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Showing 141 to 160 of 2345 Records

• 2018 (7) TMI 2207 - ITAT VISAKHAPATNAM
  

  Unexplained cash credits u/s 68 - as assessee failed to offer the nature and source of credits, the AO made the addition - HELD THAT:- Assessee has withdrawn the amounts and made the payments to land lords during the financial year 2009-10 from January to March on three occasions. Similarly, the assessee has made cash deposits of ₹ 805,00,00 from April 2010 to September 2010 and the time gap for withdrawal and deposit was very short. The revenue has not disputed the fact that the assessee had withdrawn the sums from his bank accounts and there were no other investments made by the assessee as per the information available on record, to disbelieve the submission of the assessee.

  If the AO disbelieves the land advances, conclusion would be the availability of cash with the assessee unless it is established that the funds were used for some other purpose. Since the assessee had sufficient cash balance available from the withdrawals made from the Bank, there is no reason to suspect the source of deposits made in the bank account

  In case, the department is of the view that advances given was false the same sum of ₹ 95.00 lacs would be available as cash balance and the assessee required to be assessed for wealth tax, but there is no case for disbelieving the source. The fact remains that the assessee has withdrawn the sum of ₹ 95,00,000/- and the said amount would be available to the assessee either in cash or advances unless it is proved otherwise. Since the assessee had sufficient withdrawals from the bank account in the immediately preceding assessment year, we do not see any reason to disbelieve the source of credits made in the bank account. - Decided in favour of assessee.

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• 2018 (7) TMI 2206 - SUPREME COURT
  

  Employees Provident Fund - non-payment of the Provident Fund contribution - non-consideration of non-working days of the employees - non-application of mind - HELD THAT:- In the absence of any application of judicial mind to the factual and legal controversy involved in the appeal and without there being any discussion, appreciation, reasoning and categorical findings on the issues and why the findings impugned in the writ petition deserve to be upheld or reversed, while dealing with the arguments of the parties in the light of legal principles applicable to the case, it is difficult for this Court to sustain such order of the Division Bench. The only expression used by the Division Bench in disposing of the appeal is "on due consideration".

  Time and again, this Court has emphasized on the Courts the need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned Counsel for the parties in support of its conclusion. It is really unfortunate that the Division Bench failed to keep in mind these principles while disposing of the writ petition.

  Case remanded to the Division Bench of the High Court for deciding the writ petition afresh on merits in accordance with law - appeal allowed by way of remand.

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• 2018 (7) TMI 2205 - SUPREME COURT
  

  Minimum tenure for Director General of Police - the Director General of Police will continue for at least two years irrespective of the date of superannuation or not - HELD THAT:- All the States shall send their proposals in anticipation of the vacancies to the Union Public Service Commission, well in time at least three months prior to the date of retirement of the incumbent on the post of Director General of Police - The State shall immediately appoint one of the persons from the panel prepared by the Union Public Service Commission.

  The present directions shall be followed scrupulously by the Union of India and all the States/Union Territories. If any State Government/Union Territory has a grievance with regard to these directions, liberty is granted to them to approach this Court for modification of the instant order - Application disposed off - List after two weeks.

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• 2018 (7) TMI 2204 - ITAT DELHI
  

  Exemption u/s 11 - Assessment of trust - assessee is making huge profits and the dominant object is profit-making - CIT- A allowed the deduction - HELD THAT:- CIT(A) followed the order in assessee’s own case for the Assessment Year 2009-10 inasmuch as the facts and circumstances of the case are the same and there is no material to deviate from such decision of the earlier year. It is also brought to our notice by the Ld. AR that this issue has been directly and substantially been dealt a with the by the Tribunal in assessee’s own case for the assessment years 2009-10 and 2012-13 and also the Hon’ble jurisdictional High Court upheld the findings of the Tribunal for Assessment Year 2009-10

  Addition on account of interest income - AO observed that the assessee society had given some loans to Sh. Balkrishan Education and Social Welfare Society and added the notional interest at 12% to the income of the assessee - HELD THAT:- Tribunal deleted the same holding that the interest free funds transferred to Sri Balakrishna Society, having similar charitable objects, have finally reached to Sri Balakrishna Education and Social Welfare Society for construction of school building wherein 600 students of the assessee are studying. On this aspect also there is no allegation that the funds have not reached back finally to Sri Balakrishna Education and Social Welfare Society with which the assessee merged, for construction of school building.

