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Showing 141 to 160 of 1664 Records
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2022 (9) TMI 1526
Deduction u/s. 80P(2)(d) - interest income from investment in Co-operative bank - HELD THAT:- An identical issue had been considered in the case of Varathappam Palayam Primary Agricultural Co-op. Credit Society [2022 (7) TMI 113 - ITAT CHENNAI] and by following decision of The Salem Agricultural Producers Co-operative Marketing Society Ltd [2016 (9) TMI 699 - MADRAS HIGH COURT] held that interest earned on deposits with District Central Cooperative Banks is assessable under the head ‘business income’ of the co-operative society and consequently, for said interest benefit of section 80P(2)(d) is available.
Thus assessee is entitled for deduction towards interest earned from Coimbatore District Central Co-operative Bank u/s. 80P(2)(d) - Decided in favour of assessee.
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2022 (9) TMI 1525
Revision u/s 263 - Inadequate or no enquiry - Assessment of trust - taxable income in terms of section 11(1) - as per CIT-E amount collected as development fees from its students had been directly carried to the balance sheet under the nomenclature “Development fund” instead of routed through the income and expenditure account - HELD THAT:- In this case, the assessee has complied by producing all the evidences as called for insofar as the compliance report which is a system generated report shows that the compliance is in full. Thus, this cannot be said that there is “lack of enquiry” by the AO much less “inadequate enquiry” and far less “no enquiry”.
In this case, the assessee has complied by producing all the evidences as called for insofar as the compliance report which is a system generated report shows that the compliance is in full. Thus, this cannot be said that there is “lack of enquiry” by the AO much less “inadequate enquiry” and far less “no enquiry”.
A perusal of the order passed u/s.263 of the Act shows that the ld. CIT(E) has taken the total revenue earned and amount is inclusive as development fees collected by the assessee from the students. When doing the computation, the ld. CIT(E) has granted 15% accumulation u/s.11(1) of the Act, he has not taken into consideration the capital expenditure which is an application.
If this capital expenditure, which is application of income of Rs. 258 crores, is taken into consideration, the taxable income as computed by the ld. CIT(E) would automatically go into a loss.
A perusal of the order of the ld. CIT(E) shows that after receiving this reply of the assessee no further verification much less an enquiry has been done by the CIT(E) to even make an attempt to show that the calculation as shown by the assessee is erroneous in any manner whatsoever. This is a minimum expectation.
After the receipt of the reply of the assessee, the order has been passed after more than two months and there is nothing shown to show that the calculation as done by the assessee is erroneous. It is also not being rejected by the ld. CIT(E) but has just proceeded to hold that the assessment order is erroneous and prejudicial to the interest of revenue and set aside the same. This is not permissible.
In the present case, clearly no enquiry has been done by the ld. CIT(E). The Hon’ble Jurisdictional High Court of Orissa []2022 (4) TMI 1395 - ORISSA HIGH COURT further goes on to hold that “the purpose of such an enquiry would be to arrive at a subjective view that the order of the AO was erroneous insofar as it is prejudicial to the interest of Revenue”. Here, the ld. CIT(E) has done nothing to arrive at the subjective view that the order of the AO was erroneous insofar as it is prejudicial to the interest of revenue. In fact, this is a case where there is “no enquiry” by the ld. CIT(E).
Also the fact that the ld. CIT(E) has also made a calculation which attempts to show escapement of income u/s.11 of the Act which is taxable, by excluding the application of income which is permissible u/s.11(1) of the Act, is nothing but a jugglery in arithmetic. This is not a case where there is incorrect application of law. This being so, we are of the view that the principle of law laid down in the case of Orissa State Police Housing & Welfare Corporation Ltd. [2022 (4) TMI 1395 - ORISSA HIGH COURT] is squarely applicable in the case of present assessee, insofar as there is no enquiry done by the ld. CIT(E) after receipt of the reply filed by the assessee.
