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Case Laws
Showing 141 to 160 of 2006 Records
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2018 (4) TMI 1870
Addition u/s 40A(2)(b) - interest paid to directors in excess of interest paid to other parties - AO noticed that the assessee inter alia paid interest to directors of the company at higher rate of 18% p.a. whereas the assessee has also paid interest on borrowed funds at lower rate of 11% - 13% to other parties - as per AO nearly 5% has been paid to the directors in excess of fair market value of lending rate and consequently quantified the disallowance of excess interest with the aid of section 40A(2)(b) - CIT-A confirmed case of the assessee for non-applicability of section 40A(2)(b) - HELD THAT:- We find substance at the first instance on the plea paddled on behalf of the assessee that interest rate @ 18% cannot be seen as excessive or unreasonable having regard to the fact that the assessee has incurred interest costs at the similar rate on borrowed funds from uncontrolled parties. This fact itself proves the case of the assessee in affirmative. The revenue has not been able to counter this aspect of justification for making payment of interest alleged at higher rate qua other lenders. Therefore, we do not consider it necessary to look into the other plea of the assessee on requirement of determination of market rate of interest independently. In view of the aforesaid discussion, we do not find any infirmity in the order of the CIT(A) in drawing conclusion in favour of the assessee.
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2018 (4) TMI 1869
Admissibility of expenditures incurred by the assessee (a pharmaceutical company)u/s 37 - Disallowance on account of marketing expenses - AO noticed that the marketing expenses included gift to the Doctors which was in violation to the provisions of Indian Medical Council (Professional conduct Etiquettes and Ethics) Regulations 2002 issued by M.C.I. and circular No. 5/2012 dated 12.8.2012 issued by CBDT - HELD THAT:- Since the facts of the assessee’s case are similar to the facts involved in the aforesaid referred case of DCIT vs. PHL Pharma Private Limited [2017 (1) TMI 771 - ITAT MUMBAI] there is no violation by the assessee in so far as giving any kind of freebies to the medical practitioners. Thus, such kind of expenditures by a pharmaceutical companies are purely for business purpose which has to be allowed as business expenditure and is not impaired by EXPLANATION 1 to section 37(1). - Decided in favour of assessee
So respectfully following the said order, the impugned disallowance made by the AO and sustained by the learned CIT(A) is deleted. - Decided in favour of assessee.
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2018 (4) TMI 1868
Winding up of company - appointment of Official Liquidator - appointment is rejected on the ground that the petition for appointment of Provisional Liquidator can be entertained and an order thereon can be passed only after the admission of the Company Petition, but not along with the admission - rejection also on the ground that neither any notice was issued nor any reasons, for dispensing with such notice or for appointing the Provisional Liquidator, have been assigned - HELD THAT:- Sub-section (2) of Section 450 of the Act ordains that the Court shall not only give the Company a notice but also a reasonable opportunity to it to make its representations against the appointment of the Provisional Liquidator before such appointment is made. In our opinion, sub-section (2) of Section 450 of the Act is incorporated with the avowed object of allowing the Company to make, its representations before appointing a provisional liquidator, for, appointment of the Provisional Liquidator is drastic in nature like appointment of a receiver in respect of the property in a civil dispute. As rightly argued by the learned Senior Counsel, only for special reasons to be recorded in writing, issue of such notice can be dispensed with. Admittedly, no such reasons have been assigned for dispensing with such notice to the appellant.
The order of the learned Company Judge to the extent of appointing the Provisional Liquidator cannot be sustained and the same is, accordingly, set aside while confirming the order under Appeal to the extent of admission of the Company Petition - Appeal allowed in part.
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2018 (4) TMI 1867
TP Adjustment - most appropriate method while computing the arm’s length price of the international transactions - HELD THAT:- We are in agreement with the ld. DRP and the ld. AR to hold that in this situation segregation of accounts solely basing on the income but without reference to either gross profit or sales is most unreliable and the adoption of TNMM method at entity level is safe and plausible method. Unless and until there are compelling reasons to disturb this functional integrity of the assessee, merely because it is possible to have two segments theoretically separate, it is not safe to bifurcate the financials arbitrarily.
