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Showing 141 to 160 of 1423 Records
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2023 (4) TMI 1284
Disallowance of interest expenses u/s. 14A - CIT(A) in the impugned order has given finding of fact that the assessee has surplus interest free funds in the form of capital and reserves to cover the investment made. Purportedly, no fresh investments were made in the impugned assessment year - HELD THAT:- The assessee had made investments in NABARD tax free bonds in assessment year 1996-97 and 1997-98. Similar disallowance u/s. 14A of the Act was made by the Assessing Officer in assessment year 1998-99 for earning tax free interest income.
The Co-ordinate Bench deleted the disallowance. The Hon’ble Apex Court in the case of South Indian Bank Ltd [2021 (9) TMI 566 - SUPREME COURT] has reiterated the legal position, “that the proportionate disallowance of interest is not warranted u/s.14A of the Income Tax Act for investment made in tax free bonds/ securities which yielded tax free dividend and interest to assessee bank in those situation where, the interest free own funds available with the assessee, exceeded their investment.”
Revenue has not disputed the fund position as highlighted by the CIT(A) in the impugned order. Decided in favour of assessee.
Allocation of interest towards earning of income on foreign exchange loans - AO held that net interest income is taxable at concessional rate of 20% u/s. 115A - HELD THAT:- As decided in assessee own case the legislature has intended to tax the interest only on gross basis. Further in support of his arguments ld. A.R has also cited Article 10& 11 of DTAA with Canada - Notification No.10503(F No.505/2/87-FTD) - Further it has also been mentioned that section 90(2) of IT Act also provides that the provisions of this Act shall apply to the extent they are more beneficial to that assessee. The order of the first appellate authority is quite elaborate on this subject and needs no interference - Decided in favour of assessee.
TDS u/s 195 - Disallowance u/s. 40(a)(ia) - not deducting TDS on interest paid to Head Office - branch office of the assessee in India paid interest to the Head Office/ overseas branches - HELD THAT:- As decided in Sumitomo Mitsui Banking Corporation [2012 (4) TMI 80 - ITAT MUMBAI] there is no express provision contained in the relevant tax treaty which is contrary to the domestic law in India on this issue. This position applicable in the case of interest paid by Indian branch of a foreign bank to its Head Office equally holds good for the payment of interest made by the Indian branch of a foreign bank to its branch offices abroad as the same stands on the same footing as the payment of interest made to the Head Office.
At the time of hearing before us, the learned representatives of both the sides have also not made any separate submissions on this aspect of the matter specifically. Having held that the interest paid by the Indian branch of the assessee Bank to its head office and other branches outside India is not chargeable to tax in India, it follows that the provisions of section 195 would not be attracted and there being no failure to deduct tax at source from the said payment of interest made by the PE, the question of disallowance of the said interest by invoking the provisions of section 40(a)(i) does not arise - Decided in favour of assessee.
Disallowance of Broken Period Interest - assessee has paid broken period interest on securities held as stock in trade on 31/03/2002 - AO disallowed the same - CIT(A) deleted the addition - HELD THAT:- It is no more resintegra that broken period interest is an allowable deduction. The CIT(A) has granted relief to the assessee by placing reliance on the decision of Hon'ble Jurisdictional High Court. There are catena of judgements allowing deduction in respect of broken period interest. The Hon'ble Supreme Court of India has dismissed the SLP of the Department in the case of State Bank of India upholding the order of Hon’ble Karnataka High Court [2020 (9) TMI 493 - KARNATAKA HIGH COURT] allowing broken period interest as deduction. Thus, we find no infirmity in the impugned order on this issue. Ergo, ground No.4 of the appeal is dismissed.
Restricting the claim of bad debts u/s 36(1)(vii) - Hon’ble Gujarat High Court in the case of CIT vs. UTI Bank Ltd. [2013 (1) TMI 209 - GUJARAT HIGH COURT] has observed that the CBDT Circular No.17 of 2008 dated 26/11/2008 had clarified the position beyond any doubt. Thus, the Hon’ble High Court refused to admit the appeal of Revenue observing that the Circular, issued by the Board in exercise of its statutory powers u/s. 119(2) of the Act may have the effect of relaxing the rigors of statutory provision. Thus, in the light of aforesaid decisions and CBDT Instructions we find no merit in ground No.5 of the appeal, hence, the same is dismissed.
Salary paid to expatriate employees - HELD THAT:- Undisputedly, the salary expenditure of expatriate employees was for rendering services wholly and exclusively for assessee in India. The quantum of expenditure and payment of salary to employees expatriated to India by head office has not been doubted by the AO. The solitary objection of Assessing Officer for disallowing expenditure is that no debit note was raised by head office.
