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Showing 141 to 160 of 1247 Records
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2012 (9) TMI 1118
Application of the petitioners for selling the mortgaged property under Section 13 (13) of SARFAESI Act - No writ would lie against a private Bank. However, where the Bank is a Scheduled Bank under Reserve Bank of India Act, 1934 and is governed by the provisions of Banking Regulation Act, 1949, it shall be amenable to writ jurisdiction of this Court where the Scheduled Bank takes recourse to the provisions of SARFAESI Act.
In the present facts and circumstances after condoning the delay in depositing the amount, while allowing the writ petition, it is directed that in case, the petitioners deposit another sum of ₹ 50 lakhs in terms of the statement made by their counsel on 25.7.2012 within two months of receipt of a certified copy of this order, the OTS shall be implemented. It is further directed that the drafts deposited in pursuance to the order of this Court dated 10.2.2012 shall be returned to the petitioners, who after getting them revalidated, shall deposit the same with the bank within the aforesaid period for getting the OTS implemented.
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2012 (9) TMI 1117
The High Court of Kerala disposed of the writ petition stating that the issue is covered by a previous judgment in W.P.(C) No. 4718 of 2004. The directions in the previous judgment will govern this case as well.
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2012 (9) TMI 1116
The Supreme Court dismissed the special leave petition as withdrawn after the petitioner's counsel stated that they have instructions not to press the petition.
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2012 (9) TMI 1115
The Supreme Court dismissed the special leave petition as no ground was found for interference. Delay was condoned. (2012 (9) TMI 1115 - SC)
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2012 (9) TMI 1114
Violation of SEBI provisions - deficiencies with regard to manipulation of records and in the functioning of the appellant - investigation - Held that:- The purpose of carrying out inspection is not punitive and the object is to make the intermediary comply with the procedural requirements in regard to the maintenance of records. We have also observed that every minor discrepancy/irregularity found during the course of inspection is not culpable and the object of the inspection could well be achieved by pointing out the irregularities/deficiencies to the intermediary at the time of inspection and making it compliant. As per the observations made by the adjudicating officer himself, the violations committed by the appellant are mostly technical in nature; some of them are solitary instances and for others the appellant has mostly taken/initiated corrective measures. In view of this, we are of the view that the adjudicating officer was not justified in taking punitive action.
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2012 (9) TMI 1113
Unexplained cash credit under Section 68 - ITAT deleted the addition - Held that:- There cannot be any doubt about the transaction as has been observed by the Assessing Officer. The transactions were as per norms under controlled by the Securities Transaction Tax, brokerage service tax and cess, which were already paid. They were complied with. All the transactions were through bank. There is no iota of evidence over the above transactions as it were through d-mat format. - Decided against revenue
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2012 (9) TMI 1112
Power pf High court - power to quash the criminal proceeding or complaint or F.I.R - Held that:- The power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society.
High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.
Decisions of this Court in B.S. Joshi and others v. State of Haryana and another [2003 (3) TMI 721 - SUPREME COURT], - Nikhil Merchant Versus Central Bureau of Investigation and Anr. [2008 (8) TMI 966 - SUPREME COURT OF INDIA] And Manoj Sharma Versus State and Ors. [2008 (10) TMI 690 - SUPREME COURT OF INDIA] were not correctly decided. We answer the reference accordingly.
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2012 (9) TMI 1111
Issues Involved:
1. Jurisdiction of Arbitrator to adjudicate claims.
2. Entitlement to the sum of Rs. 10,17,461/-.
3. Entitlement to the sum of Rs. 12.50 lakhs.
4. Grant of interest on awarded amounts.
Summary:
1. Jurisdiction of Arbitrator to adjudicate claims:
The appellants contended that the claims for unpaid amounts and security deposit were subject to an earlier arbitration and that the second arbitration was without authority of law. The Supreme Court held that the specific claims of Rs. 10,17,461/- and Rs. 12.50 lakhs were not barred by the earlier arbitration. The arbitrators had recorded that both parties agreed to adjudicate these disputes, thus validating the jurisdiction of the arbitrators.
2. Entitlement to the sum of Rs. 10,17,461/-:
The award passed on 29th January 1996, held the respondent-contractor entitled to Rs. 10,17,461/- with interest. The learned District Judge upheld this claim, and the High Court maintained it. The Supreme Court found no reason to interfere with this part of the award.
