|
Advanced Search Options
Case Laws
Showing 161 to 180 of 1510 Records
-
2015 (1) TMI 1359
Denial of Duty Entitlement Pass Book (DEPB) credit - public notice issued on 21-9-1998 - The impugned order states that the notification would be applied only prospectively and cannot be availed for the petitioner who is claiming the benefit for its exports between May 1998 to July 1998 - Held that: - The petitioner was only asking for rates as prevalent for the earlier period and the amount claimed at ₹ 7,61,423/- was on the rates that were prevalent at the relevant time. The doubt created that such a benefit would be applicable only to non-finished products was quite unnecessary for the Entry 71 does not say any more than the description of the product. The denial of benefit was erroneous and the impugned order cannot be supported - petition allowed - decided in favor of petitioner.
-
2015 (1) TMI 1358
Calculation under export obligation - Benefit of Policy circular No.8 (RE-98)/98-99 - impact of foreign exchange fluctuation - devaluation of rupee - Export obligation against EPCG licence - the decision in the case of Parasrampuria Synthetics Ltd. Versus UOI & Another [2013 (10) TMI 903 - DELHI HIGH COURT] contested - Held that: - The petitioner seeks to withdraw the Special Leave Petition reserving liberty to approach the High Court by way of review petition - SLP dismissed with the liberty sought for.
-
2015 (1) TMI 1357
Offence registered under the Prevention of Corruption Act - Testimony of a hostile evidence - Held that:- In the instant case, PW-8, who was a member of the raiding party had sent the report to the police station and thereafter carried the formal investigation. In fact, nothing has been put to him to elicit that he was anyway personally interested to get the appellant convicted.
Even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence.
A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross-examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross-examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the public prosecutor this witness has accepted about the correctness of his statement in the court on 13.9.1999. He has also accepted that he had not made any complaint to the Presiding Officer of the Court in writing or verbally that the Inspector was threatening him to make a false statement in the Court. It has also been accepted by him that he had given the statement in the Court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13.9.99 after going through and admitting it to be correct. It has come in the re-examination that he had not stated in his statement dated 13.9.99 in the Court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused. He had also not stated in his said statement that the accused and witnesses were taken to the Tehsil and it was there that he had signed all the memos.
Reading the evidence in entirety, his evidence cannot be brushed aside. The delay in cross-examination has resulted in his pre-varication from the examination-in-chief. But, a significant one, his examination-in-chief and the re-examination impels us to accept the testimony that he had gone into the octroi post and had witnessed about the demand and acceptance of money by the accused. In his cross-examination he has stated that he had not gone with Baj Singh to the vigilance department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of entire evidence in examination-in-chief and the re-examination. The evidence of PW6 and PW7 have got corroboration from PW8. He in all material particulars has stated about the recovery and proven the necessary documents pertaining to the test carried with phenolphthalein powder. The fact remains that the appellant’s pocket contained phenolphthalein smeared currency notes when he was searched. It is apt to take note of the fact that the currency notes that have been recovered from the right side of the pant pocket were actually prepared by PW8 by smearing them with phenolphthalein powder. The appellant was caught red-handed with those currency notes.
Hence, we are inclined to hold that the learned trial Judge and the High Court have appositely concluded that the charges leveled against the accused have duly been proven by the prosecution. It is not a case that there is no other evidence barring the evidence of the complainant. On the contrary there are adequate circumstances which establish the ingredients of the offences in respect of which he was charged.
-
2015 (1) TMI 1356
Revision u/s 263 - Unexplained credit - bogus sales - Held that:- A perusal of the assessment order reveals that the AO had given a categorical finding that the total credit in the assessee’s various bank accounts was amounting to ₹ 2122,27,57,495/- out of this a sum of ₹ 856,64,49,533/- had been treated as bogus sales for which sales bills were found and were duly impounded. However, the remaining sum of ₹ 1388,09,01,411/- had remained unexplained in spite of various opportunities given to the assessee. The AO had treated the same as unexplained income of the assessee and decided to bring it into tax in various assessment years. He also worked out the additions for different assessment years. However, he made the said additions on protective basis observing that the assessee had not been able to establish the source of these credits. He, however, made the addition of 5% of the said amount as commission income of the assessee on substantive basis. A perusal of the above findings itself reveals that the order of the AO was erroneous.