This view of ours also support by the decision of the coordinate bench of the Tribunal in the case of Saroj Kumar Mishra [2022 (8) TMI 1456 - ITAT CUTTACK] - order passed by the ld. CIT(E) is unsustainable and consequently, the same stands quashed. Decided in favour of assessee.
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2022 (9) TMI 1524
Rectification of mistake - Non-adjudication of ground vis-à-vis exclusion of Eclerx Services Limited (Eclerx) from the set of comparable companies - HELD THAT:- Tribunal while passing the order [2018 (3) TMI 2013 - ITAT DELHI] inadvertently omitted to adjudicate one of the comparable companies, namely, Eclerx Services Limited.
Non-adjudication of ground No. 3.5 vis-à-vis Eclerx Services Limited while passing the order by the Tribunal is a mistake apparent from record. Thus, we recall the order of the Tribunal for the limited purpose of adjudicating one of the comparables, namely, Eclerx Services Limited, which is part of ground No. 3.5 for adjudication by the Tribunal.
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2022 (9) TMI 1523
Dismissal of application invoking Section 70 of the Insolvency and Bankruptcy Code, 2016 - dismissed only on the ground that the Tribunal lacks jurisdiction to entertain such an application - HELD THAT:- Reliance placed in the matter of 'Vivek Prakash (Suspended Director & MD) vs. Dinesh Kr. Gupta, Liquidator of M/s. Jarvis Infratech Pvt. Ltd. & Anr.' [2022 (2) TMI 906 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] in which it has been held that the RP is not empowered to initiate the prosecution but at the same time, it has been held that in order to initiate prosecution under Section 70 the complaint has to be filed by the Insolvency and Bankruptcy Board of India (IBBI) or Central Government or person authorized by the Central Government.
There are no error in the order of the Ld. Tribunal, therefore, the present Appeal is hereby dismissed.
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2022 (9) TMI 1522
Grant of extension of interim bail to the respondent for a period of six weeks - HELD THAT:- Issue notice, returnable on 10.10.2022. Till then, the interim protection granted by the High Court shall continue.
It is made clear that the pendency of the present special leave petition or impugned order of the High Court would not come in the way of considering the application of the petitioner for grant of regular bail.
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2022 (9) TMI 1521
Grant of extension of interim bail to the respondent for a period of six weeks - interim bail sought on medical grounds - HELD THAT:- A bare perusal of the medical report reveals that the medical ailments suffered by the respondent duly stand noticed by the Medical Board. After noticing the details of the ailments suffered by the respondent, it has been categorically observed: “examination of the patient revealed stable vital parameters (BP-140/80 mmHg: Pulse rate 78/min: SpO 2-96% in room air) and physical examination of cardiovascular and respiratory systems were unremarkable. The Board members are of the opinion that at the given moment, patient’s vitals are stable and he is doing well with the current treatment being given to him.”
As on 22.08.2022, it could not have been said that the treatment of the respondent was not feasible in any Government Hospital, in custody. Neither the condition of the respondent required immediate hospitalization. As such, the observations made by the learned Trial Court in the impugned order do not appear to be in the correct perspective - However, since it has now been informed by the learned senior counsel for the respondent that the respondent has again been hospitalized on 26.09.2022, it may not be appropriate to deprive the respondent of the benefit of interim bail till 30.09.2022 which has been granted by the learned Trial Court.
The respondent is directed to surrender before the Superintendent Jail on the date of expiry of interim bail granted by the learned Trial Court. However, in case it is assessed that the respondent cannot be discharged due to his admission in the hospital on account of any aggravated medical condition or if the circumstances so require, the respondent shall continue to be admitted in the hospital in judicial custody till the time his condition improves. The same shall be further subject to evaluation of the medical condition of the respondent by the same Medical Board from Dr.RML Hospital within a period of one week from 30.09.2022 - List on 07.10.2022.