  Depreciation to asset of assessee trust - claim of depreciation which the Ld. AO disallowed on the premise that the purchase of assets was an application of income and hence the grant of depreciation would amount to double benefit - HELD THAT:- This issue was considered in the light of the decision in CIT vs. Rajasthan and Gujarati Charitable Foundation, Poona [2017 (12) TMI 1067 - SUPREME COURT] to reach a conclusion that subsection (6) of section 11 was inserted by Finance Act, 2014 and is only prospective in nature, as such, depreciation cannot be disallowed. While respectfully following the same, we dismiss the grounds of appeal of revenue relating to this issue.

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• 2018 (7) TMI 2203 - MADRAS HIGH COURT
  

  Benami Property Transactions - orders of provisional attachment - beneficial owner of the property - petitioner seeks for issuance of a Writ of Mandamus to direct the 1st respondent to furnish the entire set of documents referred by the petitioner - HELD THAT:- As the request for any other sworn statements taken during the survey proceedings on 09.03.2017 is absolutely vague. Apart from that, the proceedings were not conducted by the 1st respondent but by the 2nd respondent. Therefore, to seek any other sworn statements recorded by the 2nd respondent from the 1st respondent is not maintainable and therefore, such request has to be rejected and accordingly, rejected.

  Petitioner also requests copy of sworn statement recorded from him s recorded by the 2nd respondent during the course of survey proceedings - This court is inclined to entertain the request made by the petitioner for the reason that statement which was recorded from the petitioner by the 2nd respondent during the course of survey proceedings shown to be prima facie used for issuing notice under the provisions of Benami Property Transactions Act - provisions of natural justice is met. This statement is given especially when the matter has already culminated in an order under section 24(4) of the Act, therefore, to the said extent alone, the petitioner would be entitled for the relief. Accordingly, the 1st respondent is directed to provide the certified copy of the statement given by the petitioner in the survey proceedings which was admitted, within a period of one week from the date of receipt of a copy of this order.

  Challenge order passed under section 24(4) of the Benami Property Transactions Act, 1988 - As the prayer sought for by the petitioner is not maintainable, since the order passed under section 24(4) of the Act is being an order of provisional attachment and the petitioner cannot be stated to have been aggrieved over such order, especially, when the adjudicating authority under the Benami Act has already initiated proceedings under section 24(4) of the Act, which is only a provisional attachment and cannot be permitted to stall the adjudication under the Act by the adjudicating authority.

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• 2018 (7) TMI 2202 - ITAT JAIPUR
  

  Reopening of assessment u/s 147 - sufficiency of reasons - AO jurisdiction to proceed with the reassessment proceeding - HELD THAT:- The specific observations of the Jurisdictional High Court in case of CIT vs. Shri Ram Singh [2008 (5) TMI 200 - RAJASTHAN HIGH COURT] are that in case during the proceedings U/s 147 of the Act, the AO came to conclusion that any income chargeable to tax which according to the reasons to believe has escaped assessment for any assessment year, did not escape assessment, then, the mere fact, that the AO entertained a reason to believe though a genuine reasons to believe would not continue to vest him with the jurisdiction to tax any other income.

  In the case once the income which was proposed to assess as per reasons recorded by the AO found declared in the return of income then, the AO ceased to have jurisdiction to proceed with the reassessment proceeding to assess any other income to tax. In view of the above facts and circumstances of the case and by following in case of the CIT vs. Shri Ram Singh we hold that the reassessment is in valid and not sustainable in law. Accordingly, we quash the reopening of the assessment and consequential reassessment - Appeal filed by the assessee is allowed

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• 2018 (7) TMI 2201 - ALLAHABAD HIGH COURT
  

  Dishonor of cheque - insufficiency of funds - legality of summon - Whether in the absence of the company as a party to the complaint, the authorized signatory of the company can be summoned under section 138 N.I. Act or not? - HELD THAT:- The complaint filed under section 138 N.I. Act, in respect of an offence committed by a company i.e. where the cheque is issued on behalf of the company would not be maintainable if the company on whose behalf the cheque has been issued is not impleaded as an accused/opposite party in the complaint. Admittedly, in the complaint filed by opposite party no. 2 before the court below the company namely M/s. Usher Agro Limited was not impleaded as a party to the complaint.