3. Entitlement to the sum of Rs. 12.50 lakhs:
The arbitrators did not adjudicate this claim, stating it was beyond the scope of the arbitration and should be resolved amicably or through a civil suit. The learned District Judge erroneously decreed this amount, which the High Court reversed, remanding the issue to an arbitrator appointed by it. The Supreme Court held that the High Court should have left the determination of this claim to the agreed procedure between the parties, not appointing an arbitrator itself.
4. Grant of interest on awarded amounts:
The appellants argued that Clauses 1.2.14 and 1.2.15 of the contract barred the grant of interest. The Supreme Court agreed, stating that the award of pendente lite interest was not justified due to the express bar in the contract. However, the grant of post-award interest from the date of the award till the date of the decree or payment was upheld at a rate of 12% per annum, as determined in the arbitration.
Conclusion:
The Supreme Court modified the High Court's order, upholding the award of Rs. 10,17,461/- without pendente lite interest but with post-award interest at 12% per annum. The claim of Rs. 12.50 lakhs was left to be determined according to the agreed procedure between the parties.
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2012 (9) TMI 1110
Primary School - Advertisement inviting application for the posts of an Assistant Teacher - Appointment was in contravention of the statutory provisions Bombay Primary Education (Gujarat Amendment) Act, 1986 (Act) - Termination of Service - deprived of legitimate dues - Education and particularly that of elementary/basic education has to be qualitative and for that the trained teachers are required. The Legislature in its wisdom after consultation with the expert body fixes the eligibility for a particular discipline taught in a school. Thus, the eligibility so fixed require very strict compliance and any appointment made in contravention thereof must be held to be void. However, the Division Bench of the High Court has given full details of the teachers who had been appointed alongwith the respondent No.1 in pursuance of the same advertisement and possessing the same qualification of B.Sc.;B.Ed./B.A.;B.Ed.
A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim ‘allegans suam turpitudinem non est audiendus'. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong.
HELD THAT:- Apex court do not warrant review of the orders passed by the High Court as well as by the Tribunal. Appellant has insisted that this Court should not permit an illegality to perpetrate as the respondent No.1 had been appointed illegally and he did not possess the eligibility for the post. The Primary School children have to be taught by qualified persons and this Court has consistently held that B.Sc.; B.Ed./B.A.;B.Ed. is not equivalent to PTC which is the required qualification in clause (6) of Schedule F attached to the Act. the instant case could be decided in the light of the aforesaid backdrop. It is a settled legal proposition that the court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. It is for the reason that in such an eventuality the illegality would perpetuate and it would put a premium to the undeserving party/person. Thus, it is evident that the appellant has acted with malice alongwith respondent and held that it was not merely a case of discrimination rather it is a clear case of victimisation of respondent No.1 by School Management for raising his voice against exploitation.
The appeal lacks merit and is, accordingly, dismissed.
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2012 (9) TMI 1109
Issues involved: Appeal by Revenue against CIT(A) order related to assessment year 2007-08.
Grounds of appeal:
1. CIT(A) deletion of addition on undisclosed income for flat purchase based on Secretary's statement u/s 132(4).
2. CIT(A) deletion of addition based on non-jurisdictional ITAT decision.
3. CIT(A) deletion of addition based on challenged ITAT decision.
4. CIT(A) deletion of addition based on society's utilization of funds and profit earned.
Facts:
- Dream Land Cooperative Housing Society sold flats with payment details.
- AO believed income escaped assessment due to cash payment for flat.
- AO added cash payment amount to assessee's income.
- CIT(A) deleted addition citing lack of conclusive evidence.
- Only seized document was a computerized sheet from a third party.
- No direct evidence linking cash payment to assessee.
- Sale deed details and seized document discrepancies noted.
- CIT(A) emphasized lack of conclusive link to cash payment.
Decision:
- CIT(A) deleted addition as presumption from seized document not conclusive.
- ITAT concurred with CIT(A) that no direct evidence linked cash payment to assessee.
- AO's case solely based on seized document and third party statement.
- CIT(A) decision upheld due to lack of conclusive evidence.
- Revenue's appeal dismissed, no infirmity found in CIT(A) order.
Counter Objection (C.O.):
- Assessee's C.O. allowed based on Amritsar Bench decision regarding reassessment legality.