The contention of the assessee that the excess profits earned in commission segment have to be given set off while determining the adjustment for trading segment cannot be brushed aside. Perhaps keeping all this in view, ld. DRP found that in the backdrop of similarity of the international transactions to be bench marked and the business model of the assessee over the past few years, in the absence of any compelling reasons, the consistently applied TNMM should not have been rejected and CUP method should not have been applied to bench mark the commission income separately. We do not find any reason to disagree with the ld. DRP in view of the fact that the view taken by the ld. DRP is also one of the plausible views amongst the several options put forth before them by the assessee which are reflected in the order of the ld. DRP. We, therefore, uphold the finding of the ld. DRP and find ground No.1 devoid of merits.
Adjustment on account of working capital while working out the average margins of the comparables - HELD THAT:- As direction given by Ld. DRP to the Ld. AO/LD. TPO to give working capital adjustment while working out the average margins of the parables. It could be seen from the impugned order, Ld. DRP opined that in view of rule 10 B (3), to improve the compatibility in the facts of the case by comparing margins of the tested party with the incomparable, adjustment should be made for the working capital for which the reliable data has to be provided by the taxpayer. While directing the taxpayer to provide the necessary Data/details with computation of the working capital of the tested party and comparables, Ld. DRP directed the Ld. TPO to give the working capital adjustment. For this purpose Ld. DRP took strength from the decisions in the cases of Mentor graphics. [2007 (11) TMI 339 - ITAT DELHI-H], Sony India [2006 (10) TMI 88 - DELHI HIGH COURT] and Philips software [2008 (9) TMI 466 - ITAT BANGALORE-B].
In view of the impact of the trade receivables, trade payables and inventory on the interest cost and depending upon the interest cost the margins change their volumes; we do not find any illegality or irregularity in the directions given by the Ld. DRP in respect of the working capital adjustment. We see no reason to interfere with such a direction. This ground of appeal is, accordingly, dismissed.
Charging the interest on then receivables from the AE’s - determination of interest on receivables outstanding with the AEs and to compute the interest forgone and outstanding and give benefit of the same and bring to tax only the net interest income - HELD THAT:- DRP drew support from safe Harbor Rules which came into force in September, 2013 stating that though they are not applicable in the year under consideration, but the principle is justifiably applicable in the case of the taxpayer for the international transaction to be benchmarked. In the circumstances Ld. DRP directed the ld. TPO to verify the amounts of receivables, stating that in case the aggregate amount of receivables from the AEs does not exceed the ₹ 50 crores, to apply SBI base rate as on 30th of June of relevant the previous year +150 basis points, and in case the aggregate amount of receivables from the AEs exceed ₹ 50 crores, apply SBI base rate as on 30th of June of relevant previous year +300 basis points.
It is not demonstrated before us as to how this direction in the given situation is bad either on facts or under law. The reasoning followed by the Ld. DRP is neither illegal nor irregular and it does not warrant any interference at our end. In the absence of any compelling reasons, we do not find it just or proper to interfere with such direction of the Ld. DRP. We therefore uphold the same and dismiss this ground of appeal.
Disallowance of travelling expenses stating it to be prior period expense - HELD THAT:- On this aspect, after having gone through the assessee submission and order of the LD. AO, as a matter of fact Ld. DRP found that the company received a contract for which it was required to render services till April, 2009, the invoicing for which was done in April, 2009 and the revenue was recognized in the FY 2009-10. It is further observed that the company incurred travelling expenses for this project from December, 2008 to April, 2009 whereas income from this project was not recognized in the books during the FY 2008-09 and the corresponding travel expenses FY 2008-09. However, subsequently in the FY 2009-10, the income from the project was recognized and the corresponding travelling expenses were charged in the books of accounts. In the instant case, the expenditure in regard to travelling expenses has accrued and arisen during the year and accordingly the same is allowable as direction while computing the profits for the FY 2009-10. The assessing officer is, therefore, directed to delete the addition. We find no reason to interfere with the same. We, therefore, uphold the same and dismiss the ground No. 4 of revenue’s appeal.