  Whether the failure on the part of the complainant to implead the company as an accused/opposite party in the complaint is fatal and incurable? - HELD THAT:- In the present case, the Court finds that the complaint was filed on 30.5.2016. The summoning order was passed on 28.6.2016, the application for impleadment and to summon the additional accused was filed on 23.9.2016, which was allowed on 10.4.2017. Therefore, upto this stage, the Magistrate has not applied his mind to the contents of the complaint. Therefore, the order dated 10.4.2017 passed by the Magistrate cannot be said to be illegal - there is no iota of doubt that in a case under section 138 of the N.I. Act, if the company on whose behalf the disputed cheque was issued was not impleaded, can be subsequently impleaded. However, the only rider to the aforesaid proposition is that the material particulars in respect of the same should be present in the complaint filed under section 138 of the N.I. Act or else the same being barred by limitation cannot be permitted at a belated stage.

  In the present case, the complaint was filed on 20.4.2016 and the application to summon the company as an additional accused was filed on 23.9.2016. The omission to implead the company as an accused/opposite party was not such an infirmity which could not have been allowed to be cured as all material particulars necessary for implicating the company as an accused were already pleaded in the complaint dated 20.4.2016. Therefore, there is no illegality was committed by the Court below in passing the order dated 10.4.2017 on the application dated 23.9.2016, filed by the complainant for summoning the company as an accused.

  Whether the company namely M/s. Usher Agro Ltd. Could have been summoned under section 319 Cr.P.C. even when no evidence had been recorded by the court concerned? - HELD THAT:- In addition to the aforesaid, an ancillary question shall also arise as to whether the Court below could have summoned the applicant M/s. Usher Agro Ltd, even when the scope of section 319 Cr.P.C. is limited only to post cognizance stage when complicity of person other than those named as an offender comes to light from the evidence recorded in the course of enquiry or trial - there is no provision in the N.I. Act or the Code of Criminal Procedure which prohibits the impleadment of a party to the complaint as an additional accused/opposite party. Similarly, there is no provision either under the N.I. Act or the Code of Criminal Procedure providing for impleadment of a person as an accused/opposite party in a complaint.

  The application filled by the applicants for taking cognizance against applicant No. 2 company comes under the purview of Section 190(1) (a) Cr.P.C. because the name of the applicant No. 2/company as an accused and the basis of its accusation were already mentioned in the complaint at the time of its filling. It is the fault of the trial Court which summoned the Director alone and left the company. Such defect is not an incurable defect and can be cured by the trial Court at any time. There is no bar under Section 190 Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record.

  Petition dismissed.

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• 2018 (7) TMI 2200 - CESTAT KOLKATA
  

  Refund claim - time limitation - refund was claimed after a period of 6 years - HELD THAT:- Hon’ ble Guwahati High Court in the case of VERNERPUR TEA ESTATE OWNED BY CACHAR NATIVE JOINT STOCK CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE SHILLONG [2018 (2) TMI 1883 - GAUHATI HIGH COURT] has decided the issue, where the Tribunal’s order was set aside and claim of the assessee for refund after six years was allowed with the cost of ₹ 1000/-.

  It appears that the issue is identical where the refund claim was rejected being time barred by more than 6 (six) years. But in the case of Vernerpur Tea Estate & Ors. the Hon’ ble Guwahati High Court has condoned the delay and allowed the claim of the assessee with cost - By following the ratio as laid down by the Hon’ble Jurisdictional High Court, the impugned orders are set aside and claim of the appellants regarding refund is allowed.

  Appeal allowed.

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• 2018 (7) TMI 2199 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH
  

  Seeking to allow the compounding of the offence committed under Section 165(1) read with Section 165 (3) of the Companies Act, 2013 - Section 441 of the Companies Act, 2013 - HELD THAT:- It is not in dispute that the applicant was Director in more than 10 Public Companies for a period of 21 days in contravention of the provisions of Section 165(1) of the Act. Section 441(4) of the Act confers jurisdiction on this Tribunal to accept compounding of certain offences under the Companies Act subject to fees.