CIT(A) has negated the objection raised by the AO by placing reliance on the decision in the case of Kedarnath Jute Manufacturing Co [1971 (8) TMI 10 - SUPREME COURT] Regarding applicability of section 44C of the Act, the CIT(A) placed reliance on the decision of Hon'ble Jurisdictional High Court in the case of Emirates Commercial Bank [2003 (4) TMI 2 - BOMBAY HIGH COURT] to conclude that payment of salary to expatriate employees paid by the head office is an allowable expenditure in view of Article 7(3) of the DTAA and section 37 of the Act and such expenditure does fall within the ambit of section 44C.
TP Adjustment in respect of Correspondent Banking Services rendered by the assessee to its AEs - Comparable selection - CIT(A) rejected all the four comparable on the ground of functional disparity. The CIT(A) further rejected Kinetic Trust Ltd. and PNR capital Services Ltd. proposed by the assessee on the ground of difference in functions. The CIT(A) made estimated T.P addition by applying 20% markup - HELD THAT:- Though there is no concept of estimated T.P addition, the ld. Authorized Representative for the assessee stated at Bar that the assessee had accepted the adjustment made by the CIT(A). The Revenue has assailed the findings of CIT(A) in rejecting T.P adjustment made by the TPO. TP concept was in nascent stage in assessment year 2002-03. The jurisprudence on Transfer Pricing was in infancy stage. Having rejected comparables the CIT(A) ought to have selected fresh set of comparables to benchmark the transaction. CIT(A) rightly rejected the comparables selected by the TPO as none of the comparables selected by the TPO were functionally comparable to the activities carried out by the assessee. We are of the considered view that transfer pricing adjustment made by the TPO has been rightly rejected by the CIT(A). Thus, the ground No.7 raised in appeal by Revenue fails.
Comparability analysis - TPO has selected comparable that is engaged in merchant banking activities - assessee is engaged in banking services - HELD THAT:- We find that while adjudicating Transfer Pricing issue, the CIT(A) has rejected all the comparable selected by the TPO. One of the comparable ( Pioneer Investcorp Ltd.) selected by the TPO was a registered category one merchant banker with SEBI. The CIT(A) has rejected the said comparable on the ground of functional disparity. The Revenue has failed to substantiate that the a functions carried out by the assessee are similar to those of a merchant banker. The assessee in ground No.2 has assailed rejection of comparables suggested by the assessee. No submissions were made by the ld. Authorized Representative for the assessee in this regard. Ergo, ground No.2 of the appeal is dismissed.
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2023 (4) TMI 1283
Maintainability of appeal - appeal filed by the petitioner was dismissed solely on the ground that the appeal was filed manually and not on portal - HELD THAT:- Since the issue involved is only procedural and keeping in view the order passed by the by the High Court of Andhra Pradesh in Ali Cotton Mill vs. Appellate Joint Commissioner (ST) [2021 (2) TMI 1165 - ANDHRA PRADESH HIGH COURT], this writ petition is allowed and order dated 13.12.2022 (Annexure P-1) is set aside and matter is remanded back to the appellate authority-respondent No.2 to pass a fresh order on merits, after giving opportunity of hearing to both the parties.
Petition allowed by way of remand.
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2023 (4) TMI 1282
Addition u/s 68 - identity of the creditor, the genuineness of the loan transaction and the creditworthiness of the creditor by furnishing documentary evidences not proved - HELD THAT:- Undisputedly, the assessee has failed to furnish PAN details, address proof, loan confirmation, ITR copy of the lender. It is also a fact that the name of the concerned lender has been struck off in the records of ROC. Therefore, there is serious doubt regarding the existence of the lender company. The assessee has also failed to prove the creditworthiness of the lender coupled with genuineness of the transaction. That being the case, the unsecured loan availed of Rs. 14,00,000 remains unexplained. Therefore, the addition made under Section 68 of the Act, in my view, is justified.
As regards, the alternative contention of the assessee that nonrepayment of loan will amount to cessation of liability, find the said submission preposterous. Once, there is serious doubt regarding the genuineness of the loan transaction and creditworthiness of the creditor, it is not understood how it can be treated as cessation of liability when the liability itself is non-genuine. Assessee appeal dismissed.
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2023 (4) TMI 1281
Late payment of PF and ESIC contribution but deposited before the due date of filing of the Income Tax Return - intimation passed u/s. 143(1) - HELD THAT:- We note that identical issue is recently decided against assessee by the Co-ordinate Bench in M/s Prashanti Engineering Works (P) Ltd. [2023 (3) TMI 729 - ITAT INDORE] after taking into account the latest decision of Hon’ble Supreme Court in Checkmate Services (P.) Ltd. [2022 (10) TMI 617 - SUPREME COURT] employees’ contributions to PF / ESI paid after due date under PF / ESI laws is not an allowable deduction in computing taxable income of business and the revenue-authorities have rightly disallowed the same. Therefore, we uphold the action of lower-authorities in making/confirming the impugned disallowance. Decided against assessee.
