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Showing 141 to 160 of 1359 Records
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2015 (4) TMI 1223
Issue notice relating to direction no. (ii) and direction no. (viii) to the extent it relates to direction no. (ii) of the impugned order dated 29.01.2015 - Renotify on 07.09.2015.
In the meanwhile, there shall be stay of demand of the amount by way of service tax amounting to ₹ 100,05,78,705/- and the equivalent amount of penalty which form the subject matter.
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2015 (4) TMI 1222
Bail application - Section 21 of the MCOCA - the Special Judge in his order dated 31.07.2009 took the view that MCOCA was not applicable to Special Case No.1/2009 and consequently by invoking Section 11 of MCOCA, directed the case to be tried by the regular Court - Whether the common order of the Division Bench dated 19.07.2010 in having set aside the order of the Special Judge in Special Case No.1 of 2009 discharging the appellants from the said case on the ground that MCOCA was not applicable to the said case and consequently the case was to be tried by the Regular Court under Section 11 of MCOCA calls for interference? - Held that: - we are able to state the legal position without any ambiguity to the effect that in the event of a Judicial first class Magistrate or an empowered second class Magistrate having taken cognizance of an offence based on a police report as stipulated under Section 173(2)(i), such cognizance of an offence would fulfill the requirement of that part of the definition under Section 2(1)(d) of MCOCA. Once we are able to ascertain the said legal position by way of strict interpretation, without any ambiguity, we also wish to refer to various decisions relied upon by either party to note whether there is any scope of contradiction with reference to said legal position.
There is no scope even for the limited purpose of Section 21(4)(b) to hold that application of MCOCA is doubtful. We have held that the said appellant A-7 had every nexus with all the three crimes, namely, Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail under Section 21 would clearly operate against him and there is no scope for granting any bail. Insofar as the rest of the appellants are concerned, for the purpose of invoking Section 21(4)(b), namely, to consider their claim for bail, it can be held that for the present juncture with the available materials on record, it is not possible to show any nexus of the appellants who have been proceeded against for their involvement in Malegaon blast with the two earlier cases, namely, Parbhani and Jalna. There is considerable doubt about their involvement in Parbhani and Jalna and, therefore, they are entitled for their bail applications to be considered on merits.
Whether for the purpose of grant of bail under Section 21(4)(b) of MCOCA, can it be held that the application of the said Act is not made out against the appellants and consequently the rejection of bail by the trial Court and as confirmed by the learned Single Judge of the Bombay High Court is justified? - Held that: - The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.
Since the occurrence is of the year 2008 and nearly seven years have gone by, it is imperative that the Special Court commence the trial at the earliest and conclude the same expeditiously.
Bail application disposed off.
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2015 (4) TMI 1221
Application of registration under section 12AA rejection - absence of the dissolution-clause - Held that:- We find that the DIT-E had denied the registration to the assessee-trust because he was of the opinion that in absence of the dissolution-clause trust was not entitled for registration.We find that in the case of Tara Education and Charitable Trust [2014 (7) TMI 869 - ITAT MUMBAI] and Geeta Lalwani Foundation (2015 (1) TMI 1368 - ITAT MUMBAI)the Tribunal had held that absence of dissolution deed could not be the basis for refusing registration to a trust. - Decided in favour of assessee
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2015 (4) TMI 1220
Refund claim - time limitation - Section 11(B) of the CEA 1994 - Held that: - limitation issue has been dealt with before the adjudicating authority during adjudication and it was held that refund claim is not held by bar of limitation.
Scope of SCN - CENVAT credit - Rule 3(5)(b) of CCR, 2004 - Held that: - there is no issue in the SCN whether appellant is required to reverse Cenvat credit or not - Moreover, SCN itself clarify as per Rule 3(5)(b) of Cenvat credit Rules 2004 if the input or capital goods have been written off before use then the provision of said rules is applicable - provision under Rule 3(5)(b) of CCR, 2004 are not applicable to the facts of this case. Both the lower authorities have gone beyond the scope of the SCN.
Appeal allowed - decided in favor of appellant.