- Reassessment quashed as per section 153C, notice u/s 148 deemed illegal.
- Reassessment order rightly quashed by CIT(A) following legal procedure.
- Assessee's C.O. allowed, Revenue's appeal dismissed.
Conclusion:
- Revenue's appeal dismissed, Assessee's C.O. allowed.
- Order pronounced on 25th September, 2012.
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2012 (9) TMI 1108
GML Act [Gujarat Money-Lenders Act, 2011] is ultra vires the Constitution of India for legislative incompetence of the State Legislature only to the extent it seeks to have control over the NBFCs registered under the RBI Act in the matter of carrying on their business under Chapter IIIB of the RBI Act.
The State Respondent is restrained from applying the provisions of the GML Act against the petitioners while carrying on their activities governed under Chapter IIIB of the RBI Act.
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2012 (9) TMI 1107
Issues Involved:
1. Limitation on Counter Claims
2. Contractual Terms and Excess Material Consumption
3. Modification of the Arbitral Award
Issue 1: Limitation on Counter Claims
The petitioner challenged the arbitral award on the grounds that the counter claims of the respondent were barred by limitation. The petitioner argued that the respondent's demand for material accounting/reconciliation dated 06.12.1999 should have triggered the limitation period, thus requiring the respondent to file its counter claims within three years. The counter claims were filed in June 2004, beyond the prescribed period. The court, however, held that limitation is a mixed question of fact and law and must be raised at the earliest before the Arbitral Tribunal. Since the petitioner did not raise this issue before the tribunal, it could not be entertained for the first time in proceedings u/s 34 of the Act. The court cited several judgments to support the view that the plea of limitation must be raised during the arbitral proceedings and not for the first time during the challenge to the award.
Issue 2: Contractual Terms and Excess Material Consumption
The petitioner contended that the amount awarded for the respondent's counter claim regarding wastage and excess consumption of materials was in violation of Clause 8.3.1(e) of the contract, which limits unaccounted material to 10% of the value of the security deposit unless permitted in writing by the Engineer In-charge. The court found that the Arbitral Tribunal had interpreted the clause correctly and noted that the petitioner was not allowed to get undue enrichment. The tribunal's finding that there was excess consumption of materials was based on the evidence and was not disputed. The court upheld the tribunal's decision, stating that the interpretation of the contractual terms was logical and plausible.
Issue 3: Modification of the Arbitral Award
The petitioner also challenged the modification of the award, arguing that the amount awarded under Claim No. 2 was in addition to the amount already paid. The court found that the petitioner had admitted to receiving the amount way back in December 1997 and could not now claim otherwise. The court held that the petitioner could not take inconsistent stands and dismissed this objection as frivolous.
Conclusion
The court dismissed the petitioner's objections, upheld the arbitral award, and imposed costs of Rs. 30,000 on the petitioner. The court emphasized that issues of limitation and contractual interpretation must be raised at the earliest during arbitral proceedings and cannot be introduced for the first time during a challenge to the award.
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2012 (9) TMI 1106
Issues Involved:
1. Deletion of disallowance towards VSAT and Transaction charges u/s 40(a)(ia).
2. Deletion of addition made u/s 14A r.w. Rule 8D.
Summary:
Issue 1: Deletion of Disallowance towards VSAT and Transaction Charges u/s 40(a)(ia)
The revenue challenged the deletion of disallowance of Rs. 1,56,850 towards VSAT charges and Rs. 8,03,564 towards Transaction charges made u/s 40(a)(ia) by the CIT(A), arguing that these were composite charges for professional and technical services rendered by the stock exchange, and the assessee failed to deduct TDS. The CIT(A) deleted these additions based on the Tribunal's earlier decision in the assessee's own case, which followed the ITAT's decision in M/s. Kotak Securities Ltd. vs. ACIT, holding that these payments were not for rendering technical services, hence TDS was not required. However, the Hon'ble Bombay High Court in CIT vs. Kotak Securities Ltd., 340 ITR 333 (Bom) later held that transaction charges constitute "fee for technical services" and are covered u/s 194J. The Tribunal, considering the decision in M/s. J.G. Shah Financial Consultants P. Ltd., restored the matter to the AO to verify the assessee's stand and pass orders in light of the guidelines laid down by the Bombay High Court. The deletion of VSAT charges was upheld as they were merely reimbursements to the stock exchange without any income element, thus no TDS was required.