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2023 (4) TMI 1280
Admission of claim after Resolution Plan approved - HELD THAT:- From the facts which has been brought on record it does appear that there was inordinate delay in filing the claim by the Appellant. The Application which was filed by the Appellant came to be rejected by the Adjudicating Authority observing that Resolution Plan having been approved, no claim can survive.
Learned Counsel for the Appellant has relied on Judgement of Hon’ble Supreme Court in STATE TAX OFFICER (1) VERSUS RAINBOW PAPERS LIMITED [2022 (9) TMI 317 - SUPREME COURT] - there is no necessity to consider the judgement since the claim of the Appellant was not admitted by the RP or by the Adjudicating Authority.
There are no error in the order, the Appeal is dismissed.
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2023 (4) TMI 1279
Principles of res-sub-judice - HELD THAT:- The matter is pending for judgment in M/S FLIPKART INTERNET PVT. LTD. VERSUS THE STATE OF BIHAR [2023 (12) TMI 419 - PATNA HIGH COURT].
Post immediately after the judgment is delivered.
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2023 (4) TMI 1278
Stay of demand - legality and validity of the order as passed u/s 220(6) questioned directing the petitioner to pay an amount of Rs. 5 crores with the respondents by 30.03.2023 - HELD THAT:- While the main issue as to entitlement of the petitioner to exemption from income tax under Section 11 of the Act is the subject matter of the appeals pending before the first appellate authority, we are of the view that considering the status of the petitioner, which has been taken note of by respondent No. 1 himself, it would meet the ends of justice if petitioner pays an amount of Rs. 3 crores within a period of fifteen days from today. On such deposit being made, the demand raised by the respondents for the assessment years 2016-17 to 2021-22 shall remain stayed till disposal of the appeals stated to be pending before the first appellate authority. WP disposed.
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2023 (4) TMI 1277
Estimation of income on undisclosed sales - declaration made by the assessee during the course of survey - Income estimated on undisclosed turnover against the undisclosed excess stock of gold jewellery and bars found during the course of survey - HELD THAT:- As application of income earned is found in excess stock found and also in cash deposited in the bank account. The source of earning is from profit earned on undisclosed turnover and application is in stock and cash deposited in Bank.
As cash deposited in bank is being adjudicated separated, the assessing officer is directed to telescope the gross profit estimated on turnover outside the books of accounts against the excess stock found.
CIT(A) directed the assessing officer to give the telescoping effect of income estimated on undisclosed turnover against the undisclosed excess stock of gold jewellery and bars found during the course of survey. Hence separate addition made by the assessing officer was deleted by CIT(A). We have gone through the above findings of ld CIT(A) and noted that there is no infirmity in the order passed by CIT(A). The conclusions arrived at by the CIT(A) are, therefore, correct and admit no interference by us. We, approve and confirm the order of the CIT(A) and dismiss the ground nos. 1 and 2 raised by the Revenue.
Addition on account of cash deposited during the demonetization period - assessee did not explain the source of cash deposited - HELD THAT:- It is not a case where turnover outside the books of accounts was detected. The plea of the assessee could have been accepted in the later case and not in the former case as the assessee has deposited the entire cash in the bank account. Therefore, the alternative plea of the assessee was rejected.
In view of the above facts, the ld CIT(A) observed that the addition on cash deposit sustained is Rs. 61,80,827/- by the cash in hand of Rs. 26,47,736/-. The net addition sustained was at Rs. 35,33,091/-. The assessee got relief of Rs. 6,76,66,909/- (6,23,35,144 + 26,29,991+26,47,736).
CIT(A) directed the assessing officer to tax the said amount of Rs. 35,33,091/- (7,12,00,000- Rs. 6,76,66,909) u/s 68 of the Act as same was generated not from actual sale of jewellery or bullion, therefore, ld CIT(A) held the claim of sale as bogus as evidenced from entries in computer. Accordingly, the ld CIT(A) directed the assessing officer to tax the amount of Rs. 35,33,091/- as per the provisions of section 115BBE of the Act. We do not find any infirmity in the order of Ld. CIT(A), hence ground No. 3 of Revenue is dismissed.
Investment in undisclosed stock - business income OR undisclosed investment - HELD THAT:- The source of income was explained and is apparently established and hence section 115BBE of the Act, is not applicable for such business receipts. The provisions of Sections 68 and 69 are not applicable for trading transactions like deposit of cash out of cash sales and excess closing stock. For that reliance can be placed on the judgment of case of Shilpa Dyeing & Printing Mills Ltd [2015 (7) TMI 691 - GUJARAT HIGH COURT] Therefore, we direct the AO to tax the excess stock/sale, if any, under the head business income, (not u/s 115BBE) and amount of Rs. 35,33,091/- should be taxed at the rate of 2.5% (normal profit rate of assessee).
