioners, though the petitioner in the second writ petition is not alleged of obtaining the property as a result of any criminal activity, to come within the definition of the expression "proceeds of crime". The Adjudicating Authority has power, why, even an obligation and a statutory duty under Section 8(2) to look into the evidence produced by the petitioner in the second writ petition and LIC Housing Finance Limited and to come to an independent conclusion as to whether the provisional order of attachment is to be confirmed or not. Therefore, I am of the view that the petitioners should submit themselves to the enquiry under Section 8(1).
It appears from the show cause notices issued by the Adjudicating Authority, that the first hearing of the case was slated for 10th November 2014. Since that date has expired, the Adjudicating Authority is directed to serve a fresh notice upon the petitioners as well as LIC Housing Finance Limited and all other interested parties, fixing a fresh date of hearing. On the fresh date of hearing, the petitioners as well as LIC Housing Finance Limited and all other interested parties shall appear before the Adjudicating Authority and submit their reply as well as evidence regarding the factual details. Thereafter, the Adjudicating Authority shall take note of what is stated above and record a finding in terms of Section 8(2).
With the above limited directions, the writ petitions are disposed of, rejecting the challenge to the provisional orders of attachment and to the show cause notices.
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2014 (11) TMI 1133 - ITAT PANAJI
Addition of entire cash deposits as unexplained investment. - Held that:- We noted that there are cash withdrawals to the extent of ₹ 1,35,000/- on 2.4.2008 and 29.3.2008. Therefore, to that extent we allow relief to the Assessee. The balance withdrawal and the salary relate to the earlier years. No evidence was placed before us that salary received by the Assessee was not consumed during those years and the Assessee was having the cash in hand. Therefore, we cannot accept the explanation of the Assessee as the explanation given by the Assessee is not plausible one. We also noted that the Assessee has claimed a sum of ₹ 50,000/- being the source of cash deposited received by him as interest from M/s. Shree Genji Electricals but not such evidence was brought to our knowledge. In view of provisions of Sec. 269SS and 269T M/s. Shree Genji Electricals cannot make cash payment to the Assessee. We, therefore, allow relief to the Assessee of ₹ 1,35,000/- out of the addition sustained by CIT(A) of ₹ 19,57,370/-. - Decided partly in favour of assessee
Unexplained cash credit - addition made by the AO on the basis of the statement recorded u/s 131 - Held that:- As noted that there was opening balance of ₹ 32,254/- also in the account of M/s. Shree Genji Electricals. Thus, the total credit as on 31.3.2009 in the books of M/s. Shree Genji Electricals’ in the account of the Assessee was only ₹ 21,66,331/-. There is no evidence except the statement recorded u/s 131 that the Assessee has deposited sum of ₹ 25 lacs with M/s. Shree Genji Electricals. In fact, we noted that the Assessee has deposited only a sum of ₹ 19,10,000/- which is also reconciled from the bank account of the Assessee. There is no corroborative evidence to hold that the Assessee has deposited more than ₹ 19,10,000/- with M/s. Shree Genji Electricals. We accordingly delete the addition of ₹ 5,90,000/-. - Decided in favour of assessee
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2014 (11) TMI 1132 - DELHI HIGH COURT
Refund claim - Held that: - there is no conclusive finding against the appellant i.e. the assessee. An order of remand has been passed keeping in view the facts of this case. The apprehension expressed by the appellant that the authorities would nevertheless and mandatorily reject the refund claim is presumptuous. If the Authorities reject the claim for refund, the appellant would be entitled to question and challenge the said order as per law - appeal disposed off.
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2014 (11) TMI 1131 - KARNATAKA HIGH COURT
Failure and neglect to hold the Annual General Meeting within the prescribed period - offence under Section 166(1) of the Companies Act 1956 - liability of petitioner as one of the director of the company - Held that:- As rightly contended by the learned counsel for the petitioner, it is only specifically stated that the petitioner who is accused No.3 in all the above said cases is only a Director of the Company.