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2018 (4) TMI 1866
Addition u/s 68 - unexplained cash deposits - HELD THAT:- A credit in the 'bank account' of an assessee cannot be construed as a credit in the ‘books’ of the assessee, for the very reason that the bank account cannot be held to be the 'books' of the assessee. Though, it remains as a matter of fact that the 'bank account' of an assessee is the account of the assessee with the bank, or in other words the account of the assessee in the books of the bank, but the same in no way can be held to be the ‘books’ of the assessee. A thoughtful consideration to the scope and gamut of the aforesaid statutory provision, viz. Sec. 68, and are of the considered view that an addition made in respect of a cash deposit in the 'bank account' of an assessee, in the absence of the same found credited in the 'books’ of the assessee maintained for the previous year, cannot be brought to tax by invoking the provisions of Section 68.
As stands gathered from the records, the addition made by the A.O is in respect of the cash deposits in the bank accounts of the assessee, and not in any ‘books’ of the assessee for the year under consideration. In the backdrop of the aforesaid settled position of law, the addition made by the A.O in respect of the cash deposits of ₹ 8,51,400/- in the bank accounts of the assessee by invoking Section 68 has to fail, for the very reason that as per the judgment in the case of of CIT Vs. Bhaichand N. Gandhi [1982 (2) TMI 28 - BOMBAY HIGH COURT] a bank pass book or bank statement cannot be considered to be a 'book' maintained by the assessee for any previous year for the purpose of Section 68 of the Act. Therefore, on this count itself the impugned addition deserves to be deleted.
As quashed the addition on the ground that no such addition could have been validly made u/s 68 of the Act, therefore, we refrain from adverting to the grounds wherein the assessee had assailed on merits the additions sustained by the CIT(A).
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2018 (4) TMI 1865
Permission to engage four qualified company secretaries for appointment of Company secretaries and Trainee Company secretaries as approved by this Hon’ble Court for a period of one year which can be further extended up to three years - HELD THAT:- Considering the fact that fees/salary/remuneration for the Company secretaries were fixed before nine years, the recommendations of the Selection Committee to increase the fees/salary/remuneration of the Company secretaries as well as the Trainee Company secretaries could be accepted and therefore, the Official Liquidator is permitted to increase and pay the fees/salary/remuneration for the Company secretaries at ₹ 25,000/per month and ₹ 10,000/per month for Trainee Company secretaries. The Official Liquidator is permitted to make such payment of fees/salary/remuneration from the fund available with the office of Official Liquidator under the head of ‘Company paid staff salary reserve fund’.
Report disposed off.
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2018 (4) TMI 1864
Revision u/s 263 by CIT - Revenue for not examining the issue of deduction u/s 35 (2AB) - HELD THAT:- As the assessee categorically stated before the ld.CIT that: “the ld. A.O. during the course of assessment proceedings u/s 143(3) did not call for any detail nor raised any query in regard to claim u/s 35(2AB).”
AR submitted that this information was erroneously given to the ld. CIT inasmuch as the Assessing Officer did make enquiry as was evident from his order sheet entry dated 03.02.2014 by which certain enquiry was conducted qua deduction u/s 35(2AB) - Without going into the authenticity of the claim of deduction, we find that the ld. CIT set aside the assessment order primarily on the assessee’s submission that the Assessing Officer did not call for any detail nor raised any query. Since this position does not prima facie appear to be correct, we set aside the impugned order and remit the matter to the file of CIT for deciding it afresh as per law, after allowing a reasonable opportunity of being heard to the assessee. Assessee Appeal is allowed for statistical purposes
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2018 (4) TMI 1863
Ex-parte appeal - Non prosecution of appeal by assessee - non removal of defects - HELD THAT:- This appeal was fixed for hearing on 12.04.2018 and notice of hearing was sent to assessee’s address provided by assessee in form no. 36 and hence, the service of notice is presumed. In spite of this, none appeared on behalf of the assessee on the appointed date of hearing i.e. 12.04.2018 and therefore, the appeal of the assessee was heard ex-parte qua the assessee. This is also noted that along with the notice for hearing, defect memo was also issued to the assessee as per which it was pointed out that there are several defects being
a. Appeal fee not filed in minor head 300
b. Assessment order is not legible
c. Form 35 not filed in duplicate
The assessee has not removed these defects also. Under these facts, hold that the appeal of the assessee is not maintainable and by respectfully following the Tribunal order rendered in the case of CIT Vs. Multiplan India Ltd [1991 (5) TMI 120 - ITAT DELHI-D] the appeal of the assessee is dismissed.