Quantification of excess stock - credit of disclosures during the course of survey and subsequently in the return filed - In assessment year 2017-18, when the survey was conducted, then assessing officer reopened the previous assessment years namely, assessment years viz: 2013-14, 2014-15, 2015-16 and 2016-17 and re-estimated the profit on turnover at the rate of 5%. On appeal, ld CIT(A) reduced profit to 2.5%. We note that assessee has declared cash sales/PMGKY Scheme (sales bill reversed-So Stock increased) at Rs. 5,00,00,000/-, hence the assessee is entitled for telescoping of these previous assessment years which were completed after assessment year 2017-18. Therefore, we direct the assessing officer to grant the telescoping of these previous assessment years viz: 2013-14, 2014-15, 2015-16 and 2016-17.
Estimation of NP - Suppressed sale of jewellery and suppressed sale of bullion - HELD THAT:- CIT(A) noted that compared to the average net profit disclosed for these preceeding assessment years, the 5% net profit estimated by the AO is on a higher side. Hence, if the net profit is taken at 2.5% of the unrecorded/suppressed turnover of jewellery which is about 0.87% above the average net profit of 1.63% would meet the ends of justice. Similarly, for bullion the assessee has the separate record of only A.Y 2014-15 and 2015-16 where the average net profit is a loss. In absence of the separate details for bullion for all the proceeding assessment years, the prevalent market rate of 0.2% on sale on bullion would be the appropriate net profit rate. Accordingly, ld CIT(A) directed the assessing officer to estimate the net profit at the rate of 2.5% on the suppressed sale of jewellery and 0.2% on suppressed sale of bullion.
This way, ld CIT(A) allowed the appeal of the assessee for all these 3 assessment years partly. We do not find any infirmity in the above conclusion reached by ld CIT(A). That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
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2023 (4) TMI 1276
Unaccounted interest payment - AO relied upon the statement of CFO recorded who confirmed that since the buyers are putting money into the project they have advantageous position of buy back clause mentioned in the agreement and the buy-back price was not determined as charging of interest @ 24% clause was available in the agreement, thus held that the prime intention of the lender in the above mentioned deal was to get the loan alongwith committed amount of interest, instead of plots - HELD THAT:- All the lender parties were allotted the same area of plot as was quantified in the Amendatory Loan cum Purchase Agreement without any further charges. That infact, it is only such amendatory agreement which had been acted upon when the vendees had also taken both constructive and physical delivery of plots allotted to them. Thus, the lenders have exercised their option to acquire the plots of land instead of accepting the amount of interest originally agreed to be taken from the assessee.
This fact itself shows that the original loan agreements, at this juncture, were effectively converted into an agreement to sell/purchase of plots, and hence accrual of any interest does not arise at all. It is a fact that as per the terms of the Amendatory Loan cum Purchase Agreement, on exercise of the option to purchase the residential plot, the loan agreements and Amendatory Loan cum Purchase Agreement shall be deemed to be an agreement to sell and purchase of the residential plots. Under the loan agreements, Amendatory Loan cum Purchase Agreement and Extension Agreements, PDCs were given to the lender/customer in respect of principal amount and interest amount.
Since the lenders/customers never treated the agreement as loan agreement but always wanted to purchase the plot, as such, PDC’s were never encashed. Had it been a case of loan instead of advance then obviously the allottees of the land, instead of taking the delivery of plots would have enchased the PDCs. The PDCs were given only as a security pending allotment so that the amounts are secured.
An undisputed fact that ultimately the plots were allotted to these parties as per Amendatory Loan cum Purchase Agreement/extension agreements. The situation could have been different, had they not exercised the option to purchase the plots or the plots were not allotted to such lenders.
Once the plots were ultimately allotted to such parties, the nature of the agreements changed from loan agreement to agreement to sell/purchase of the plots. It is also a fact on record that no evidence of payment of any such interest has been found, which itself proves that no such liability by way of interest has accrued to the assessee. Infact, neither in the assessment proceedings nor in the first appellate proceedings, any material has been brought on record to support the assumption that the assessee has incurred a liability by way of interest. There is no evidence, even, to suggest that the lenders have actually received any interest. Contention of the revenue that the assessee has paid the entire accrued interest till the date of allotment of the plots to the lenders, as agreed, but outside its books in cash is nothing but a figment imagination and based on mere suspicion and surmises.
Academically, if the statement of the revenue, that the assessee has paid unaccounted interest to the lender parties is considered as correct, in the backdrop of the fact that the principal amount received is accounted by the assessee as well as by the loan parties, the payment of interest from the books would be advantageous to the assessee to reduce their taxable income and hence we are not in a considered situation to accept the presumption of the revenue.