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2015 (4) TMI 1219
Input tax credit - TNVAT Act - application of mind - Held that: - It is not in dispute that the petitioner has submitted all the necessary details, more particularly the information such as Registration Certificate Numbers under the TNVAT Act of the sellers and dealers. Therefore, when the petitioner has initially discharged his burden as per Section 19(10)(a) of the TNVAT Act, showing that the goods have been subjected to tax at an earlier stage, the respondent ought to have considered the same - the Assessment Orders are passed without considering the objections and by merely taking note of the proposal of the Enforcement Officer - assessment orders are set aside - Assessing Officer is directed to re-consider each one of the objections raised by the petitioner and give reason - petition allowed by wayof remand.
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2015 (4) TMI 1218
Invocation of provisions of section 69B - expenditure on the purchase of land more than that was recorded in the books of account - addition on entries in the loose paper found during the search action - Held that:- There was no evidence that any extra cash other than the sale consideration as recorded in the deed had changed hands. No statement of the sellers of the land had been recorded. No other corroborative evidence has been produced on the file by the Revenue Authorities to substantiate their allegation. The addition in this case has been made on the basis of the entries in the loose paper found during the search action, which at the most can be considered to have raised a suspicion about the transfer of money other than the sale consideration, but the suspicion itself and solely cannot be held to be a justifiable ground for making the additions, especially in the absence of any corroborative evidence. Except the loose papers in question no evidence, what to say of any direct or corroborative evidence, even no circumstantial evidence has been detected or brought on record by the Revenue. Hence, the additions solely on the basis of suspicion, how strong it may be, in our view, are not sustainable in the eyes of law. Additions in this case under section 69B of the Act are not warranted. - Decided in favour of assessee.
Estimation of Annual Letting Value (ALV) of the vacant flats at Central Garden Complex - Held that:- ALV be computed as per the municipal rateable value as deemed income from house property. See case of Shri Anil Kashiprasad Murarka vs. ACIT [2014 (12) TMI 1304 - ITAT MUMBAI]
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2015 (4) TMI 1217
Applications for additional evidences - denial of natural justice - offence under SAFEMA - Held that:- After careful perusal of all the submissions and documents we are satisfied that the Competent Authority decided the case without giving a reasonable opportunity to the appellants to produce all the evidence before him. We are also guided by the fact that upon verification and examination, the submissions about the legal acquisition of the forfeited properties have been found to be acceptable by the ld. Authorized representative for the respondent. We accordingly allow both the miscellaneous applications for additional evidences filed by the applicants/appellants and take on record the additional documents filed by the appellants.
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2015 (4) TMI 1216
Disallowance under Section 40A(3) - cost of the land as well as additional payment - expenditure not claimed - Held that:- The issue as raised squarely covered by the order of the co-ordinate bench as reproduced in M/s. Glitz Builders (2015 (5) TMI 384 - ITAT DELHI ). We concur with the finding of the co-ordinate Bench that when the cost of the land as well as additional payment has not been claimed by the assessee as deduction, then the question of any disallowance under Section 40A(3) or otherwise in the case of the assessee does not arise. We, therefore, delete the entire disallowance made by the Assessing Officer under Section 40A(3) as well as additional payment. Respectfully following the precedent as aforesaid we allow grounds of the assessee for Assessment Year 2006-07 and dismiss the ground of revenue.
Addition on account of Interest on PDCs paid out of books of account - Held that:- The PDCs’ have been encashed within a period of six months as is apparent from page 11 of assessment order where A.O. has noted the date of sale of properties and date of encashment of cheques. Therefore, we find that the facts in the present case are similar in one of the Sister concern i.e. case of M/s IAG Promoters and Development Pvt. Ltd [2014 (12) TMI 216 - ITAT DELHI] therefore, following the Tribunal order in the case of group company, we dismiss this appeal of Revenue.