In the absence of any evidence on the file as to source of the credits of the amount in question in the various bank accounts of the assessee, the AO had treated the said amount as unexplained income of the assessee. Once the AO had treated so, the AO was required to make the addition of this amount on substantive basis. Even without making the addition of the amount in question on substantive basis in any other persons’ account, the AO could not have made the addition of the amount on protective basis in the assessee’s account.CIT was justified in holding that the order of the AO was not only erroneous but also prejudicial to the interest of the Revenue. - Decided against the assessee.
-
2015 (1) TMI 1355
Refund claim - purchase of flats in the residential complex during the period prior to 01.07.2010 when the amendment was made to the law that purchase of flats by individual owner of residential complex also leviable to service tax - Learned counsel submits that since the Tribunal has already passed Final Order and remanded the matters to the original authority in line with the Final Orders passed by this Tribunal Nos. 21349 to 21469/2014, these two matters also can be remanded to the original adjudicating authority for fresh consideration - Held that: - matters are remanded to the original adjudicating authority to consider the refund claim afresh in accordance with law - appeal allowed by way of remand.
-
2015 (1) TMI 1354
Reduction of the Preference Share Capital - Held that:- Having perused the petition and more particularly the reasons given in support of the proposed reduction, this court is of the view that there is no reason not to confirm the proposed action of the petitioner to reduce its capital.
The form of the minute proposed vide Para 11 of the Petition to be registered under section 103(1)(b) of the Companies Act is hereby approved and confirmed.
The petitioner is directed to publish the Notice of Confirmation of Reduction of Capital and approval of the Minutes in the Ahmedabad editions of the English daily “Indian Express” and the Gujarati daily “the Jansatta” within 14 days of the registration of the order with the Registrar of Companies.
-
2015 (1) TMI 1353
Scheme of amalgamation - dispensation of the convening of meetings of the Equity Shareholders, secured and unsecured creditors of the petitioner companies - Held that:- As 100% of equity shareholders and unsecured creditors of the the petitioner companies have given their consent to the Scheme of Amalgamation, hence, the prayer is for dispensation of their meetings.
The petitioner companies have confirmed that there are no investigations or proceedings pending against it under Sections 235 to 251 of the Act.
In this view of the aforesaid factual matrix, when all the equity share holders and unsecured creditors of the petitioner companies have consented to the Scheme of Amalgamation, convening of their meetings are ordered to be dispensed with. There is no secured creditor of the Petitioner companies, hence, no meeting is required.
-
2015 (1) TMI 1352
Service of notice - case of assessee is that notice u/s 143(2) of the Act was not served on him before passing the order u/s 153A of the Act - Held that: - the FAA held that the assessee had participated in assessment proceedings, that as per the provisions of section 292BB the assessment made by the AO had to be held valid assessment even if there was non-service of notice as per the provisions of the Act - there is no proof of service of notice allegedly issued by the AO u/s. 143(2) of the Act. In these circumstances, the order passed by the AO for the year under consideration was invalid order and not sustainable in the eyes of law.
Application of Section 292BB of the Act - Held that: - the section do not cure the virus of non-issuance of the notice u/s 143(2) of the notice especially when the assessee had raised objection before completion of assessment proceedings.
In absence of service of notice issued u/s. 143(2) of the Act the order passed by the AO were not maintainable - assessment held as invalid - appeal dismissed.
-
2015 (1) TMI 1351
Oppression and mismanagement - maintainability of the Company Petition - Held that:- The appellants are questioning the maintainability of proceedings under Section 397-398 of the Companies Act on the ground that the dispute between the parties has been settled on the basis of the arbitration award dated 31.7.2014 whereas the appellants themselves have questioned the said award by filing an application under Section 34 of the Arbitration and Conciliation Act. Respondents has drawn the attention of this Court to the grounds on which the appellants have challenged the award and has pointed out that the award has been challenged on numerous grounds and some of the grounds support the reasoning assigned by the CLB rejecting in the impugned order. Undisputedly the award has not attained finality and the grounds raised by the appellants in the application under Section 34 of the Arbitration and Conciliation Act reflect that the entire award is under challenge on numerous grounds.
Under Section 397-398 of the Companies Act, the tribunal/CLB has power to grant relief in case of oppression and mismanagement of the affairs of the Company. The distribution of the assets in terms of the award has not taken place, therefore, in the facts of the present case the jurisdiction of the Company Law Board will not cease on the passing of the award.