Agreements themselves show that the interest was not actually paid upto 27.08.2010 but accumulated and hence the question of payment of interest annually and disallowance of such interest by the revenue doesn’t arise. And since the space was allotted by the assessee to these parties even the purported accumulated interest cannot be taxable in the A.Y. 2011-12. With regard to the allegation of the revenue that buy-back value is less than the principal plus interest proves that assessee has paid the unaccounted interest and is taxable u/s 69C of the Act is erroneous in the absence of any material found either from the premises of the assessee or from the premises of investors that assessee has paid any unaccounted interest, as there can be none, since the investors were allotted the plot of land as was stipulated in the Amendatory Loan cum Purchase Agreement and Extension Agreements.
We decline to interfere with the order of ld. CIT(A) pertaining to the interest chargeable in case of SEH Realtors Pvt. Ltd. and unaccounted interest payment on account of Jaipur Project. With regard to NH8 Project, since the plots have been duly allotted as per the modified agreements and in the absence of any material found and seized/impounded suggesting interest payment in cash/unaccounted, we hold that no interest can be taxed on notional basis.
Addition on account of Cash Receipts - AO held that the following seized documents show that the actual deal size was Rs. 150 crores out of which only Rs. 105 crores were recorded, and the deal entailed cash payments/receipts which were not recorded in the books of accounts - HELD THAT:- As relying upon certain email communications between some persons related to the assessee company and other entities, AO has concluded that in addition to the amount recorded in the agreement towards consideration for sale of land in Sector 84 and 85 of Gurgaon, the assessee received money in cash, as, the information in the email suggests that the total consideration paid towards purchase of land by different entities was to the tune of Rs.150 crores and not the recorded amount of Rs.105 crores.
It is observed from the materials on record, except the email communications, the Assessing Officer has no other corroborative evidence to conclusively prove that money in cash had actually changed hands. Except the email communications, no other documents have been seized, either from the assessee or from other entities to indicate that cash payment was actually made. Apart from relying upon the email communication, the Assessing Officer has not made proper inquiry to establish on record that cash payments were actually made to the assessee.
As rightly observed by Commissioner (Appeals), the emails on which the AO placed reliance, essentially, do not patently show any agreement or discernible consent arrived at between the buyer and seller regarding the land to be purchased or the rate per sq. yards. The emails are in the nature of discussions and proposals to a planned purchase transaction. It has been factually found by Commissioner (Appeals) that the figures relating to the alleged total deal vary in different emails - Commissioner (Appeals) has also given a factual finding that no seized materials were found conclusively establishing that any amount in cash was actually paid or any such sum was adjusted against the final sale consideration.
Revenue has failed to controvert any of the factual findings recorded by learned Commissioner (Appeals). Though, email relied upon by the Assessing Officer may give rise to suspicion that there may be cash payment in addition to the recorded sale consideration, however, such suspicion, howsoever strong, cannot take place of evidence. It is a fact on record that the Assessing Officer has not brought any evidence to establish that cash payments were actually made to the assessee.
Addition u/s 69A - cash found from the office premises of appellant - HELD THAT:- As evident, in course of assessment proceeding, not only the assessee had requested the Assessing Officer for issuing summons to the concerned persons to verify assessee’s claim, but on the insistence of the AO the assessee could be able to produce 4 persons. As it appears, the Assessing Officer has not made any effort to ensure the attendance of the other 5 persons. AO has been conferred with adequate power under the statute to not only conduct necessary inquiry, but even enforce attendance of witness. In the facts of the present appeal, the AO has failed to exercise such statutory power.
On the other hand, he has put the entire burden on the assessee to prove the source of cash seized. When the assessee has furnished explanation regarding the source of cash seized, the AO was duty-bound to make proper inquiry to take the issue to its logical end. Since, the departmental authorities have failed to undertake necessary inquiry to ascertain the veracity of assessee’s claim regarding source of cash seized, the assessee cannot be faulted for not providing the required details and proving the source, identity of the persons from whom the amount has been received on account of advance bookings of the plots. The onus having been discharged by the assessee, it was for the revenue to disprove the contentions of the assessee. The assessee cannot be faulted for not issuing the summons u/s 131 by the Assessing Officer and to make further enquiries as deemed fit. Hence, the appeal of the assessee on this ground is liable to be allowed.
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2023 (4) TMI 1275
Whether the condition imposed while granting bail, i.e. of the passport being detained in such circumstances would continue to operate? - stipulation for the appellant to join the investigation every month by seeking a modification that as and when called the appellant will attend to those proceedings - HELD THAT:- The appellant wants to travel abroad to attend to his father-in-law on medical grounds. As a restraint on the passport normally arises only in extremely serious cases, it cannot be done in routine.