Nowhere it is stated what role that has been given to the petitioner in the Company, what are his responsibilities and whether the Board has entrusted any of the responsibilities upon him and that he has committed any default under the above said specific provisions. In the absence of such elucidation of facts in the complaint, it cannot be said that the petitioner is liable for the prosecution merely because he is one of the Directors of the Company. Therefore, I am of the opinion that in none of the complaints there is any allegation made particularly against this petitioner that he has committed any default as stated in the above said four complaints. Therefore the complaints alleged against this petitioner, particularly his default is meritless and no prosecution can be continued against this man. Otherwise it would amount to abuse of process of Court. Therefore, the above said proceedings are liable to be quashed.
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2014 (11) TMI 1130 - ITAT DELHI
Excess value of stock - suppression of purchases or sales - Held that:- The addition on account of difference in stock can be made only on the basis of adequate material, but not arbitrarily. Admittedly, there was a difference between the value of stock declared to the bank and the Assessing Officer.
There was no dispute that the asssessee was maintaining books of accounts on day to day basis. The purchases and sales as on 31.3.2007 are supported by vouchers and the Assessing Officer had not pointed out any suppression of purchases or sales. Therefore, we find Ld. CIT(A) has rightly deleted the adhoc addition of ₹ 1,00,06,656/- made by the AO, which does not need any interference on our part, hence, we uphold the order of the Ld. CIT(A). - Decided in favour of assessee.
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2014 (11) TMI 1129 - BOMBAY HIGH COURT
Appeal is admitted and to that extent. It is admitted on the following substantial question of law:
“Whether on the facts and circumstances of the case and in law, the Tribunal was justified in deleting the disallowance made under section 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules?”
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2014 (11) TMI 1128 - BOMBAY HIGH COURT
Penalties - separate identity of proprietor and sole proprietory concern - Held that: - penalties have been set aside because of the fact that this sole proprietary concern has been already penalized. Therefore, the sole proprietor need not pay penalty separately - appeal dismissed - decided against Revenue.
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2014 (11) TMI 1127 - ALLAHABAD HIGH COURT
Maintainability of Application under Order XXII Rule 10 C.P.C. - Held that:- In the present case, the plaintiff-respondent, admittedly, has transferred his rights during the pendency of appeal. Therefore, it was always open to subsequent transferee to seek leave of the Court to prosecute the matter by moving an application under Order XXII Rule 10 C.P.C.
The petitioner has not only filed application under Order 1 Rule 10, but contested it and it is not the case where he ever took the stand that provision was wrongly mentioned by petitioner or his counsel. No such case was pleaded either before the Court below or even before this Court. Under Order 22 Rule 10 CPC, if the petitioner would have filed application, the same was liable to be considered by Court in order to grant leave in its discretion to petitioner, being subsequent transferee lis pendens, to continue proceedings from the stage he has joined, in place of original party who has transferred property to him. In that view of the matter, the petitioner would have been bound by stand taken by transferor/original party. Therefore, the proposition as above in my view has no application.
Be that as it may, the discussion made above makes it very clear that petitioner is not without any remedy but what he has been pursuing uptill now, was not in accordance with law. It is always open to petitioner to seek leave of the Court for prosecuting the case by submitting an application under Order 22 Rule 10 CPC which would then be considered by Court concerned in the light of observations made above and in accordance with law, but it cannot be doubted that his application under Order 1 Rule 10 CPC was clearly impermissible and has rightly been rejected by the Court below.
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2014 (11) TMI 1126 - SC ORDER
Application for recusal - company came to know the fact that the case had already been discussed with the Judge by the Revenue - the decision in the case of M/s COASTAL ENERGY PVT LTD AND OTHERS Versus COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX [2014 (8) TMI 246 - CESTAT BANGALORE] contested - Held that: - delay condoned.