So far as the reasons which have been assigned by the Company Law Board in the impugned order are concerned, the question formulated by this Court is about the sustainability of those reasons and not the perversity of any finding recorded by the CLB while assigning those reasons. If there is no commonality of parties and if respondent No.1 Company is not a party to the agreement, then the arbitration agreement would not have any effect on the pending proceedings under Section 397-398 in respect of the affairs of respondent No.1 Company. If the said conclusion on fact about commonality of parties is incorrect, then it would be open to the appellants to address the CLB on this aspect of the matter at the time of final hearing of the application, since the CLB in the impugned order itself has stated that the effect of the arbitration agreement would be seen at the time of final disposal of the petition. Even if the reason assigned by the CLB about entering into the alleged arbitration agreement during the trial of the case may not be sustainable, that would not effect the final conclusion arrived at by the CLB on account of the other reasons and specially the fact that the arbitration award has not attained finality and also considering the different scope of two proceedings. Appeal dismissed.
-
2015 (1) TMI 1350
Appeal under Section 10-F of the Companies Act, 1956 - Held that:- Observer-cum-facilitator is entitled to ensure that the sale proceeds received from the sale of the Company assets are appropriated towards discharge of the genuine liability of the respondent No.1 Company. Since the Observer-cum-facilitator is a retired Hon'ble Judge of this Court, therefore, the said observation made by the Company Law Board cannot be doubted. In respect of the prayer for forensic audit, the Company Law Board has rejected the prayer noting that such a prayer does not arise at this stage, meaning thereby it is open to the appellants to file an appropriate repeat application in this regard at the appropriate stage.
Since the appellant has the liberty to pray for the forensic audit at the appropriate stage, therefore, such a prayer can be made by the appellant again along with the prayer for forensic audit because the said prayer has not been examined by the Company Law Board and Company Law Board has observed that interim relief cannot be sought by the appellant in piecemeal. The issues which the appellant is raising before this Court are factual issues and the appeal does not involve any substantial question of law requiring consideration under Section 10-F of the Companies Act.
-
2015 (1) TMI 1349
Smuggling - export of sandalwood chips - Certificate of origin of the goods produced by the appellants was fake and fabricated - Held that: - Perusal of the grounds of appeal and pleadings of the appellants in the appeal memorandum, no where discloses that the certificate produced by it was genuine - There is nothing on the record to show that the appellant has not defraud customs. Modus operandi of the appellants exhibits that it had a predetermined mind to defraud Revenue - appeal dismissed - decided against appellant.
-
2015 (1) TMI 1348
Disallowance of the expenses for scientific research u/s.35(2AB) - Held that:- Appellate tribunal has not erred in law in holding that the expenses incurred outside the approved R & D facility are also eligible for weighted deduction u/s 35(2AB). See CIT vs. Cadila Healthcare Limited [2013 (3) TMI 539 - GUJARAT HIGH COURT]
Disallowance of interest u/s 36(1)(iii) - interest free advances given - ITAT deleted the addition - Held that:- Tribunal has relied upon the decision of this Court in the case of CIT vs. Raghuvir Synthetics Limited (2013 (7) TMI 806 - GUJARAT HIGH COURT) and has allowed the appeal to that extent in favour of the Assessee. When the question is already covered by the above referred decision of this Court, we do not find that any substantial question would arise for consideration, as canvassed.
Disallowance of depreciation on building and plant and machinery - the Assessee has not produced any cogent evidence regarding use of the said plant purchased - ITAT allowed claim - Held that:- The question is already covered by the decision of this Court in the case of ACIT vs. Ashima Syntex Limited [2000 (8) TMI 22 - GUJARAT High Court] we do not find that such question can be considered as substantial question of law, which may arise in the present appeal, as canvassed.
Appeal admitted on (D), (E), (F) &(G) being substantial questions of law.
(D) Whether the Appellate tribunal has substantially erred in law in deleting the addition of ₹ 52,59,803/- in calculation of adjusted book profit for the purpose of MAT considered as towards provision for doubtful debt and diminution in the value of investment relying on the decision of coordinate Bench in the case of ACIT vs. Vodafone Essar Gujarat Limited ?
(E) Whether the Appellate tribunal has substantially erred in law in deleting the addition of the provision for diminution in value of asset despite amended provisions of Clause (i) inserted in Explanation-I by Finance Act, 2009 w.e.f. 1.4.2001 under which the provisions for diminution in the value of any assets needs to be added back ?
(F) Whether the Appellate tribunal has substantially erred in law in directing to reduce the prior period expenses of ₹ 23,27,520/- for the computation of book profits u/s 115JB of the Act ?
(G) Whether the Appellate Tribunal has substantially erred in law in deleting the addition of ₹ 64,13,532/- quantified as disallowance expenditure u/s 14A, despite the specific provisions of Clause (f) of Explanation- I to Section 115JB and when the issue of disallowance u/s 14A under regular computation was restored to the CIT(A) ?