  As far as the case at hand is concerned, the applicant resigned as a Director of 4 public companies reducing their numbers to 10. But he was Director in 14 companies for 21 days in contravention of provisions of Section 165(1) of the Act since he resigned as Director of 4 companies within 21 days of the notice.

  The application is allowed.

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• 2018 (7) TMI 2198 - KARNATAKA HIGH COURT
  

  Maintainability of appeal in HC u/s 260A - TP Adjustment - Negative working capital adjustment - Whether the Tribunal was right in directing the TPO to consider the claim of risk adjustment even when there is no reliable method to convert the qualitative difference into quantitative difference and to make adjustment on account of risk level? - Whether Tribunal was right in taking different stands on adjustments to comparables margins to make them comparable to the tested party, so that the assessee benefits both ways and Revenue looses both ways since it goes against the principles of quality and natural justice? - HELD THAT:- As decided in own case [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue u/s 260-A of the Act is not maintainable.

  We are therefore of the considered opinion that the present appeals filed by the Revenue do not give rise to any substantial question of law and the suggested substantial questions of law do not meet the requirements of Section 260-A of the Act and thus the appeals filed by the Revenue are found to be devoid of merit and the same are liable to be dismissed.

  We make it clear that the same yardsticks and parameters will have to be applied, even if such appeals are filed by the Assessees, because, there may be cases where the Tribunal giving its own reasons and findings has found certain comparables to be good comparables to arrive at an ‘Arm’s Length Price’ in the case of the assessee with which the assessee may not be satisfied and have filed such appeals before this Court. Therefore we clarify that mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not at all a sufficient reason to invoke Section 260-A of the Act before this Court.

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• 2018 (7) TMI 2197 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
  

  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The provisions of the Insolvency Code are absolutely clear that if there is an ‘existence of a dispute’ among the rival parties in respect of the Debt in question, then such Petition is not fit for "admission". In this case, because of the peculiar features that the Petitioner itself has moved a Litigation before the Hon’ble High Court of Bombay, revolving around the identical set of facts and the similar amount of Debt in question, the admission of this Petition is not permissible as laid down in the provisions of the Insolvency Code.

  As far as the question whether the impugned Debt falls within the definition of "Operational Debt" as prescribed under Section 5(21) of The Code, it is defined that a claim is to be in respect of the provision of goods or in respect of providing services including employment. Within this definition ‘Debt’ is further defined as an "Operational Debt" where a Debt is in respect of the repayment of the dues arising under any Law for the time being in force and payable to the Central Government, any State Government or any Local Authority. Whether the impugned amount was in respect of the "repayment of the dues" is a subject matter before the Hon’ble High Court, yet to be adjudicated upon.

  Thus, if there is an existence of dispute, a Petition does not deserve to be admitted. Keeping brevity in mind and since the law laid down in all these precedence is unambiguous, as also the facts of the case have demonstrated the existence of a "dispute" prior to filing of the Petition, hence leads to one conclusion that the Petition deserves dismissal.

  Petition dismissed.

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• 2018 (7) TMI 2196 - PUNJAB & HARYANA HIGH COURT
  

  Grant of exemption u/s 10(23C)(vi) - delay in filing application - HELD THAT:- It was not disputed at the time of hearing that any delay in filing of application is fatal as opined by Hon'ble the Supreme Court in M/s Queen's Educational Society Versus Commissioner of Income Tax [2015 (3) TMI 619 - SUPREME COURT] whereby, Division Bench judgment of this Court in Sant Baba Sunder Singh Canadian Charitable Turst, Barnala Versus Central Board of Direct Taxes and others2010 (1) TMI 1286 - PUNJAB AND HARYANA HIGH COURT]was upheld.

  Keeping in view the aforesaid enunciation of law and applying the same in the facts of the present case, we find that the application filed by the petitioner was beyond the permissible time and any delay in filing thereof cannot be condoned.

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• 2018 (7) TMI 2195 - DELHI HIGH COURT
  

  Disqualification of Directors - disqualification for the reason that there was default in submitting returns which were statutorily required to be filed with the Registrar of Companies with regard to the affairs of the Company in question, for a continuous period of three financial years - Section 164(2)(a) of the Companies Act, 2013 - HELD THAT:- It cannot be denied that the issues raised in this writ petition require adjudication and are of grave importance so far as the working of the spirit, intendment and object of the Companies Act, 2013, more specifically the manner in which the respondents would operate Sections 164 and 248 of the enactment - Issue notice to the respondents. Mr. Ashim Sood, CGSC accepts notice on behalf of the respondents.