Disallowance an additional payments u/s 37 - main contention of the ld AR is that having not claimed the expenditure, the same cannot be disallowed - Held that:- When the additional payment has not been claimed by the assessee as deduction, then the question of any disallowance. See M/s. Glitz Builders (2015 (5) TMI 384 - ITAT DELHI )
Addition made on account of interest on PDC - Held that:- The ground of revenue is factually incorrect and it was only a direction of ld CIT(A) to AO to re-calculate the interest on PDC’s on the basis of material seized during search and as per the direction the AO has found that there was no interest payable since the PDC were encashed before six months and we have already dismissed the appeal of the revenue on identical ground in earlier years, so on identical reason following the order of the Tribunal in M/s, IAG Promoters, we are inclined to dismiss this ground of the revenue.
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2015 (4) TMI 1215
Bail application - smuggling - Charas and Ganja - case of appellant is that since the owner of the goods appellant No. 1 Lavekesh Singh has already been released on bail, therefore, the case of the appellant No. 2 is also at par with the appellant No. 1 and he is also entitled to be released on bail - Held that: - no railway officer has been arrayed as accused in the present proceedings, who were present at the time of loading of Leased Wagon at Muzaffarpur Railway Station and in whose presence the goods were loaded and the wagon was sealed. This creates a doubt as to whether the appellant No. 2 kept the narcotics drugs and substances in the wagon along with other articles or someone else loaded the same in connivance with the railway authorities - There is also no evidence to the effect that the appellant No. 2 had any previous criminal antecedent, so as to create an apprehension that he will again indulge into similar offences - the appellant No. 2 Pawan Kumar has made out a case for bail - bail application allowed - decided in favor of applicant.
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2015 (4) TMI 1214
Confiscation - timber of Nepal origin - seizure - Section 110 of the Customs Act - Held that: - Customs Act has been enacted not only for collecting duty from importer of goods but also for other purposes, which is enumerated under sub-section (2) of Section 11 of the Act and to achieve such objective, purpose, seizure of timber imported into India without obtaining Import-Export Code, Plant Quarantine certificate and certificate of origin from Chamber of Commerce, Nepal to confirm its country of origin for necessary verification, to prevent illegal import of goods in the country was made under impugned seizure. Further the truck loaded with the timber did not pass through the authorized route found parked without document indicated above as such officer who seized the timber had reason to believe that its seizure was necessary to initiate proceeding under Section 110 of the Customs Act, 1962 - appeal allowed - decided in favor of appellant.
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2015 (4) TMI 1213
Admission of appeal on following substantial questions of law:
(i) Whether on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal erred in allowing assessee's claim of deduction under section 80IB(10) when assessee had not completed the project by 31st March, 2008 thus violating the provisions of sub section (i) of clause
(a) to section 80IB(10) of the Act?
(ii) Whether on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal erred in allowing the assessee's claim of deduction under section 80IB(10) of ₹ 3,39,22,395/for the assessment year 2004-05
when the assessee had not commenced by 31st March, 2008 the construction of 2 out of 6 buildings comprised in the housing project in respect of which approval had been sanctioned by the local authority on 12th December, 2001?”
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2015 (4) TMI 1212
Scheme of Amalgamation and Arrangement - seeking dispensation of meetings of Shareholders and Secured Creditors of Transferor/Petitioner Company and holding of meeting of Un-Secured Creditors of the said Company - Held that:- This Court is of the view that for the reasons stated above, the meetings of the Equity Shareholders of the Transferor and Transferee Companies and Unsecured Creditors of the Transferee Company are ordered to be dispensed with. Since there is no Secured Creditor of the Transferor and Transferee Companies, no meeting is required. As no consent of the Unsecured Creditors of the Transferor Company is appended, I deem it appropriate to hold/convene their meeting as per the decided Schedule
The meeting shall be conducted in accordance with law and after due notice to all concerned including public in the newspapers namely Indian Express(English) and Jansatta (Hindi) both Haryana Edition and in the official Gazette of Government of Haryana.
Notice of the meeting shall be published at least 21 days before the date of the proposed meeting. Individual notice be also sent to the Unsecured Creditors of Petitioner-Transferor Company by speed post/registered post.
The scheme put up in the meeting of the Unsecured Creditors shall be approved/decided by minimum 75% in value of the Unsecured Creditors present and voting either in person or through proxy.