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2018 (4) TMI 1862
Settlement of petitioner's surrender leave salary for 84.5 days - HELD THAT:- It is not in dispute that there was 12(3) settlement between the parties. According to such settlement, employees would be entitled to surrender earned leave of 15 days in one year or 30 days in two years and the remaining 15 days or 30 days, as the case may be, shall be cumulatively accumulated as terminal earned leave benefit to the maximum of 240 days for the whole service.
During petitioner's service, between 2011 and 2014, though he could have surrendered the earned leave of 15 days in a year as per 12(3) settlement, the same was not made possible because the practice was done away by the respondent Corporation, as they have admitted in the answer given to the query under RTI Act - If the present circular dated 09.01.2017 enabling the employees to surrender earned leave of 15 days per year for the original period between 2011 and 2014, certainly, such benefits should be extended to all such employees. Insofar as the present petitioner is concerned, the petitioner also could not surrender his earned leave between 2011 and 2014 and therefore, the petitioner would be entitled to make such a claim by virtue of the Circular.
This Court is of the considered view that the petitioner shall also be eligible and entitled to surrender 15 days earned leave from the years 2011-2014, where the petitioner was in service and if such surrender is made, certainly, he will be entitled to claim the encashment for the said earned leave surrender - this Court has no hesitation to hold that the impugned order passed by the respondent Corporation rejecting the said claim made by the petitioner for encashment of earned leave benefit between 2011 -2014 is unsustainable
The petitioner shall be entitled to claim the leave salary surrender encashment benefit depending upon his eligibility for the relevant years and since the petitioner has already made such a request on 24.03.2018, the same shall be accepted and the amount equivalent to surrender of earned leave shall be disbursed to the petitioner within a period of eight weeks from the date of receipt of a copy of this order - Petition allowed.
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2018 (4) TMI 1861
Admission of fresh evidence in First Appellate proceedings without compliance of Rule 46A(1) & (2) of the Income Tax Rules - HELD THAT:- CIT (Appeals) admitted additional evidence without giving chance to AO to rebut or cross-examine the fresh material filed as additional evidence. It is a settled position that additional evidence cannot be admitted as matter of right, unless the opposite side is allowed opportunity to controvert.
In the present case the additional evidence furnished by assessee were referred to TPO/Assessing Officer for examination and comments. The TPO after examining the documents agreed that manufacturing activity is being carried out by the assessee. Thus, there is due compliance of principles of natural justice. Each case has to be decided on its own facts. The general principle reiterated by the Hon’ble High Courts in the cases referred above is that no person should be condemned without giving opportunity of hearing.
No infirmity in the impugned order, accordingly, the same is upheld and the appeals of the Revenue for assessment years 2008-09 and 2009-10 are dismissed.
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2018 (4) TMI 1860
Eligibility for exemption claimed u/s 10(21) - CIT- A allowed deduction as relying on assessee's own case - HELD THAT:- CIT(Appeals) has followed the order of this Tribunal in the assessee's own case for the assessment year 1997-98 in which this Tribunal found that the assessee is eligible for exemption under Section 10(21) of the Act. This order of the Tribunal for the assessment year 1997-98 was subsequently followed by this Tribunal in the assessee's own case for assessment years 1998-99 and 2000-01.