  Till the next date of hearing, there shall be a stay of the notices dated 6th September, 2017 and 12th September, 2017 whereby the petitioner was declared disqualified as Director under Section 164(2)(a) of the Companies Act, 2013. 13. The DIN numbers as well as digital signatures of the petitioner shall be forthwith revived.

  List on 24th July, 2018.

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• 2018 (7) TMI 2194 - ITAT AHMEDABAD
  

  Condonation of delay - delay of 1099 days and 906 days - HELD THAT:- As relying on [2018 (5) TMI 2074 - ITAT AHMEDABAD] we condone the delay in filing the appeal before the ld.CIT(A) and remit the issues to the file of the ld.CIT(A) for fresh adjudication.

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• 2018 (7) TMI 2193 - ITAT DELHI
  

  Exemption u/s 11 - charitable activity u/s 2(15) - HELD THAT:- We find that the assessee society is registered under Section 12A of the Act which the Ao has himself noted in his order, however, he has held that the society was hit by the proviso to Section 2(15) of the Act and, therefore, he denied the exemption u/s 11 - CIT(A) after going through the submission of the assessee, allowed the appeals of the assessee. We further find that the Tribunal in the case of assessee itself, in for assessment year 2011- 12, has already dismissed the appeal filed by the Revenue by following the orders in the case of assessee itself for assessment years 2009-10 and 2013-14.- Decided against revenue.

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• 2018 (7) TMI 2192 - ITAT SURAT
  

  Disallowance made on account of Special Long Term Finance Fund expenses claimed u/s. 36(1)(vii) - as per AO it is not clear whether the amount set aside by it constitute 20% of the profit derived from the eligible business computed under the head “Profit & Gains of Business and Profession” carried to such reserve account - HELD THAT:- As decided in own case [2013 (8) TMI 1117 - ITAT AHMEDABAD] AOP has wrongly concluded that the appellant did not prove that whatever the amount set aside by it, constitutes 20% of profits derived from the eligible business. All the relevant details are present in the P&L account only and AO himself could have computed the 20% of profit derived from the eligible business. The appellant has again furnished all the required details and worked out the profit 20% of profit thereof.

  Amount credited to special reserve which is 20% of the income from housing loans and SSI long term loans. This working has not been challenge by AO. It is therefore, held that the appellant has claimed expenses under this head as per provisions of section 36(1)(viii) which are allowable to him. In the result, appeal on this ground is allowed.

  Addition made on account of Reclassification of capital gain as business income - HELD THAT:- Since, the facts on the issue are identical as that of A.Y. 2009-10, therefore, this issue is set aside to the file of the learned CIT(A) for fresh adjudication in light of decision of S.C. in the case of Sardar Indra Singh [1953 (9) TMI 3 - SUPREME COURT]. This ground of revenue is allowed for statistical purpose.

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• 2018 (7) TMI 2191 - SUPREME COURT
  

  Benefits to the officers in service in North Eastern Region of the country - Special (Duty) Allowance - Appellant submits that the claim of Respondents for Special (Duty) Allowance was earlier rejected since, although they were working in the North East Region but their Headquarters were in Shivpuri/Gwalior - whether the benefit of the Office Memorandum is to be given with effect from 03.08.2005 only or the benefit of Special (Duty) Allowance is admissible after Office Memorandum dated 14.12.1983 was decided to be extended to CRPF personnel in the year 1987?

  HELD THAT:- The main Office Memorandum by which Special (Duty) Allowance was decided to be granted is dated 14.12.1983 - the genesis of grant of Special (Duty) Allowance was posting of person in North Eastern Region. The said benefits were extended to attract and retain the services of the competent officers serving in North Eastern Region.