-
2015 (1) TMI 1347
Assessment order passed under section 143(3)/147 validity - barred by limitation of time u/s 153 - period of limitation - Held that:- Admittedly, in this case, notice u/s. 148 has been issued on 31.5.2002. Keeping in view the provisions of section 153(2) the assessment order should have been passed on or before 31.3.2004. However, assessment proceedings were stayed by the Hon'ble Jurisdictional High Court on 16.3.2004, which was vacated on 16.3.2011 when the writ petition filed by the assessee was dismissed. Admittedly, after 26.5.2011, there was no stay of proceedings before the AO.
Thus, the period from 16.3.2004 to 26.5.2011 has to be excluded as per clause (ii) of Explanation (1) to Section 153 of the Act for the purpose of computing the period of limitation. If the above stay period is excluded, the period available for making the assessment order on 26.5.2011 with the AO was less than 60 days, the time limit for making the assessment shall be extended to 60 days i.e. upto 25.7.2011 as per proviso to Explanation (1) of Section 153 of the Act. Admittedly, in this case, the AO has passed the assessment order on 10.10.2011 i.e. beyond 60 days and the order passed by the ld CIT(A) is perfectly correct and, therefore, deserves to be confirmed. Accordingly, we confirm the order of ld CIT(A) in holding that the assessment order passed by the AO is barred by limitation as provided in explanation (1) (ii) to Section 153 of the Act and he was fully justified in annulling the assessment order dated 10.10.2011 passed by the AO.
-
2015 (1) TMI 1346
Demand of duty - excesses and shortages of stock - Held that: - It is well settled principle that duty is to be demanded by the manufacturer/producer of the goods - Admittedly in this case appellant is not the manufacturer of the goods and is only a registered dealer and it is not the allegation that appellant has procured the goods clandestinely without payment of duty - appeal allowed - decided in favor of appellant.
-
2015 (1) TMI 1345
Maintainability of the suit - suit filed by the father of the appellants in respect of property owned by appellants Nos.1 and 2 even when the appellants were added as plaintiffs as heirs of their father who died during pendency of the suit - whether description of the appellants who are owners as heirs instead of owners in their own right will be a case of mere "error, defect or irregularity" not affecting the merits or jurisdiction of the Court which did not affect the maintainability of the suit. it is undisputed that appellants Nos.1 and 2 are the sole owners of the property in question
Held that:- It is not disputed that they were substituted as plaintiffs on the death of Shiv Kumar before the trial Court itself. It is also not disputed that they could maintain the suit for eviction. Thus on admitted facts, only defect pointed out is of formal nature in description without, in any manner, affecting the merits or the jurisdiction of the Court. Such irregularity could have been corrected by the Court under Order 1 Rule 10 and can be corrected even at this stage unless the defendant is in any manner prejudiced. No principle or authority has been brought to our notice which could affect the maintainability of the suit merely on account of wrong description which did not in any manner cause prejudice to the defendant, particularly when no such objection is shown to have been raised before the trial Court.
In our view, the District Judge is, thus, not justified in reversing the decree of the trial Court on such a technicality which did not in any manner affect the merits of the case. Section 99 of the Code of Civil Procedure, 1908 provides as under :
1 "99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction:
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:
[Provided that nothing in this section shall apply to non-joinder of a necessary party.]
Thus, the High Court also erred in upholding the order of the District Judge.
-
2015 (1) TMI 1344
Affidavit verifying petition - Grant of leave - whether the Court can grant leave to the persons who have sworn the affidavit verifying the instant winding-up petition, as being “duly authorised” to do so by the petitioners? - Held that:- This Court is of the view that in the facts and circumstances of the instant case, before such leave under Rule 21 of the Company (Court) Rules, 1959, is granted in favour of those persons, it is necessary for it to be satisfied that that all of them have been “duly authorised” by the petitioning-creditors to make and file the affidavit in support of the instant petition on their behalf. As such, the deponents are directed to satisfy this Court that they were “duly authorised” by the petitioning creditors to make and file the affidavit verifying the instant winding-up petition, by producing valid resolutions adopted by the Board of directors of the petitioning-creditors supported by powers of attorney given in their favour by the petitioning-creditors. Let such documents be produced before this Court on 29th January, 2015.
-
2015 (1) TMI 1343
Petitioner ceased to be a Director on the date of alleged offence - no prosecution for the offences committed by other Directors - Held that:- Whether petitioner had ceased to be a Director on the date of alleged offence, whether petitioner can be held liable for offences committed by other Directors are the matters to be decided before the trial court. These factual disputes cannot be decided in a petition under Section 482 Cr.P.C.