Issue 2: Deletion of Addition u/s 14A r.w. Rule 8D
The revenue contested the deletion of Rs. 90,020 made u/s 14A r.w. Rule 8D by the CIT(A). The assessee did not press this ground, leading to the revenue's appeal being allowed on this issue, and the corresponding ground in the assessee's cross objection was dismissed.
Conclusion:
The appeal filed by the revenue and the cross objection filed by the assessee were partly allowed. The deletion of VSAT charges was upheld, while the issue of transaction charges was remanded to the AO for verification. The addition u/s 14A was reinstated as the assessee did not contest it. The order was pronounced in the open court on September 5, 2012.
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2012 (9) TMI 1105
Agricultural income qualifying for exemption under section 10(1) - Held that:- The authorities belong indeed erred in law and on facts of this case in holding that the impugned income is not agricultural income. We, therefore, direct the Assessing Officer to treat the said income as agricultural income under section 2 (1A)(b)(i) of the Act. As a corollary to this direction, the Assessing Officer shall also exclude the said income from the total income under section 10(1) of the Act.
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2012 (9) TMI 1104
Issues involved: Dispute regarding confirmation of Assessing Officer's action in rejection of books and estimation of profits.
Assessment Proceedings:
During assessment, incomplete information provided, no stock register maintained, lack of muster-rolls and Attendance Register with incomplete details. Purchases made without complete vouchers. AO rejected books and applied NP Rate of 12% based on a High Court decision.
Submission before CIT(A):
Assessee maintained books subject to audit, difficulty in maintaining stock register due to nature of work. Claimed to have near-complete purchase vouchers. Explanation on absence of complete muster-rolls and work in progress record. Cited acceptance of lower profit in previous years.
CIT(A) Decision:
Disagreed with submissions, emphasized importance of correct valuation of closing stock. Found lack of address in labour attendance register affecting authenticity. Distinguished Tribunal's decision in earlier year due to complete books and bills produced. Confirmed income estimation at 12%.
Appellant's Argument:
Claimed availability of 83-90% bills for purchases, requested remittance or reasonable NP Rate estimation. Argued against 12% rate citing nature of road construction business.
Final Decision:
After hearing both parties, remand deemed unnecessary due to lack of verifiable vouchers and incomplete labour attendance details. Noted acceptance of lower profit in past without enquiry. Set aside CIT(A) order, directed AO to apply NP Rate of 6% considering nature of road construction business.
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2012 (9) TMI 1103
Denial of exemption under Section 10(20A) - Held that:- In the instant case, the object and function of incorporating the appellant-company is totally for different purpose. The appellant was incorporated pursuant to the resolution of the Government of Karnataka, but not constituted under any law. It was incorporated for the purpose of achieving certain objects and cannot be equated with the authority constituted in India by or under any law enacted. Looking at the object of the appellant-company it cannot be treated as an authority under article 12 of the Constitution of India. Since they are not discharging the functions of housing accommodation and for the purpose of planning and development of the Cities, towns and villages, the appellant does not fall under the purview of Section 10(20A) of the Act. Hence, they are not entitled to claim exemption. - Decided against assessee.
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2012 (9) TMI 1102
Issues Involved:
1. Disallowance of Depreciation on Windmills
2. Application of Explanation 3 to Section 43(1) of the Income Tax Act
3. Determination of Actual Cost of Assets
Summary:
1. Disallowance of Depreciation on Windmills
The assessee, engaged in the business of transportation of gases and chemicals and generation and sale of wind power, claimed depreciation on three windmills purchased from Vestas RRB India Ltd. The Assessing Officer (AO) doubted the credibility of these transactions, particularly the windmill purchased on 30-03-2004, suspecting it was not possible to install and commission it before the end of the financial year. The AO confronted the assessee, who explained that the windmills were old and in working condition, previously owned by Snowcem India Ltd. and generating power before 31-03-2004. However, the AO noted discrepancies, including the resale of windmills not being mentioned in the sale bill and Snowcem already claiming depreciation on these windmills. The AO applied Explanation 3 to Section 43(1) and allowed depreciation based on the Written Down Value (WDV) in Snowcem's books.