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2022 (9) TMI 1520
Reduction of the equity shareholding of the Respondent no. 2 - Embezzling, siphoning-off and mis-appropriation of loan amount - non-payment of salaries - falsification of accounts - HELD THAT:- The parties are present in Court agree to abide by the terms and conditions set forth in the affidavit as also the Settlement dated 06.07.2022, reduced in writing between the parties, though not filed before this Court, because of confidentiality.
There is no impediment in quashing of the FIR as it would never entail in conviction of petitioners.
The petition is allowed subject to providing the original Resolution as aforesaid to respondent No.2.
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2022 (9) TMI 1519
TDS u/s 194H - disallowances u/s. 40 (a) (ia) - 15% discount given by the assessee to its advertising agencies - Non deduction of TDS - HELD THAT:- What is to be seen at the time of evaluation of applicability of section 194H is the relation of payer and payee and the character or nature business of assessee does not create any distinction in this regard.
As in the case of Jagran Prakashan [2012 (5) TMI 488 - ALLAHABAD HIGH COURT] categorically held that when there is no agreement between the payer and payee advertising agencies and the advertising agency has never been appointed as an agent of payer assessee then the commission paid to the advertising agencies cannot be characterize as an payment from principal to principal basis and in such a situation the provisions of section 194H of the Act are not applicable to the such discount / commission and the assessee is not under obligation deduct TDS thereon.
CIT (A) was right in relying on CBDT Circular No.06.2016 - Undisputedly the AO never made any disallowance or addition on this issue of payment commissioner/ discount to the advertising agencies neither from earlier other nor from subsequent assessment year and only made disallowance in A.Y.2009-10.
Principal of consistency always followed by the tax authorities, in the identical and similar facts and circumstances. AO has not mentioned any reason as to why he proceeded to take a deviated view from preceding assessment years contrary to rule of consistency, in this particular A.Y.2009-10 under identical facts and circumstances. Decided in favour of assessee.
Disallowance u/s 14A r.w.r. 8D - CIT(A) restricted addition - HELD THAT:- AO has invoked provisions of section 14A of the Act r.w.r 8D (iii) of the Rules by taking 0.5% of average of investments of assessee in the opening and closing of the year which has been reduced by the CIT(A) to the extent of average of investment out of which the assessee has earned exempt income during the relevant financial period. This conclusion of Ld. First appellate authority is in accordance with the order of ACIT Vs. Vireet Investment (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI]
No valid reason or any other factual dissimilarity or legal position, which may lead us to take a different view. Therefore, findings of Ld. CIT(A) on this issue are also confirmed. Decided against revenue.
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2022 (9) TMI 1518
Assessment proceedings u/s 153C(1) - determining the six assessment years - jurisdiction of the searched group and the seized materials were with the AO and the assessee’s jurisdiction has been transferred in to the AO’s jurisdiction vide order u/s 127 - Tribunal has noted that the AO received the materials from the AO of the searched person on 2nd August, 2016 - HELD THAT:- Tribunal held that the assessments for the years 2009-10 and 2010- 11 could not have been subjected to assessment proceedings under Section 153C(1) of the Act with regard to as to how this year period should be calculated. Learned Tribunal rightly took note of the decision in the case of SSP Aviation Ltd.[2012 (4) TMI 335 - DELHI HIGH COURT] wherein held in the case of the other person, which in the present case is the petitioner herein, such date will be the date of receiving the books of account or documents or assets seized or requisition by the Assessing Officer having jurisdiction over such other person. In the case of the other person, the question of pendency and abatement of the proceedings of assessment or reassessment to the six assessment years will be examined with reference to such date.
The jurisdictional issue has been decided by the Tribunal taking note of the admitted factual position that the assessee’s Assessing Officer received the materials from the Assessing Officer of searched person only on 2nd August, 2016. If that be the case, the assessment for the year 2010-11 could not have been subjected to proceedings under Section 153C(1) of the Act.