Even though an appeal was said to be filed before the High Court, the Ld.counsel submitted that the appeal was not numbered till date by the High Court and it was returned for rectification of certain errors - this Tribunal is of the considered opinion that when the co-ordinate Bench of this Tribunal for assessment years 1997-98, 1998-99 and 2000-01 found that the assessee is eligible for exemption under Section 10(21) of the Act, this Tribunal do not find any reason to interfere with the order of the lower authority - Decided in favour of assessee.
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2018 (4) TMI 1859
Premature termination of lease deed - it is alleged that the lease area of the petitioner falls within the protected forest as per notification No. C/P.F.-10166/52-19R dated 2.1.1953 - petitioner has primarily challenged the action of the respondents including the impugned letter/order contained in memo No. 734 dated 27.4.2016 on the ground of non-observance of principles of natural justice - specific case of the petitioner is that purported decision taken by the respondent No. 2 vide order dated 26.4.2016 for termination of its mining lease has not been communicated to it.
HELD THAT:- On perusal of the impugned letter dated 27.4.2016, it appears that the respondent No. 4 while referring the order passed by the respondent No. 2 informed inter alia that the mining lease of the petitioner has been cancelled with immediate effect. The specific case of the petitioner is that purported decision taken by the respondent No. 2 vide order dated 26.4.2016 for termination of its mining lease has not been communicated to it. In response to the said averment made in paragraph-16 of the writ petition, it has been stated in paragraph 20 of the second counter affidavit dated 11.11.2016 filed on behalf of the respondents that after cancellation of the lease in question, the respondent No. 4 communicated the same through letter contained in memo No. 734 dated 27.4.2016. The said statement cannot be read as if a copy of the order passed by the respondent No. 2 dated 26.4.2016 was in fact communicated to the petitioner. Even the impugned letter dated 27.4.2016 issued by the respondent No. 4 does not disclose any consideration of the reply submitted by the petitioner in response to the notice dated 12.1.2016 issued by the said respondent - It is well settled that if any decision is taken by any administration/quasi-judicial authority against a person adversely affecting his/her rights, the observance of principles of natural justice is not mere a formality. The objection/reply submitted by the person concerned in pursuance of the notice issued by the authorities is to be properly considered/appreciated so as to reach a logical conclusion in the decision making process.
The impugned letter dated 27.4.2016 only discloses that since the leased land, falls under the notified forest, the mining lease of the petitioner has been ordered to be cancelled by the respondent No. 2 vide order dated 26.4.2016. The reply of the petitioner submitted pursuant to the notice dated 12.1.2016 (Annexure-4/1. to the writ petition) discloses that the petitioner elaborately contested against the applicability of the notification dated 2.1.1953 issued under Section 29 of the Indian Forest Act, 1927 over the leased land in addition to taking other factual plea. The Non-consideration of the reply submitted by the petitioner before the respondent authorities is violative of" well settled principles of natural justice.
The respondent No. 2 is directed to pass a fresh speaking and reasoned order in this regard after affording due opportunity of hearing to the representative of the petitioner, preferably within a period of 12 (twelve) weeks from the date of receipt/production of a copy of this order - Petition disposed off.
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2018 (4) TMI 1858
Disallowance on account of the difference between purchase price of the Stock Appreciation Rights (SAR) and the sale price of such shares at the time of the exercise by the employees - HELD THAT:- The Scheme is analogous to the Employee stock appreciation rights scheme 2007 and is covered in the favour of the assessee by the ruling of this Court in the case of ‘Commissioner of Income Tax vs. New Delhi Television Limited’ [2017 (9) TMI 118 - DELHI HIGH COURT] which had in turn relied on a previous judgment of Madras High Court in the case of ‘Commissioner of Income Tax-III, Chennai vs. M/s PVP Ventures Limited, T. Nagar, Chennai [2012 (7) TMI 696 - MADRAS HIGH COURT]. Consequently, no question of law arises on this aspect.
Disallowance u/s 14-A - HELD THAT:- ITAT here ruled that since no exempt income was earned during the year, disallowance was impermissible, relying upon the judgment of this Court in the case of ‘Cheminvest Ltd. Vs CIT-VI’, [2015 (9) TMI 238 - DELHI HIGH COURT]. For this reason, this question of law too does not arise.