The petition is dismissed with these observations.
-
2015 (1) TMI 1342
Unexplained credit u/s.68 - non furnishing of information - Held that:- CIT(A) in appeal observed that evidences have been provided to Assessing Officer during assessment proceeding who instead of carrying further investigation into the source of funds with the lenders, issued show cause on the basis of doubts and suspicion. Even during course of remand proceedings, Assessing Officer did no investigations, which is not justified. Both the lenders are Income Tax assessee and confirmations were given. Source of funds with creditors were also provided to Assessing Officer. Assessing Officer instead of taking action, made addition for the reason that cash was deposited before the loan transactions. The deposit of cash proceeding transactions can give rise to doubt and be a starting point for investigation but cannot be the basis of conclusion disregarding other evidences. Nothing adverse has been brought on record by Assessing Officer with regard to evidence produced by assessee on this point. In any manner, since creditors were assessed to tax, confirmation were filed, TDS deducted on interest credit and loan were reflecting in their accounts, no addition could be made in the hands of assessee u/s. 68. Accordingly, CIT(A) justified in deleting addition - Decided in favour of assessee
Disallowance of interest - assessee had debited interest expenses which was provided at 12% but had not charged interest on loan given to 3 persons - Held that:- Matter was carried before the First Appellate Authority, wherein various contentions were raised on behalf of assessee and having called for remand report and considering the same CIT(A) observed that evidence shows that interest had been charged by assessee on advances given to M/s. Royal Agencies and fact that advances to other concerns were business advances, disallowance of interest was not warranted. Accordingly, same was rightly deleted. We uphold the same.- Decided in favour of assessee
Unexplained income on the basis of interest - non receipt of reply from parties u/s. 133(6) - Held that:- As before the First Appellate Authority, various contentions were raised on behalf of assessee inter alia stated that assessee had regular business dealings with these persons. Assessee submitted ledger copies in his books as also confirmations from the said parties to establish that transactions and outstanding balances were genuine. Same were forwarded to Assessing Officer for his comments after verification of genuineness. It was stated by Assessing Officer in remand report that contentions put for by Authorized Representative is correct and matter be decided on merits. In view of comments of Assessing officer and fact that necessary confirmations were submitted on behalf of assessee, which was in conformity with the outstanding balances in the books. CIT(A) was justified in deleting addition - Decided in favour of assessee
-
2015 (1) TMI 1340
Dismiss or terminate the services of a workman - power exercised by Labor court - Held that:- It is a settled proposition of law that while considering the management's decision to dismiss or terminate the services of a workman, the Labour Court can interfere with the decision of the management only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Considering the delay in completing the enquiry and the age of the appellant and the fact that similarly situated workmen were reinstated with lesser punishment, the Labour Court ordered reinstatement, in exercise of its discretion under Section 11A of the Industrial Disputes Act.
Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws. While interfering with the award of the Labour Court, the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India and the impugned judgment cannot be sustained.
In the result, the appeal is allowed and the impugned judgment passed by the High Court is set aside and the award passed by the Labour Court is restored
-
2015 (1) TMI 1339
Deduction u/s. 80IB - expenses eligible for deduction - Held that:- Undoubtedly, the job work charges are directly related with the business of the assessee, hence, eligible for deduction u/s. 80 IB of the Act. We order accordingly. However, in respect of the claim of other income which relates to sundry balances written back, we find that the sundry balances written back relates to the purchases/expenses made in the earlier years. However, this fact needs to be verified by the AO. We, therefore, restore this issue to the file of the AO for the limited purpose of verification of the written back amount relating to the purchases/expenses of earlier years. The AO is directed to verify and if found to be related with the purchases /expenses of earlier years, the same has to be treated as eligible for deduction u/s. 80IB
Bogus and fabricated purchase and sale - Held that:- It is an undisputed fact that there is no issue/dispute in relation to third party sales, whereas the Tribunal has considered and accepted the genuineness of the sales made to : (i) M/s. Suryavinayak Aromatics (ii) Laveesha Enterprises (iii) Jaywant Industries Ltd. & (iv) Jaywant Products Ltd.
After para -17 of the Tribunal’s order following para -17(a) is to be inserted which reads as under:
“Para-17(a) :To complete the adjudication we have considered the sales made to aforementioned parties though the sale made to these parties is not the issue raised by the Revenue in its ground.”
............
|
9911796707