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2022 (9) TMI 1517
Reopening of Re-assessment - notice issued to a dead person - HELD THAT:- AO as proceeded to pass the order of assessment against the deceased assessee. The said order is unsustainable as the entire reassessment proceedings were initiated and the order impugned passed against a dead person, which makes the order invalid and non est in the eyes of law.
This court in the case of Dipak Tanna [2022 (6) TMI 1435 - BOMBAY HIGH COURT] has held that the notice issued to a dead person is not valid. Reliance in this regard can also be placed in the case of ITO v. Durlabhbhai Kanubhai Rajpara [2019 (10) TMI 933 - SC ORDER] as held that a notice issued under section 148 of the Act against a dead person would be invalid, unless the legal representatives submit to the jurisdiction of the Assessing Officer without raising any objection. Consequently, where the legal representatives do not waive their right to a notice under section 148 of the Act, it cannot be said that the notice issued against the dead person is in conformity with and with intent and purpose of the Act
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2022 (9) TMI 1516
Disallowance of deduction of ESI and PF claimed u/s. 36(1)(va) - HELD THAT:- Admittedly, the assessee has made these payments before the due date of filing of return of income u/s. 139(1) of the Act, but after the due date as prescribed under the respective acts of Provident Fund and ESI Act. Once this is a factual position, the issue is covered by the decision of Checkmate Services P. Ltd.[2022 (10) TMI 617 - SUPREME COURT] wherein it was held that the employees contribution of ESI and PF has to be remitted on or before the due date as prescribed under the respective statutes and not after that for making a claim. We dismiss the claim of the assessee.
Disallowing the inconsistency in total amount claimed u/s. 37 - difference in reporting in ITR and claimed in Form No.3CD - HELD THAT:- The assessee has made a disallowance under the provisions of s. 37 of the Act, because there is no specific clause in tax audit report to report the amount to be considered for disallowance u/s. 40(a)(ii) of the Act. We find that there is some problem in the tax audit form or in the processing of return through CPC. But, in any case from the facts it is clear that these amounts are already disallowed by the assessee and nothing more is to be disallowed, because total disallowance practically comes to Rs. 21,02,846/- and for that purpose no separate disallowance u/s. 143(1) of the Act can be made for an amount of Rs. 8,24,846/-. We direct the A.O to allow the same. This issue of assessee’s appeal is allowed.
Difference pertaining to payment made for gratuity to the employees which is of allowable expenditure as per Explanation 2 to s. 40A(7) - HELD THAT:- We are of the view that the deduction of gratuity is available in substantive law and it cannot be disallowed merely by the reference of inconsistent entries in explanation of s. 143(1)(a) of the Act being a procedural provisions, it shall not take away the right confirmed in s. 37 r/w s. 40A(7) and s. 36(1)(v) of the Act. We direct the A.O to delete this disallowance. This issue of assessee’s appeal is allowed.
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2022 (9) TMI 1515
Addition of expenditure incurred u/s 57 - assessee during the assessment proceedings failed to furnish the details of the expenses - HELD THAT:- In the case on hand, the assessee has shown gross income from other sources against which a deduction of was claimed u/s 57 - But both the authorities below have disallowed the same i.e. deduction/expenses in the absence of necessary documentary evidence. Even at the time of hearing before us, AR in the written submission has submitted that the gross amount of income cannot be taxed without allowing the corresponding expenses which were claimed in the return of income.
However, the onus lies upon the assessee to furnish the necessary documentary evidences in support of the claim made in the income tax return. If the assessee fails to discharge the onus, there is no remedy available to the revenue to disallow the claim of the assessee. Nevertheless, in the interest of justice and fair play we are inclined to give one more opportunity to the assessee to produce the necessary documentary evidence in support of his contention before the AO. Hence, the ground of appeal raised by the assessee is allowed for the statistical purposes.