Disallowance under Section 40 (a) (ia) - Revenue authorities, including the CIT (A), disallowed certain amounts contending that the failure to deduct tax at source from the amount paid to other entities authorized the disallowance - HELD THAT:- ITAT noted that the amounts were paid by way of reimbursement and that there was no finding to the effect that the reimbursement contained any income element. On account of these findings the court is of the opinion that no question of law arises on this aspect.
Admit:
“Did the ITAT fall into error in permitting the assessee expenditure claimed by it for the period April-2007 to June-2007 (₹ 93,89,552/-) having regard to the circumstance that it commences business from July-2007?”
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2018 (4) TMI 1857
Deduction u/s 80IB - Whether condition specified u/s 80IB(10) of I T Act that the built-up area of each flat should be less than 1500 Sqft. to claim the deduction u/s 80IB of the I T Act? - CIT-A allowed deduction - whether CIT(Appeals) while adjudicating the issue has followed the order of the Tribunal in which identical issue has been adjudicated following the judgment of CIT v. SJR Builders [2012 (3) TMI 615 - KARNATAKA HIGH COURT] - HELD THAT:- On the issue of proportional allowability deduction u/s 80IB(10) being in favour of the appellant, it is clear that, the deduction cannot be denied in its entirety. The Assessee on the other hand has submitted that its claim u/s 80IB, during the year under consideration, was restricted only to the units falling below the threshold of 1500 sqft. The AO has not disputed this position of the Assessee. In the facts and circumstances of the case the Assessee's appeal is allowed.
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2018 (4) TMI 1856
Levy of penalty under Section 129(3) of the UPGST Act, 2017 - seizure and detention of goods - HELD THAT:- On deposit of tax imposed by the respondent- Mobile Squad Unit, the goods were released. However, the penalty proceeding continued and the penalty order has been passed and the authority has directed to deposit a sum of ₹ 8,14,260/- equivalent to the tax. This penalty order dated 7th February, 2018 has been challenged by means of an appeal before the Additional Commissioner, under Section 107 of the Act. The appeal has been dismissed. Till date, the tribunal has not been constituted, hence the petitioner has no way but to challenge the impugned penalty order by means of present writ petition.
Learned Special Counsel appearing for the State and learned counsel appearing for the respondent nos.1 and 6 may file counter affidavit within a month. Rejoinder affidavit, if any, may be filed within ten days thereafter - List immediately after expiry of the aforesaid period.
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2018 (4) TMI 1855
Lodging of FIR - whether the death of Judge Loya was due to natural causes, or as alleged by the Petitioners (relying on the contents of news items or material which has come before the Court), there are circumstances which raise a reasonable suspicion about an unnatural death, warranting an inquiry or investigation on the directions of this Court? - should the contents of a news Article by itself be made the basis to lodge an FIR Under Section 154 of the Code of Criminal Procedure 1973?
HELD THAT:- The point of the matter is that facts have emerged from the record which indicate that a carefully orchestrated attempt has been made during the course of these hearings on behalf of the Centre for Public Interest Litigation to create evidence to cast a doubt on the circumstances leading to the death of Judge Loya. In their practice before this Court, Counsel are expected to assist the court with a sense of objectivity in aid of justice. What has happened here is that Mr. Prashant Bhushan has adopted a dual mantle, assuming the character of a counsel for the intervenor as well as an individual personally interested on behalf of the intervening organisation of which he is a member. He has gone to the length of personally collecting evidence to somehow bolster the case. The manner in which the opinion of Dr Kaul was obtained on the basis of a laconic questionnaire leaves much to be desired and is a singular reflection on the lack of objectivity which is to be expected from counsel appearing before this Court. This has bordered on an attempt to misrepresent the facts and mislead the court.