  The policy of law as is clear from the original Government Order dated 14.12.1983, it is clear that Government came with the scheme of Special (Duty) Allowance with the object and purpose of encouraging, attracting and retaining the services of the officers in the North Eastern Region. To differentiate the employees in two categories i.e. (i) whose Headquarters are within North Eastern Region and (ii) whose Headquarters are outside the North Eastern Region, clearly indicate that classification is not founded on any intelligible differentia - Further the differentia has no rational relation to the object sought to be achieved. When the purpose is to encourage and retain the personnel in North Eastern Region to deny the benefit of Special (Duty) Allowance to those who although posted and serving in North Eastern Region have their Headquarter outside the North East Region does not have any rational nexus with object sought to be achieved.

  The classification as made in the Government Order dated 31.03.1987 does not pass the twin test. The Government having itself realised the error has corrected the same by Government Order dated 03.08.2005 permitted the Special (Duty) Allowance to all who are posted and serving in North East Region irrespective of the facts as whether their Headquarters are within the North Eastern Region or outside the North Eastern Region - When the earlier classification as envisaged by Government Order dated 31.03.1987 itself not been valid to deny the benefit to those who were entitled to the Special (Duty) Allowance on the ground that Government came with the clarification only on 03.08.2005 shall neither be equitable nor shall stand the test of equality before the law.

  There are no ground to interfere with the judgment of the High Court. In the result, the appeal is dismissed.

  Civil Appeal No. 5850 of 2011

  Whether the Respondents were entitled for Special (Duty) Allowances for the period during which they were posted in North Eastern Region from the date of their posting in the North Eastern Region or only with effect from 03.08.2005 when the Office Memorandum was issued by the Government of India which allowed the claim of CPF personnel?

  HELD THAT:- The purpose and object of granting the benefit as noticed above was to reward the persons who are posted in the North Eastern Region. The Tribunal has directed for granting the benefit to the Respondents for the period they have actually worked in the North Eastern Region. When the basis for granting Special (Duty) Allowance was posting in North Eastern Region, we fail to see that how the Respondents who were posted in the North Eastern Region would have been denied the Special (Duty) Allowance on the ground that their Headquarters are in Shivpuri/Gwalior. The benefit is attached to their posting in the North Eastern Region and denial on the ground that their Headquarters are in Shivpuri/Gwalior has no nexus with their claim. The Tribunal has allowed that claim which has been affirmed by the High Court.

  By Government Order dated 31.03.1987 Special (Duty) Allowance was extended to CRPF personnel posted and serving in North East Region who had their Headquarters also in that region. Obvious inference was that those personnel posted and serving in North East Region whose Headquarters were not in that region were not entitled to the benefit. Whether such classification for extending the benefit to one class of personnel who were both posted and serving there and had their Headquarter there and those personnel who were posted and serving there and having their Headquarter outside the North East Region is valid or not and passes the test of equality before law Under Article 14 is the question also needs to be considered.

  When the earlier classification as envisaged by Government Order dated 31.03.1987 itself not been valid to deny the benefit to those who were entitled to the Special (Duty) Allowance on the ground that Government came with the clarification only on 03.08.2005 shall neither be equitable nor shall stand the test of equality before the law - When the denial as noted did not pass the twin test of valid classification and was unconstitutional to deny the said benefit on the premise that Government corrected its error only on 03.08.2005, hence, with effect from 03.08.2005 only the benefit should be given does not appeal to reason.

  Appeal dismissed.

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• 2018 (7) TMI 2190 - CESTAT KOLKATA
  

  Levy of Penalty - delayed payment of service tax but the tax alongwith interest was paid before issuance of SCN - Applicability of Section 73(3) and Section 73(4) of Finance Act - HELD THAT:- The SCN was issued for levy of service tax under Head of “Business Auxiliary Service” along with interest and penalty. Since the entire service tax as well as interest was paid before issuance of the show-cause notice, the provision of Section 73(3) would be squarely applicable and hence, penalty was set aside. It was further held by the adjudicating authority that since the assessee was under a bonafide belief regarding taxability, the question of invocation of Section 73(4) of the Act, does not arise.

  There are no infirmity in the impugned order and the same is sustained - appeal dismissed - decided against Revenue.

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• 2018 (7) TMI 2189 - CESTAT MUMBAI
  

  Levy of Penalty on CHA u/s 114(3)(i) of Customs Act, 1962 - goods were misdeclared both in respect of description and value - appellant has abetted exporter in crime - HELD THAT:- Admittedly, the Commissioner’s order does not bring out that the appellant was having any knowledge that the goods were misdeclared both in respect of description and value. Even the Revenue’s officers allowed the consignment of M/s. A.J. Corporation and could not detect the misdescription. It was only subsequently when the investigations were taken against the other two exporters exporting identical goods and the samples were drawn and sent to chemical examiner, the fraud done by the exporter came to the notice of the Revenue officers.