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2022 (9) TMI 1514
Rectification of mistake u/s 254 - Income chargeable to tax - Waiver of Principal amounts of loan/borrowings - one time settlement (OTS) with banks and financial institutions - Assessee also received waiver of interest due on the aforesaid loans - While the principal amount waived was claimed as not taxable in the return of income, the interest component that was waived on the loans were offered to tax by the Assessee u/s.41(1) - HELD THAT:- In the case of CIT v. T.V. Sundaram Iyengar & Sons Ltd [1996 (9) TMI 1 - SUPREME COURT] the court observed that the moneys had arisen out of ordinary trading transactions. The assessee had received certain deposits from customers in the course of carrying on his business, which were originally treated as capital receipts. Since these credit balances, standing in favour of assessee’s customers, were not claimed by the customers, the assessee transferred such amounts to its profit and loss account. The assessee did not include such amounts in its total income. The Court held that although the amounts received originally were not of income nature, the amounts remained with the assessee for a long period unclaimed by the trade parties. By lapse of time, the claim of the deposit became time barred and the amount attained a totally different quality. It became a definite trade surplus. Although it was treated as deposit and was of capital nature at the point of time it was received, by efflux of time the money has become the assessee’s own money. What remains after adjustment of the deposits has not been claimed by the customers. The claims of the customers have become barred by limitation. Here we see the concept of ‘changing of character of receipt by efflux of time’ and the action of the assessee of crediting it to profit & loss account which shows that the assessee treats it as revenue, as in the present case, where receipts have been shown as extraordinary items in the profit and loss account (Note 14 of notes to Profit & Loss Account). It is based on these decisions that the AO made the impugned additions in AY 2005-06 & 2006-07.
Waiver of working capital loan was taxable. Therefore, the view taken by the Tribunal in it’s order [2022 (1) TMI 1399 - ITAT BANGALORE] cannot be said to be an unsustainable view. The tribunal has given reason as to why waiver of principal portion of working capital loan is taxable and has taken a conscious decision after considering the Tribunal’s order for AY 2005-06. It is no doubt true that to the extent the waiver of loan was towards term loan, it was not taxable as was held by the Tribunal in it’s earlier order for AY 2005-06. Therefore, to the extent that the Tribunal order dated 21.1.2022 holding that the waiver of principal of loan availed for capital account purpose is not taxable.
Whether any mistake can be rectified in exercise of powers u/s.254(2)? - The Hon’ble Supreme Court in the case of CIT Vs. Saurashtra Kutch Stock Exchange case [2008 (9) TMI 11 - SUPREME COURT] has held that non-consideration of the decision of the jurisdictional high court/Supreme Court constitutes mistake apparent from record and is rectifiable within the meaning of section 254(2) of the Act.
It can be said that in the case of Reliance Telecom [2021 (12) TMI 211 - SUPREME COURT] the Hon’ble Supreme Court based its conclusion by holding that a detailed order was passed and issue decided and such order cannot be recalled in exercise of powers of rectification u/s.254(2) of the Act. By doing so, it has not diluted the ration laid down in the case of Saurashtra Stock Exchange [2008 (9) TMI 11 - SUPREME COURT] or Honda Siel [2007 (11) TMI 8 - SUPREME COURT] and the power to rectify orders which do not follow binding decision of Supreme Court or High Court or earlier order of Tribunal in Assessee’s own case.
The mistake apparent on the record of the tribunal is in not distinguishing the nature of loan waived in AY 2005-06 from the one waived in AY 2006-07, which mistake is apparent from the details of the loan waived
In the given facts and circumstances, we are of the view that there is a mistake apparent on the face of record which requires to be rectified.
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2022 (9) TMI 1513
Cheating - Default in repayment of loan - Deposit of bogus share certificates in the Central Bank of India to obtain loans.
HELD THAT:- The ingredients to constitute an offence under Section 420 of IPC are as follows :- (i) A person must commit the offence of cheating under Section 415 and (ii) The person cheated must be dishonestly induced to (a) deliver property to any person or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security - Cheating is an essential ingredient for an act to constitute an offence under Section 420 of IPC.