The insinuation is against the judges of the Bombay High Court at Nagpur for having quashed a criminal case in which the present Chief Minister was involved. We are not called upon to evaluate the merits of the decision, save and except to note that the High Court in quashing the proceedings placed reliance on a decision of this Court and had noted that the dispute was admittedly private in nature where no element of public law was involved. The attempt of the Petitioners is to create prejudice and to malign the dignity of the judges, particularly of Justice BR Gavai. Copies of the criminal application and of the order of the Bombay High Court form part of the same compilation in which is also annexed a copy of the Article published in the Indian Express of 27 November 2017, referring to the statements of Justice Gavai and Justice Shukre. This is another instance in the course of the hearing of the present case where a matter extraneous to the subject of the inquiry before the court has been sought to be relied upon to somehow sensationalise the case. What is worse is the manner in which wholly unfounded aspersions have been cast on the judges of the Bombay High Court following a decision which has been taken in the judicial capacity. This constitutes a serious attempt to scandalise the court and obstruct the course of justice.
The misuse of public interest litigation is a serious matter of concern for the judicial process. Both this Court and the High Courts are flooded with litigation and are burdened by arrears. Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes. This Court has a long list of pending cases where the personal liberty of citizens is involved. Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice. It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. This has spawned an industry of vested interests in litigation - Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. Courts resolve disputes about legal rights and entitlements. Courts protect the Rule of law. There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space.
The present case is indeed a case in point. Repeatedly, counsel for the Petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence. An aura of good faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary. But as the submissions have evolved, it has become clear that the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions. Judicial review is a potent weapon to preserve the Rule of law. However, here we have been confronted with a spate of scurrilous allegations. Absent any title of proof that they are conspirators in a murder the court must stand by the statements of the judicial officers. The judges of the district judiciary are vulnerable to wanton attacks on their independence. This Court would be failing in its duty if it were not to stand by them.
There is absolutely no merit in the writ petitions. There is no reason for the court to doubt the clear and consistent statements of the four judicial officers. The documentary material on the record indicates that the death of Judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry - Petition dismissed.
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2018 (4) TMI 1854
Disallowance u/s 80P(2)(d) - interest earned by the assessee society from cooperative banks - HELD THAT:- On identical issue in the case of Income Tax Officer vs M/s Presidency Co-operative Housing Society Ltd. [2018 (3) TMI 309 - ITAT MUMBAI],LANDS END CO-OPERATIVE HOUSING SOCIETY LTD [2016 (2) TMI 620 - ITAT MUMBAI] AND DARBHANGA MANSION CHS LTD. [2014 (12) TMI 1112 - BOMBAY HIGH COURT] decided identical issue in favour of the assessee by holding that the deduction in respect of income cooperative society by way of interest from its investment with other co-operative society, the assessee is entitle to deduction in respect of interest received/derived by it on deposit with cooperative bank - Also see M/S. THE TOTGARS´ COOPERATIVE SALE SOCIETY LIMITED [2010 (2) TMI 3 - SUPREME COURT] - Decided in favour of assessee.
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2018 (4) TMI 1853
Correct head of income - interest income on FDRs for short term duration - income from other sources or capital receipt - HELD THAT:- Respectfully applying the ratio of the judgment of Indian Oil Panipat Power Consortium Ltd. [2009 (2) TMI 32 - DELHI HIGH COURT] we hold that since the business of the assessee had not commenced, the interest received in the period prior to the commencement of business was in the nature of capital receipt and was required to be set off against the preoperative expenses. Therefore, the impugned interest income is a capital receipt not chargeable to tax during the year under consideration. Accordingly, we allow the grounds of appeal raised by the assessee.
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2018 (4) TMI 1852
Eligibility of deduction u/s 80IB - total area of the land on which the project was undertaken is less than the one acre of land - assessee argued that he had set apart certain portion of land for making DP road as per municipality order - HELD THAT:- For getting the sanction for development of housing project on the plot of land, which measured to 4077.21 sq.mtrs. by actual measurements, then the said sanction would be accorded where the assessee gives up area for DP road measuring 218.49 sq.mtrs. The said was the condition for getting permission to develop the housing project at the said place. The learned Authorized Representative for the assessee before us has pointed out that against the said area left for DP road, the assessee was entitled to increased FSI. In other words, the assessee gained from leaving the land for DP road.