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2014 (11) TMI 1125 - KARNATAKA HIGH COURT
Creation of provision of obsolescence in inventories - Held that:- Accounting Standards notified under Section 145(2) in particular Accounting Standard-I categorically states that the accounting treatment and presentation in financial statements of transactions should be covered by a substance and not merely by legal form. Further Section 145(A) provides notwithstanding anything to the contrary contained in section 145, the valuation of purchase and sale of goods and inventory for the purposes of determining the income chargeable under the head "Profits and gains of business or profession" shall be–(a) in accordance with the method of accounting regularly employed by the assessee.
Therefore, what is to be seen is how the assessee is maintaining the accounts regularly in the course of his business and the accounting treatment and presentation of financial statement of transactions should be covered by the substance and not merely by the legal form. It is the principle which is to be kept in mind by both the appellate authorities. The aforesaid material clearly demonstrate instead of showing cost price as nil in the profit and loss account, cost price of the items are given in profit and loss account and a provision is made for obsolescence in inventory showing that the market value is nil and that is the mode in which the assessee was also following even for the previous years. - Decided in favour of the assessee
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2014 (11) TMI 1124 - BOMBAY HIGH COURT
Claim of provision of “Mark-to-Market” on trading of derivative instruments in the profit and loss account - Held that:- The Registrar (Judicial)/Registrar, High Court, Original Side, Bombay to ensure that the original record in relation to this Appeal is summoned from the Tribunal and offered for inspection of the parties. This paper book is treated sufficient for the purpose of admission of this Appeal. However, the Registry must further ensure preparation of complete paper book in accordance with the Rules.
The Registry in the first instance must send intimation of admission of this Appeal enclosing therewith a copy of this order so as to enable the Tribunal to act accordingly.
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2014 (11) TMI 1123 - ITAT PUNE
Addition u/s 69 - Held that:- From the assessment order as well as the order of the Ld.CIT(A), we find no such opportunity whatsoever was granted to the assessee to cross examine Mr. Soni. From the seized documents, we find at one place it is written “Kajal’s Rashmi G” (pages 33 & 34 of paper book). Similarly, at another place, it is written “Rashmi Gandhi G.Kejals” in Hindi. Similarly, in another place, it is written “Kejals Ushicover” partly in English and partly in Hindi at page 62.
From the above, it is seen that the seized document clearly show different names. The submission of the Ld. Counsel for the assessee that the assessee does not deal with Pillow covers (i.e. Ushicover in Hindi) could not be controverted by the Ld. Departmental Representative. The Assessing Officer has also not summoned Mr. Rashmikant Gandhi to find out the veracity of the submission of the assessee firm that it has not lent any money to Mr. Sony. The notings in our opinion, do not clearly indicate that the firm has advanced any money. It may at best be that of one individual Mr. Rashmi Gandhi in whose hands addition could have been made. However, the Assessing Officer has not examined that person. Thus we hold that no addition is called for in the instant case.
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2014 (11) TMI 1122 - GUJARAT HIGH COURT
Entertaining the additional ground of appeal regarding the legality of intimation u/s. 143(1)(a) Held that:- We do not find that the Tribunal has committed any error in entertaining the additional ground of appeal regarding the legality of intimation u/s 143 (1)(a) of the Act. We therefore answer question no. 1 against the assessee and in favour of the revenue.
Cash seized adjustment against the advance liability - Held that:- The cash seized from the assessee firm, on an application given by the assessee before the end of the previous year relevant to the assessment year 1993-94, ought to have been adjusted against the liability of advance tax for the A.Y. 1993-94 by the revenue subject to payment under section 234(B) & (C) of the Act. In the present case, we do not find that assessee had any intention of shirking its advance tax liabilities and considering the provisions of law, the revenue ought to have considered the assessee’s application which was made well in point of time subject to provisions of sections 234 (B) and (C) of the Act. We therefore answer question in favour of the assessee
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