It is relevant to rely upon the judgment made by the Honourable Supreme Court of India in the case of INDIAN OIL CORPORATION VERSUS NEPC INDIA LTD & ORS [2006 (7) TMI 575 - SUPREME COURT] held that the civil liability cannot be converted into criminal liability and it is necessary to take notice of a growing tendency in business circle to convert purely civil dispute in criminal case. This is obviously on account of prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lender/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claim which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and dishonoured.
The term "forgery" used in these sections is defined in Section 463 of IPC. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. Section 464 of IPC defines "making a false document". The condition precedent for an offence under Sections 467, 468 and 471 is forgery. The condition precedent for forgery is making a false document. This case does not relate to any false record and all the documents are more than 30 years old and with proper custody.
On perusal of all the proceedings pertaining to the subject properties categorically shows that the matter has been settled by the orders of this Court 50 years ago and the same sought to be re-opened for investigation which is clearly not permissible. The petitioner came into the picture only in the year 1995, when the shares transferred to M/s. V.K.K. Charities, who was the successful bidder in the auction. All the proceedings from the initiation of auction are sanctioned by the BIFR by sanctioning the scheme of rehabilitation.
The FIRs in Crime Nos.2 & 3 of 2016 cannot be sustained as against the petitioner and they are liable to be quashed - Petition closed.
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2022 (9) TMI 1512
Revision u/s 263 - disallowance of claim of deduction u/s 80IA - tribunal granted relief to assessee - HELD THAT:- Tribunal has noted the factual contend namely with regard to the purchases which were undertaken by the respondent/assessee as also the terms and conditions of the agreement entered into by the assessee with the concerned highways department and having been factually satisfied that the deduction claimed by the assessee is admissible, had granted relief. More importantly the Tribunal had taken note of the fact that for the previous assessment years 2010-11 the learned Tribunal had adjudicated the issue and had granted relief for assessee and for the subsequent years 2013-14 and 2014-15 no disallowance has been made u/s 80IA .
That apart the Tribunal has also taken note of various decisions of the Hon’ble Supreme Court which had laid down the legal principle as to what and under what circumstances the Commissioner of Income Tax can exercise power under Section 263 of the Act.
The revenue has not disputed before us that no disallowance was made in the previous two assessment years as well as the subsequent two assessment years. Thus in the absence of any distinguished feature in the nature of contract the Rule of Consistency has to be applied - No substantial question of law.
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2022 (9) TMI 1511
Profiteering - construction service supplied by the Respondent - Respondent had not passed on the benefit of Input Tax Credit to him by way of commensurate reduction in the price - contravention of section 171 of CGST Act - Time Limitation - HELD THAT:- The Authority, without going into the merits of the case, directs the DGAP to re-examine/re-investigate and recalculate the amount of profiteering under rule 133(4) of the CGST Rules, 2017 strictly in respect of the findings made in para 7(i) to 7(iii) above and submit its Report within 3 months of this order.
Further, the Hon'ble High Court of Delhi in the case of Nestle India Ltd. v. Union of India [2020 (2) TMI 671 - DELHI HIGH COURT] has held that it appears to us that the limitation of period of six months provided in rule 133 of the CGST Rules, 2017 within which the authority should make its order from the date of receipt of the report of the Directorate General of Anti-Profiteering, appears to be directory inasmuch as no consequence of non-adherence of the said period of six months is prescribed either in the CGST Act or the rules framed thereunder.
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2022 (9) TMI 1510
Maintainability of appeal on low tax effect - Revenue seeks to recall of the order of Tribunal dismissing the appeals of the Revenue in view of low tax effect - DR has placed on record copy of Revenue Audit Objection and contended that the same falls within the exceptions referred to in the CBDT Circular No.3/2018, to recall the order of the Tribunal.