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2015 (4) TMI 1211
Scheme of Amalgamation and Arrangement - seeking dispensation of meetings of Shareholders and Secured Creditors of Transferor/Petitioner Company and holding of meeting of Un-Secured Creditors of the said Company - Held that:- This Court is of the view that for the reasons stated and in view of the consents given by the Equity Shareholders, the meeting of the Equity Shareholders of the Petitioner/Transferor Company is hereby dispensed with. Since there are no Secured Creditors of the Petitioner/Transferor Company. Thus, there is no need to hold or convene meeting . However, the meeting of Un- Secured Creditors of the Petitioner/Transferor Company, shall be held as per the decided Schedule.
The meeting shall be conducted in accordance with law and after due notice to all concerned including public in the newspapers namely “Indian Express” (English) and “Jansatta” (Hindi) both Delhi/NCR Edition and in the Official Gazette of Government of Haryana.
Notice of the meeting shall be published at least 21 days before the date of the proposed meeting. Individual notice be also sent to the Unsecured Creditors of the petitioner-Transferor Company by registered/speed post.
The scheme be put up in the meeting of the Unsecured Creditors, shall be approved/decided by minimum 75% in value of the Unsecured Creditors present and voting either in person or through proxy.
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2015 (4) TMI 1210
Proceedings under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 - provisional attachment orders - Held that:- Admittedly, the petitioner was never an accused in the CBI case nor any finger was pointed at the petitioner in the charge sheet filed by CBI. Perusal of the facts including the statement of witnesses under Section 164 Cr.P.C. makes it clear that the petitioner has been falsely implicated in the case.
The Court cannot overlook the facts that the properties of the petitioner were purchased in the year 2007 and duly reflected in the income tax returns.
After perusal of the statement of witnesses under Section 164 Cr.P.C. the Court cannot act like a mute spectator to the illegal acts of the agency. Admittedly, the respondent, Enforcement Directorate has no other legally admissible evidence against the petitioner. After carefully examining all the facts and records of the case including statements under Section 164 Cr.P.C. of the witnesses relied upon by the respondent and the closure report filed by CBI before the Special Judge, CBI, Dehradun which was accepted vide order dated 21.08.2014 as well as the order of the High Court of Uttrakhand dated 13.10.2014 quashing the entire proceedings qua the accused, Mr. Arun Kumar Mishra in the said case and in the light of Crl. M.C. No.5581/2014 Page 13 of 13 the retrospective aspect this Court finds no merit in the allegation of the respondent.
Consequently, the provisional attachment of properties of the petitioner vide provisional attachment order No.01/2012 dated 25.10.2012 and vide provisional attachment order No.02/2013 dated 30.08.2013 does not hold good and the respondent is directed to release the properties and give the possession back to the petitioner.
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2015 (4) TMI 1209
Application for settlement of Samadhan Scheme - rejection on the ground that the petitioner had only remitted ₹ 5,33,369/- and ₹ 2,34,513/- along with Samadhan scheme application, which are below 90% of the tax payable under the scheme together with interest - Held that: - The reason given by the respondent while rejecting the applications filed by the petitioner, in my opinion, is not sustainable. It is not in dispute that by order dated 16.2.2010, the Appellate Deputy Commissioner has partly allowed the appeals filed by the petitioner as against the original assessment order, dated 30.10.2009. It is needless to mention that once the superior authority (Appellate Deputy Commissioner) passes an order, such order is binding on the lower authority (Assessing Officer) who function under the jurisdiction of such superior authority and the order of the Tribunal is binding upon the Appellate Deputy Commissioner and the Assessing Officer who function under the jurisdiction of the Tribunal.
It is worthwhile to refer the decision of the Hon'ble Supreme Court, in Union of India v. Kamlakshi Finance Corpn. Ltd., [1991 (9) TMI 72 - SUPREME COURT OF INDIA] wherein, it has been held that the mere fact that the order of the appellate authority is not acceptable to the department in itself an objectionable phrase and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court.