The Courts have time and again held that the condition which needs to be fulfilled for claiming the deduction, as per clause (b) is the actual measurement of plot of land on the date of start of development. The assessee had in the present set of facts, purchased the plot of land, which measured slightly more than one acre at 4077.21 sq.mtrs.
Basic condition of fulfillment of having plot area of one acre stands fulfilled by the assessee. The said area had to be set apart only as per the requirements of different rules under the Municipality Act, but the same does not lead to the conclusion that the assessee had less than one acre of plot of land area for its development. The gross total area was more than one acre and hence, the assessee was entitled to claim the deduction under section 80IB(10) of the Act irrespective of the fact that the assessee had set apart certain portion of land for making DP road.
There is no merit in the orders of authorities below in denying the claim of deduction under section 80IB(10) of the Act. Accordingly, the Assessing Officer is directed to allow the deduction under section 80IB(10) of the Act as the assessee had fulfilled the condition of holding plot of land, having area of more than one acre
The finding of CIT(A) that the original plot size itself in the hands of assessee was less than one acre was not correct, in view of actual measurements of land as per triangulation method, what had to be seen as the actual measurement of plot of land and not the plot size mentioned in local language of 40R. The DVO had also referred to same area of 4077.21 sq.mtrs. Reversing the order of CIT(A), claim of assessee of 80IB(10) deduction is allowed. - Decided in favour of assessee.
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2018 (4) TMI 1851
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Whether entering into consent terms over an operational debt for dismissal of earlier company petition will change the nature of the claim that has been made by the petitioner before this Bench or not? - HELD THAT:- It is a fact that this petitioner filed a company petition stating that it has rendered services to the corporate debtor for the construction of multi-purpose berth Nos. 1 and 2 at Dighi, Maharashtra, under the contract dated November 1, 2008. On having the services rendered and the corporate debtor having not paid, when the petitioner's side ready to argue the case, the corporate debtor entered into consent terms with the petitioner on March 29, 2017 agreeing as mentioned before by stating that the petitioner is entitled to file fresh company petition under the IB Code in the event payment has not been made as mentioned in the consent terms and also by saying that the arbitration proceedings pending before the hon'ble High Court would be treated as withdrawn in view of the consent terms arrived between the parties. For these consent terms have been entered into comprehensively dealing not only with the payments in relation to berth Nos. 1 and 2 at Dighi but also in respect to berth No. 3 at Agardanda, Maharashtra, a clause has been inserted that the arbitration application filed by the petitioner in respect to berth No. 3 would be treated as withdrawn by saying that arbitration proceedings stood as withdrawn in view of the consent terms arrived between the parties in respect to berth No. 3 as well.
It is vividly clear that whatever disputes either in relation to the services given by the petitioner or in relation to any of the arbitration proceedings, it has to be understood that the parties arrived into an understanding that whatever disputes were there before entering into consent terms in respect to berth No. 3 would also be merged (doctrine of merger) as part of the consent terms, today the corporate debtor counsel could not say that there is a pre-existing dispute in respect to berth No. 3, therefore, this claim cannot be construed as hit by pre-existing disputes. When the parties arrived to a settlement or consent terms, whatever disputes that were in existence before execution of the consent terms, have to be treated as resolved by the consent terms subsequently arrived at - Merely because consent terms arrived between the parties will never change the nature of the claim, here the claim is the petitioner rendered services to which money was not paid, upon which company petition was filed since the corporate debtor entered into consent terms putting the petitioner under belief that he would pay money to the petitioner as agreed in the consent terms, the petitioner withdrew the company petition believing that the corporate debtor would make payment as agreed in the consent terms.
It can be safely inferred that merely entering into consent terms, operational debt neither will become financial debt nor something else, the nature of the claim is same, it has to be treated as operational debt in view of the same for having the petitioner filed consent terms and the corporate debtor having defaulted in making payment as stated in the consent terms and there being no dispute in respect to the corporate debtor executing consent terms and filing the same before this Bench, there cannot be any argument saying that dispute is in existence in respect to the services provided by the petitioner.
Petition admitted - moratorium declared.
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9911796707