HELD THAT:- Tribunal while disposing of the appeal of the Revenue, has given liberty to the Revenue to move an application for recalling the impugned order of the Tribunal, if the Revenue fulfills any of the exceptions referred to in the CBDT Circular No.03/2018 dated 11.07.2018. Admittedly, the Revenue Audit Objection placed on record by the learned DR, falls within the exceptions referred to in the CBDT Circular. Accordingly, we recall the impugned order of the Tribunal and post this case for hearing on 14.10.2022 or immediate next date of hearing, when this Bench functions.
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2022 (9) TMI 1509
Seeking grant of bail - Criminal Conspiracy - co-location and passing of confidential information to M/s. OPG Securities by officials of NSE - wrongful gain to M/s. OPG Securities - tampering the evidence/influencing the witnesses without any material particulars.
Whether filing of charge sheet by the respondent/CBI before concerned court on 21.04.2022 pertaining to offences punishable under sections 13(1)(d) and 13(2) of the PC Act and section 120B IPC is sufficient compliance of section 167(2) of the Code to deny statutory bail or default bail to the petitioner/accused as argued by the respondent/CBI or said charge sheet is incomplete or piece meal charge sheet and does not fall within ambit of section 167(2) of the Code as argued by the learned Senior Counsel for the petitioner/accused?
HELD THAT:- Pertaining to section 167(2) of the Code as discussed hereinabove, section 173 of the Code only permits filing of a final report after completion of the entire investigation in respect of all offences and does not permit a piece-meal investigation and filing of incomplete charge sheet before Court. The charge sheet filed by the respondent/CBI is a piece meal charge sheet and is not filed in respect all offences subject matter of present FIR. The respondent/CBI is not legally permitted to pick one portion of investigation and to complete it and thereafter file piece meal charge sheet in respect of few offences subject matter of FIR and to left open investigation in respect of other offences and subsequent filing of charge sheet in respect of left over offences. This would be complete negation of section 167(2) of the Code. The investigating agency cannot be permitted to fragment or break FIR for the purpose of different charge sheets and this will tantamount to negation of section 167(2) and would against mandate of Article of 21 of the Constitution. The practice of filing such types of charge sheets to seek extension of remand beyond the statutory period was deprecated by the Superior Courts in past. The investigating agency is required to form opinion regarding all offences subject matter of FIR after completion of entire investigation.
There is no force in the arguments advanced by the Special Public Prosecutor for the respondent/CBI that the right of the applicant/accused under section 167(2) of the Code has come to an end immediately after filing of charge sheet on 21.04.2022 and said right under section 167(2) cannot be revived due to reason that further investigation is pending within the meaning of sub-section 8 of Section 173 of the Code.
In Dinesh Dalmia V. C.B.I. [2007 (9) TMI 686 - SUPREME COURT], the Supreme Court observed that a charge sheet is a final report within the meaning of Sub-section (2) of Section 173 of the Code and is filed if it enables the court to apply its mind as to whether cognizance of the offence thereupon should be taken or not and the power of the investigating officer for making further investigation in terms of section 178(8) of the Code is not taken away only because a charge sheet under Sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate. The investigation arising out of present FIR is incomplete investigation as only one part of investigation regarding alleged appointment of the petitioner/accused is completed and pending investigation qua other offences for which charge sheet is not filed is still pending. It is not a case of further investigation as argued by the Special Public Prosecutor.
There cannot be any dispute to the legal proposition that the purpose of police report under section 173(2) of the Code is to enable the Magistrate to satisfy himself on issue of taking cognizance or not. The concerned Special Court can take cognisance only in respect of some of offences for which charge sheet was filed on 21.04.22 but cannot take cognizance in respect of offence for which investigation is still pending and charge sheet is not filed. It is not permissible within mandate of legal provisions as contained in sections 173(2) and 167(2) to take cognizance in piece meal or in parts. It would amount to negation of indefeasible right given to the accused under section 167(2) of the Code - In the present case, the respondent/CBI itself preferred to club investigation of issues arising out of SEBI order dated 11.02.2022 with investigation of offences subject matter of present FIR. The investigating agency cannot circumvent section 167(2) of the Code by filing incomplete charge sheet and cannot be filed within the meaning of section 173(2) till the investigation is completed and any report sent before the investigation is completed will not be a police report within the meaning of section 173(2) of the Code. The respondent/CBI cannot take shelter of filing charge sheet in respect of offences pertaining to alleged illegal appointment of the petitioner/accused by giving nomenclature of complete charge sheet or final report as per section 173(2) of the Code to defeat the right of statutory bail under Section 167(2) of the Code.