2. Application of Explanation 3 to Section 43(1) of the Income Tax Act
The AO argued that the main purpose of the transaction was to reduce tax liability by claiming depreciation on an enhanced cost. The AO fulfilled the conditions for applying Explanation 3 to Section 43(1), noting that the windmills were previously used by Snowcem and the transaction seemed designed to reduce tax liability. The AO determined the actual cost based on the WDV in Snowcem's books, rejecting the assessee's plea that the transaction was genuine. The AO relied on judicial precedents to support this application.
3. Determination of Actual Cost of Assets
The CIT(A) upheld the AO's decision, noting that the determination of actual cost should ensure appropriateness in the context of the facts and circumstances. The CIT(A) observed that the windmills were still in Snowcem's name in the records of the Maharashtra State Electricity Board and that the transaction was routed through Vestas to obscure the WDV in Snowcem's books. The CIT(A) also noted that Snowcem had shown short-term capital gains but set them off against losses, resulting in no tax liability. The CIT(A) dismissed the assessee's arguments and upheld the AO's application of Explanation 3 to Section 43(1).
On appeal, the Tribunal considered the assessee's submissions, including the genuineness of the transaction, the unrelated nature of the parties, and the reasonableness of the cost paid for the windmills. The Tribunal found merit in the assessee's arguments, noting that the AO and CIT(A) did not determine the fair market value of the windmills and merely adopted the WDV in Snowcem's books. The Tribunal held that the actual cost paid by the assessee should be considered for allowing depreciation, relying on judicial precedents that emphasize the need to determine actual cost based on market conditions and the real worth of the assets.
Conclusion
The Tribunal allowed the appeal, directing that the actual cost paid by the assessee to Vestas RRB India Ltd. be considered for depreciation purposes, rejecting the AO's and CIT(A)'s application of Explanation 3 to Section 43(1) based solely on the WDV in Snowcem's books.
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2012 (9) TMI 1101
Issues involved: Assessment for the assessment year 1998-99, rectification of assessment under Section 154, jurisdiction of income tax authorities, claim for arrears under Fifth Pay Commission notification.
Assessment for the assessment year 1998-99: The assessee failed to claim arrears payable under a notification related to the Fifth Pay Commission in the return filed for the assessment year 1998-99, leading to the assessment being finalized without the deduction. The Assessing Officer declined rectification, stating there was no rectifiable error, a decision upheld by the CIT(Appeals) and the ITAT.
Rectification under Section 154: The assessee applied for rectification of the assessment, but the authorities held that there was no rectifiable error. The High Court observed that the assessee pursued the wrong remedy by seeking rectification, and failed to mention the relevant notification in the return filed. The Court suggested that the assessee should approach the Commissioner of Income Tax under Section 264 of the Act for the original assessment order framed in March 2001.
Jurisdiction of income tax authorities: The High Court concluded that the question of law regarding the jurisdiction of income tax authorities under Section 154 did not arise in this case. The Court noted that the assessee's failure to disclose the material fact of the notification and the pursuit of wrong remedies led to the current situation, where the assessee was advised to approach the Commissioner of Income Tax under Section 264 for a revision application.
Claim for arrears under Fifth Pay Commission notification: The assessee overlooked claiming arrears payable under a notification related to the Fifth Pay Commission in the return filed for the assessment year 1998-99. This omission, along with the pursuit of incorrect remedies, resulted in the need for the assessee to seek redress through a revision application under Section 264 of the Act. The High Court granted liberty to file an application under Section 264 within a month and disposed of the appeal accordingly.
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2012 (9) TMI 1100
Deduction u/s 80-IB(10) - Held that:- The stair case definitely comes under the common pool used by all the inhabitants, therefore, it cannot be included in the built up area. Even otherwise the Assessing Officer noted from the details submitted by the assessee that three types of flats were sold by the assessee and in the type “A” category the area is 1386.03 sq. ft., whereas in type “B” the total area is 1122.48 sq. ft., and in type “C” flat, the total area is 811.84 sq. ft. per flat. These details were submitted by the assessee vide letter dated 12-12-2008 before the ld. CIT(A) and earlier before the Assessing Officer. Such details have been reproduced at page 4 of the impugned order. There is a factual recording that stair case is common area between the two adjacent flats measuring 8.172 sq. mts. and if this area is reduced from the total area of the unit then certainly it comes below the prescribed limit of 1500 sq. ft.