  The CHA involvement in the fraudulent activities of the exporters, without there being any evidence, so as to impose penalty upon him cannot be upheld - Penalty set aside - appeal allowed - decided in favor of appellant.

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• 2018 (7) TMI 2188 - TELANGANA HIGH COURT
  

  Validity of admission of the documents - xerox copies of the documents or original documents of the documents - necessity of notice mandated by Section 66 of the Indian Evidence Act - failure of the respondent to seek permission of the court, for filing documents, at a alter stage of filing the plaint - power under Article 227 of the Constitution of India.

  Whether the xerox copies of the documents would amount to secondary evidence? - HELD THAT:- The Court observed that mere allowing the complainant to mark the photostat copy of the document does not mean accepting its contents to be true; the burden is on the complainant to prove the contents of the cheque; it is only after the complainant discharges his evidentiary burden, that the onus shifts to the accused; the accused can establish their defence by various other means which are legally permissible to them; so merely on the apprehension that the accused will lose the opportunity to send the document to FSL, the complainant cannot be restrained from establishing his case by producing the secondary evidence. The Court also considered the cases relied upon by the petitioners therein and distinguished them on facts, while dismissing the criminal petition - it can be understood that the Courts have been permitting admission of xerox copies into evidence, but the nature of the documents and the probative value of the documents and possibilities of tampering the documents have to be taken into consideration, before permitting xerox copies into evidence.

  Whether the original documents of the documents, sought to be admitted, are proved as lost? - HELD THAT:- The respondent filed his affidavit and affirms that the documents were lost while the office was being shifted and the case files were being transferred from one team to another - We are also inclined to accept the above approach adopted by this Court and consider the sworn affidavit of the respondent as sufficient to prove the fact of loss of originals.

  Whether the notice mandated by Section 66 of the Indian Evidence Act is necessary before admitting the documents? - HELD THAT:- The notice under Section 66 of the Act is necessary when the original is shown to be in possession of the person against whom the document is sought to be proved or is in possession of any person out of reach or not subject to the process of the Court or of any person who is legally bound to produce it. In order to seek dispensation of notice under Section 66 of the Act, the respondent should succeed in proving that the original document is in his own possession and is not in possession of a person against whom it is sought to be proved or is not in possession of any person out of reach or not subject to the process of the Court or any person legally bound to produce it. The documents, sought to be admitted in this case are of different categories - the notice under Section 66 of the Act is required to be given to the party in whose possession the original or the copies of the documents are, for production of such copies.

  Whether the failure of the respondent to seek permission of the court, for filing documents, at a alter stage of filing the plaint, would make the petition liable for dismissal? - HELD THAT:- The respondent, by this petition, only seeks permission to adduce secondary evidence of certain documents. Leave required under Order 7 Rule 14 of CPC can, if required, be obtained after the permission to adduce secondary evidence, is accorded. The impugned order, hence, need not be set aside on that count.

  Whether the power under Article 227 of the Constitution of India need to be exercised in this case? - HELD THAT:- This revision is under Article 227 of the Constitution of India. The maintainability of this petition is not disputed by both the counsel. But the scope of entertainment of such petition needs to be examined. There is no quarrel that the law is well settled that the power under Article 227 can be exercised only in exceptional cases i.e. to keep the Courts within the bounds of law, but not to merely correct the errors - Section 65 of the Act deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document.

  The xerox copies of the documents, the originals of which are shown to be with the respondent and which are shown to have been lost, can be received in evidence. Both the parties agree upon the documents at Sl. Nos. 1, 3, 5 and 8 to 12, to be the documents, the originals of which would be with the respondent. Hence, the order of the Court below to the extent of admitting those documents can be sustained - the said documents cannot be permitted to be taken in evidence without following the procedure prescribed under Section 65(a) of the Act. The documents at Sl. Nos. 20 and 32 are the tables prepared by the petitioner and the same cannot be considered as documents also. Hence, they cannot be admitted in evidence.

  The civil revision petition is allowed in part.

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