It is not in dispute that as against the orders of the Appellate Deputy Commissioner, both the petitioner and the Government have preferred their appeals and since they are pending, as rightly contended by the respondents, the said appeals cannot be construed as withdrawn, however, for this reason, it is not justified to contend that since the appeals are pending before the Tribunal and the said proceedings have not reached a finality, the demand as per the original order has to be taken as the basic demand for consideration for the applications under Samadhan Scheme.
The first respondent is directed to entertain the applications filed by the petitioner under Samadhan Scheme and pass necessary orders in accordance with law - petition allowed.
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2015 (4) TMI 1208
Settlement of the Mediation Cell - Held that:- Once the matters are settled before the mediation centre, the trial court would have insisting the respondent No.2 to pay the amount secondly, the decision of Dashrath Rupsingh Rathod referred by the trial court does not help the case of respondent No.2 as the proceedings have gone to stage of Section 145(2) of the Act. The notice of the abovementioned petitions were issued but despite of service, no one appeared on behalf of respondent No.2.
Hence the order dated 16th February, 2015 passed by the Metropolitan Magistrate, Rohini District Courts, Delhi in the Criminal Complaint bearing No.399/1/12 titled as “M/s Arun International Vs. M/s. Shree Shyam Enterprises & Ors.” is quashed qua the petitioner. The Metropolitan Magistrate is directed to pass the appropriate judgment in accordance with the circumstances in the matter against the respondent No.2 without any further delay on the basis of the statement made in mediation and to the court. The present petitions are accordingly allowed.
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2015 (4) TMI 1207
Scheme of Amalgamation - dispensing with the meetings of Equity Shareholders and Unsecured Creditors of the applicant-company - Held that:- Having heard Mr. Pahwa, learned Advocate for the applicant and considering the fact that all the Equity Shareholders and Unsecured Creditor of the applicant company have given their consents in writing as required u/s 391(2) of the Act to the proposed Scheme of Amalgamation, the meetings of the Equity Shareholders and Unsecured Creditor of the applicant company are ordered to be dispensed with.
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2015 (4) TMI 1206
Scheme of Amalgamation - dispensing with the meeting of Equity Shareholders - Held that:- Having heard Mr. Pahwa, learned Advocate for the applicant and considering the fact that all the Equity Shareholders of the applicant company have given their consents in writing as required u/s 391(2) of the Act to the proposed Scheme of Amalgamation, the meeting of the Equity Shareholders of the applicant company is ordered to be dispensed with. It is further ordered that this being transferee-company, meeting of the creditors is not required to be held.
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2015 (4) TMI 1205
Registration U/s 12AA rejected - treating the application for registration u/s 12AA as time-barred - Held that:- Where application is made after first day of June 2007 then the benefit of sections 11 & 12 is available only with reference to the assessment year immediately following the financial year in which such application is made. This means that the benefit of sections 11 & 12 is not available to the earlier years for which the application is made. Therefore, in view of the above clear legal position and also concession made by Ld. Counsel for the assessee, the additional ground raised by the assessee is dismissed.
As far as the other grounds are concerned, we find that it is settled law that at the time of registration, the concerned authority is required to examine only the aims and objects of a particular institution and if the same are found to be of charitable nature, the registration should be granted. The other issue like non audit of accounts, non application of 85% of the funds for charitable purposes etc. can be examined only at the time of assessment when exemption is being granted u/s 11 & 12 of the Act. In the case before us, the Ld. Commissioner has not recorded any findings, how the objects of the assessee are not charitable. He has considered various other issues like non audit of accounts, the non application of 85% of the funds for charitable activities etc. which are not relevant for grant of registration, therefore, in the interest of justice, we set aside the order of Ld. Commissioner and remit the matter back to the file of Ld. Commissioner for reexamination of the issue and decide the same in accordance with law.
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2015 (4) TMI 1204
Expenses claimed as compensation of rock phosphate, Mineral Extraction expenses, Contribution to State Renewal Fund, Prior period expenses, Social Welfare activities expenditure - allowable revenue expenditure - Held that:- We see no infirmity in the order of the ld CIT(A) as the partial disallowance has been retained by following the ITAT order in assessee’s own case. Consequently, the same is upheld. The C.O. of the assessee is dismissed.
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