This being the first year of claiming deduction u/s 80-IB(10) of the Act, wherein the Assessing Officer himself noted that assessee’s 48 units of Type-A flats; 90 units of Type-B & Type-C units were under construction, the Assessing Officer himself computed the built up area by including the stair case area, therefore, it exceeded the prescribed limit. Such factual finding recorded in the impugned order was not controverted by the Revenue by bringing any positive material on record. In view of these facts we are of the considered opinion that the assessee is clearly entitled for such deduction. Therefore, we find no justification to interfere with the conclusion drawn in the impugned order, which is affirmed.
Apportionment of expenses in the ratio of turn over to different units - no part of the head office expenses pertaining to management were debited to Krishna Lok Unit - Held that:- There is a categorical finding that the assessee company has not taken any loan secured or unsecured for Krishna Lok and the ledger print out of the current account maintained with Oriental Bank of Commerce and Punjab National Bank were furnished during assessment proceedings which clearly indicates that the total receipt from Krishna Lok project sale is utilized for the purpose of meeting expenses of Krishna Lok and none of the loans from Head Office were transferred to Krishna Lok. There is a further finding that there is no question of transfer any financial expenses to Krishna Lok and further the administrative and other expenses which include salary, bonus other perquisites, employees welfare and the rates and taxes, general expenses, newspaper and periodicals, legal and professional expenses, postage & telephone charges, power fuel and water charges, printing & stationery, vehicle repair & maintenance expenses etc. are incurred separately and debited separately to Krishna Lok restaurant and other projects. Such expenses are business specific and not commonly incurred. On careful scrutiny of allocated expenses, we find that the expenses in the nature of “audit fee” and “director remuneration” are for the assessee as a whole and not specific to the business. Consequently, the expenses of ₹ 33,660/- and ₹ 58,630 respectively are allocated to Krishna Project, therefore, addition to the extent of ₹ 2,92,290/- is sustained. The deletion of addition of balance expenses of ₹ 57,66,129/- is upheld. This ground is, therefore, allowed partly.
Extra depreciation on computer peripherals/ accessories - Held that:- The assessee claimed ₹ 16,500/- to fixed assets in the block of computers and computer peripherals which as per the assessee are depreciable @ 60%, which was denied by the Assessing Officer . We find that the ld. CIT(A) considered the issue in a justified manner and deleted the addition of ₹ 7425/-. We find no justification to interfere with the same as nothing contrary was brought to our notice
disallowance of deduction u/s 80-IB(10) - A.Y. 2007-08 - Held that:- As per sub-section (10) of Sec. 80-IB, the housing project which were approved before 31st day of March, 2008, the benefit will be hundred per cent subject to fulfillment of certain conditions. However, this condition was substituted by the Finance (No.2) Act of 2009 with effect from 1-4-2009, which has been further explained by sub-clause (ii) to the Explanation regarding completion certificate. However, since the approval was granted to the assessee on 1-4-2005, therefore, the assessee is not expected to fulfill the conditions which were not on the statute when such approval was granted to the assessee. Therefore, the appeal of the assessee deserves to be allowed.
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2012 (9) TMI 1099
Addition u/s. 68 - treating the Short Term Capital Gain as unexplained cash credit - Held that:- Since the shares were sold after 1-4-2005, the transactions were not under the broker's code. As regards service-tax and stamp charges the contract note of the broker clearly mentioned that the brokerage was inclusive of service tax etc. In the case of the selling broker the Service tax Securities Transaction tax and Education Cess were separately mentioned. As regards the point raised by the Assessing Officer that there was absence of broker-client agreement, the Tribunal accepted the submission of the assessee that the genuineness of the transactions was already proved by the contract notes for sale and purchase, the bank statement of the broker, the Demat Account showing transfer in and out of shares, as also abstract of transactions furnished by the CSE. The Tribunal, after appreciating the evidence on record, concurred with the findings recorded by the Commissioner (Appeals) that the assessee had furnished complete details which were not found false or bogus by the Assessing Officer and that it was only on suspicion that the Assessing Officer had treated the capital gain declared by the assessee as unexplained cash credit under section 68 of the Act. In the light of the aforesaid findings of fact recorded by it, the Tribunal dismissed the appeal of the revenue.
In the light of the above findings of fact recorded by the Tribunal, it is not possible to state that the view adopted by the Tribunal is, in any manner, unreasonable or perverse.
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9911796707