The Special Judge" while dismissing application for grant of statutory bail vide order dated 28.05.2022 did not appreciate legal provisions pertaining to section 167(2) in right perspective by holding that the charge sheet was complete containing all the details and was filed by mentioning therein the relevant sections. The Special Judge did not appreciate difference between incomplete investigation and further investigation and accepted both phrases as carrying same meaning. The Special Judge did not correctly observed and held that the charge-sheet filed on 21.04.2022 clearly describes details of all the material collected by the IO/Investigating agency during the investigation regarding role played by the co-accused and the petitioner/accused.
The respondent/CBI has failed to complete investigation in respect of all the offences as mentioned in FIR and to file a Final Report under section 173 of the Code within stipulated time i.e. sixty days from the date of the arrest of the petitioner/accused and filed an incomplete/piece-meal charge sheet before the concerned court on 21.04.2022 i.e. 57th day from the date of arrest.
The applicant is admitted to bail as per section 167(2) of the Code on furnishing a personal bond in the sum of Rs. 5,00,000/- with one surety of the like amount to the satisfaction of the concerned trial Court subject to the conditions imposed - application allowed.
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2022 (9) TMI 1508
Profiteering - reduction in rate of tax or additional benefit of ITC availed by the Respondent after implementation of GST - Respondent had not passed on commensurate benefit of ITC by way of reduction in the price - contravention of Section 171 of the CGST Act, 2017 - HELD THAT:- It is clear from the plain reading of Section 171(1) that it deals with two situations:- one relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the DGAP's Report that there has been no reduction in the rate of tax in the post GST period; hence the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST. It is observed from the DGAP's report that the ITC, as a percentage of the turnover, that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 5.07%, whereas, during the post-GST period (July-2017 to September, 2020), it was 5.60% for the project 'Victoria Vista'.
The profiteering amount determined by the DGAP during the period 1-7-2017 to 30-9-2020 is in respect of the units in respect of units which belong to Sh. Narendra Kumar Bardia (unit no. 8B) Rs. 11,872/- (including GST), Sh. Swapan Ghosh (unit no. 9B) Rs. 1,60,626/- (including GST), Sh. Harish Agarwal (unit no. 18B) Rs. 2,01,339/- (including GST) and Sh. Firoz Bei (unit no. 19B) Rs. 6,530/- (including GST). Further, it also appears from the report of the DGAP that the commensurate proportion of benefit of ITC is to be calculated as discussed supra and needs to be passed on to the eligible recipients proportionate to their share at the time of supply (sale of their share of flats) as envisaged in the Notification No. 4/2018-(Central Tax).
The Authority finds that this case needs to be reinvestigated by the DGAP based on the above findings in the para 11 to 13 supra of this Authority. Thus the Authority directs the DGAP to reinvestigate the matter as per the provisions of Rule 133(4) of the CGST Rules 2017 for the period 1-7-2017 to 18-5-2022 i.e. till the date of Completion Certificate of the Project.
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2022 (9) TMI 1507
Addition u/s 68 - unexplained unsecured loans - HC confirmed ITAT order deleting the addition made u/s 68 on account of unexplained unsecured loans obtained by the assessee observing that the alleged lenders were not shell companies - HELD THAT:- Delay condoned. Issue notice, returnable on 11.10.2022.
Dasti service, in addition, is permitted.
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