The condition (ii) stating that Petitioner shall submit his passport, if any, before the Trial Court and shall not leave India without prior permission of this Court is waived off - condition (i) stating Petitioner shall co-operate with the investigation and shall appear before the Investigating Officer/Department as and when required. In addition, to that he shall appear in the first week of every calender month before the officials of the Department till the filing of the charge-sheet against him and shall cooperate with the investigation till the filing of the charge-sheet against him is modified to the extent that the appellant will be required to report to the respondent as and when intimated to do so.
The consequence would be that passport need not be deposited and the appellant is permitted to leave India without the requirement of reporting to the Court.
Appeal disposed off.
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2023 (4) TMI 1274
Reversal of the finding of the Trial Court - two possible views and the one taken by Trial Court being a possible view - erroneous reversal by High Court while re-appreciating the said evidence - appreciation of evidence in proper manner or the High Court had failed to consider the evidence in proper perspective or not - HELD THAT:- Section 27 permits the derivative use of custodial statement in the ordinary course of events. There is no automatic presumption that the custodial statements have been extracted through compulsion. A fact discovered is an information supplied by the Accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered at the instance of the Accused which was not within the knowledge of the police before recording the disclosure statement of the Accused. The statement of an Accused recorded while being in police custody can be split into its components and can be separated from the admissible portions.
It is a trite law that in pursuance to a voluntary statement made by the Accused, a fact must be discovered which was in the exclusive knowledge of the Accused alone. In such circumstances, that part of the voluntary statement which leads to the discovery of a new fact which was only in the knowledge of the Accused would become admissible Under Section 27 - Merely because the translation was made from Malayalam to Tamil and written down in Kannada would not suggest that such statement be held to be either not being voluntary or the said statement having been recorded improperly. The interpreter having entered the witness box and tendered himself for cross-examination which resulted in nothing worthwhile having been elicited for discarding his evidence, it cannot be gainsaid by the Accused that said statement at Ex. P-2 is to be ignored or rejected or discarded. Merely because PW-10 did not know how to read and write Malayalam does not ipso facto make the contents of Ex. P-2 to be disbelieved.
It is no doubt true that confession of PW-25 in its entirety is not admissible in view of Section 25 of the Evidence Act. However, in the teeth of Section 8 read with Section 27 of the Evidence Act, that part of the confession which led to the recovery of the dead body of the victim would become admissible, apart from other articles of the deceased recovered at the instance of the Accused has been identified by several witnesses independently. This has also persuaded the High Court to accept the statement recorded under Ex. P-2 as being admissible which cannot be construed as highly improbable.
On re-appreciation of entire evidence by the High Court in proper perspective it has resulted in arriving at a right conclusion viz. that Accused alone has committed the murder of the deceased Mr. Jose C. Kafan and there being no other possible view which could be considered as missing in the link of chain of circumstances, this Court is of the considered view that appeal deserves to be dismissed as being devoid of merits.
Appeal dismissed.
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2023 (4) TMI 1273
Seeking refund to the Corporate Debtor’s Account in the Corporate Insolvency Resolution Process - existence of sufficient cause and non-appearance of the parties or not - it was held by NCLAT that Although the Plea of Covid-19 Pandemic, appears to be a persuasive one, at the first blush, on acceptable one, on going through the spirit and tenor of the Counter filed by the Respondent, this Tribunal without any haziness, comes to an inevitable and inescapable conclusion that there is no Sufficient Cause / Good Cause for Allowing the application.
HELD THAT:- There are no reason to interfere with the impugned order dated 25 January 2023 passed by the National Company Law Appellate Tribunal at Chennai - appeal dismissed.
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2023 (4) TMI 1272
MEIS scheme - conversion of the EPCG shipping bill into the EPCG cum Drawback shipping bill - Condonation of delay in filing appeal - HELD THAT:- Application for condonation of delay will stand dismissed. The special leave petition will consequently stand dismissed.
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2023 (4) TMI 1271
Dishonour of Cheque - acquittal of accused for extraneous consideration and not relying on the materials on record for coming to her conclusion - HELD THAT:- The judgment delivered by the proceedee/writ petitioner misses out on certain basic facts even though the Officer had herself examined the prosecution witnesses and had exhibited the documents; but to accept the proposition that it was guided by unjust and extraneous considerations, especially in the absence of any evidence on record towards that effect, is difficult.
In K. P. Tiwari Vs. State of M.P. [1993 (10) TMI 367 - SUPREME COURT], the Supreme Court had the occasion to examine the appropriateness of the remarks which was made against a Judicial Officer by the High Court while reversing the order of bail granted by that Officer. In that case, the records revealed that the bail was granted without hearing the State Counsel or verifying the facts, which in the estimation of the High Court pointed towards the interestedness of the Judicial Officer granting bail. That interestedness was found in about five cases in which bail was granted by that Judicial Officer - the Supreme Court was of the view that no matter how unmerited was the bail order granted by the Judicial Officer, the High Court ought not to have ignored the judicial precaution and propriety even momentarily. A wrong judicial order could be modified or set-aside. This is one of the functions of the superior Courts. The legal system acknowledges the fallibility of the Judges and, hence, there is provision for appeals and revisions. A Judge tries to discharge his duties to the best of his/her capacity but while doing so, he/she may err sometimes.
In the instant case, it is found that there is a solitary charge against the Judicial Officer of having recorded a verdict of not guilty in a complaint case, relating to an offence under Section 138 of the N.I. Act, 1881. Prima facie, the records reveal that necessary documents in support of the prosecution were available on record.
The benefit of doubt given to the petitioner as a Judicial Officer, who might well have passed an order in a hurry. Many a times, such orders do reflect a motive of helping the accused which in turn could be without any unjust consideration, but that cannot be taken as the sole motivating factor in all cases where the judgments do not pass the test of constitutionality and legality, facts, law or otherwise.
The final outcome of the departmental proceeding of the petitioner not agreed upon - The punishment awarded to her is much too harsh even for the recklessness having been exhibited by her as a Judicial Officer.
After having given anxious consideration over such suggestion, it is found that doing so it would only be counter productive as the petitioner is a Judicial Officer, who would again be subjected to such rigors unnecessarily when there does not require any other evidence to prove that the judgment of acquittal was totally unmerited. To prove that there was extraneous consideration behind such unmerited acquittal would require a revisit of the entire charge before a disciplinary authority, which is neither warranted nor necessary, as it was a solitary instance which has been reported.
The decision of compulsory retiring the petitioner is set aside and the sentence modified by directing for withholding of three increments of pay with cumulative effect - petition allowed.
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2023 (4) TMI 1270
Reopening of assessment - Time limit for notice u/s 149 - whether an order could be issued u/s.148A(d) and, thereafter a notice u/s. 148 of the amended Income Tax Act when quantum of income which escaped assessment is alleged to be less than 50 lacs? - HELD THAT:- Prima facie it appears that even if the CBDT letter provides otherwise, the same cannot supplant the statutory provision u/s. 149 of the Income Tax Act and therefore, prima facie the petitioner appears to have made out a case for admission and interim relief.
Accordingly, as an interim relief, it is directed that the notice u/s 148 of the amended Income Tax Act and the order u/s 148A(d) of the amended Income Tax Act shall remain stayed, till the next date of hearing.
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2023 (4) TMI 1269
SEBI power to initiate proceedings against statutory auditor - irregularities and misstatements in the financial statements ignored by auditors - Investigation alleged that CAS and KKM had been acting against the fiduciary capacity, and that instead of working in the interest of shareholders of CG Power, they facilitated the scheme of cleaning up the books of accounts of CG Power, despite being aware of the irregularities and misstatements in the financial statements of CG Power - violation of provisions of section 12A(a), (b) and (c) of the SEBI Act, 1992 and Regulations 3(b), (c) and (d), 4(1) and 4(2)(f) of the PFUTP Regulations, 2003.
Inordinate delay in issuing the SCN i.e. about 5-6 years old - HELD THAT:- There is no provision under SEBI Act which prescribes a time limit for taking cognizance of a breach of the provision of SEBI Act and Rules and Regulations made thereunder. Further, as per Section 11C of SEBI Act, SEBI can initiate investigation at any point of time, for any period of alleged violation or any period of alleged transactions. In this regard, we note that SEBI initiated the investigation as soon as information regarding the issue came to its notice. Examination relating to this case are complex and time consuming process, which may require detailed analysis of the case facts as the current case involves multiple layers of transactions between multiple entities including entities situated in foreign jurisdictions. Subsequently, pursuant to the completion of examination, SCN was issued on October 18, 2021.
Thereafter, we note that all the relevant information relied on for crystallizing the allegations against the Noticees have been provided to them and there was no delay the way it has been argued by Noticee No.1. Further, Noticee No.1 has also not specified how the delay, if any, has caused prejudice to it.
Whether inspection and copies of certain documents sought was not provided? - As all relevant material relied upon in the instant proceedings have been provided to Noticee and exhaustive reply has also been filed by Noticee No.1 as already detailed in the preceding paragraphs. Further, Noticee No.1 has also not sufficiently demonstrated how the documents sought by it were relevant to the allegation in the present case of not disclosing the fact of the case and how this ground of non-availability of information has caused prejudice to it, thus the principles of natural justice have been complied with and the Noticee No.1's request in this regard are without merits.
Default by Auditors - As despite being aware of the irregularities and misstatements in the financials of CG Power, Noticee No. 1 and 2 facilitated the scheme of cleaning of the books of account by the company and allowed to show the financials of the company as true and fair by certifying the same in its audit report for 2016-17 and 2017-18 respectively. Accordingly, I note that by doing so, they have violated the provisions of Sections 12A(a), (b) and (c) of the SEBI Act, 1992 and Regulations 3(b), (c) and (d), 4(1) and 4(2)(f) of the PFUTP Regulations, 2003.
Does the violation, if any, on part of the Noticees attract penalty under Section 15HA of the SEBI Act? - As the alleged violation of the provisions of Sections 12A(a), (b) and (c) of the SEBI Act, 1992 and Regulations 3(b), (c) and (d), 4(1) and 4(2)(f) of the PFUTP Regulations, 2003 stands established against the Noticees and accordingly the Noticees are liable for monetary penalty under Section 15HA of the SEBI Act.
How much penalty should be imposed on the Noticees taking into consideration the factors mentioned in Section 15J of the SEBI Act? - After considering all the facts and circumstances of the case and the factors mentioned in the provisions of Section 15-J of the SEBI Act, and in exercise of the powers conferred upon me under section 15-I of the SEBI Act, read with Rule 5 of Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules 1995 Penalty of Rs.5,00,000/- (Rupees Five Lakh Only/-) need to imposed. The Noticees shall remit / pay the said amount of penalty within 45 days of receipt of this order through online payment facility available on the website of SEBI
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2023 (4) TMI 1268
Staying operation of communication dated 9.3.2023, which is from the office of the Deputy Collector, Customs, Mundra - Erroneous refund granted to the petitioner - Constitutional validity of Rule 96(10)(b) of Central Goods and Services Tax / Gujarat Goods and Services Tax, 2017 - HELD THAT:- It is an admitted position that other petitions relying the vires of Rule 96(10)(b), have been entertained by this Court and the same are pending consideration. In those petitions, interim relief is granted to those petitioners concerned which is evident from the orders annexed in the compilation of Civil Application.
When the authorities have acted to address the aforesaid communication dated 09.03.2023 even when the main petition is pending, the petitioner deserves to be treated at par with the other similarly situated petitioners, to be entitled to ad-interim relief - by way of interim relief, it is directed that the adjudication proceedings may go on, however, there shall be no coercive recovery against the petitioner.
Application allowed.
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2023 (4) TMI 1267
CENVAT Credit - intermediate products at the hands of the job worker - requirement of adding the value of scrap - burden of discharging duty liability of the processed goods - scrap retained by the job-worker should be included in the assessable value of the processed goods - HELD THAT:- The issue involved in the present case has been settled in the appellants own case for the period from April 2007 to December 2010, in M/S SHILPA STEEL & POWER LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2014 (12) TMI 945 - CESTAT MUMBAI] where it was held that the appellant has discharged the duty liability on the scrap, which has been generated and the transaction could have been undertaken under Rule 4(5)(a) of the Cenvat Credit Rules. If the appellant had followed the said procedure instead of paying duty, the question of inclusion or exclusion of value of the scrap would not have arisen at all. In these circumstances, the question of addition to value of scrap, is not sustainable.
There are no merits in the impugned order - appeal allowed.
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2023 (4) TMI 1266
Validity of impugned garnishee notice - recovery of the interest demand arising out of the adjudication order in original - case of petitioner is that before the expiry of three months of filing the appeal such harsh steps for recovery of interest has been taken under Section 78 of the WBGST Act, 2017.
HELD THAT:- Without going into the merits and legality of the recorded reasons for taking recourse to proviso to Section 78 of the Act during the pendency of the appeal, the impugned garnishee order is stayed, if the petitioner pays 20% of the interest due amounting to Rs. 24,74,434/- within seven days from date and further the Appellate Authority concerned is directed to dispose of the appeal in question expeditiously and preferably within six weeks from the date of communication of this order and further recovery of the due in question will depend upon the final outcome of the appeal and in the mode and manner as prescribed under the law.
Petition disposed off.
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2023 (4) TMI 1265
Addition u/s 69 - unexplained investments made in the JP Minda Group of companies - AO made an addition on protective basis in the hands of the assessee company and the addition has been made on substantive basis in JP Minda Group Companies - HELD THAT:- Since, the substantive additions have been deleted on merits and no observation has been given that the substantive additions were deleted owing to the fact that the addition made on protective basis in the hands of the assessee company and since the assessee company has not been held to be the right assessee wherein, the substantive additions were supposed to be made by any of the authorities viz. CIT(A), co-ordinate bench ITAT, Hon’ble High Court, we hereby affirm the order of the CIT(A)
Since, the appeal of the Revenue is dismissed on the core issue of taxability of the amount on the protective basis, any adjudication of the technical issues raised by the assessee under Rule 27 of ITAT Rules, 1963 becomes academic in nature.
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