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Showing 161 to 180 of 2855 Records
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2015 (10) TMI 2706
Vires of Notification bearing S.O.No.2941(E)/2009 dated 18.11.2009 - alleged offences under Sections 22(c), 27(A), 28, 29, 30 read with 8(c) of NDPS Act, read with Sections 116, 193, 195, 196, 120(b), 417, 109, 342, 466, 468, 469, 471, 420, 201 of the Indian Penal Code, 1908 and Sections 7, 15, 13(2), 13(1)(d), 19(1)(c) of the Prevention of Corruption Act and Rules 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - interpretation of statute.
Held that: - All that Note No.4 inserted by the impugned Notification says is that the quantities shown in columns 5 and 6 of the table relating to the respective drugs shown in Column 2 shall apply to the entire mixture or any solution or anyone or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs. It includes salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content. We do not find the Notification to be either Legislative in nature or to be suffering from any excessive delegation. Once the Parliament thought fit to delegate the function of identifying 'small quantities' and 'commercial quantities' under the Act, by way of Notifications in the Gazette, the exercise of such a power cannot be taken to be unconstitutional or ultravires of the Act, unless the very delegation is found to be illegal.
Note No.4 inserted by the impugned Notification does not make any new substance, which is not already stipulated as a narcotic drug or psychotropic substance. The mischief sought to be avoided by the Notification is too obvious to be seen. The Law does not want persons possessing quantities of prohibited drugs in combination with other drugs to escape the graded punishments stipulated in Section 18 of the NDPS Act. The object of the Notification is to remove the mischief.
The Notification is neither unconstitutional nor ultravires of the Act.
Petition dismissed.
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2015 (10) TMI 2705
Allowing exemption u/s 54EC - Capital gain not to be charged on investment in certain bonds - assessee did not made any investment within six months from the date of transfer and further did not fulfill the conditions prescribed in the agreement, therefore, exemption was wrongly allowed to the assessee - Held that:- The intent and purpose of section 54EC is the date, when the assessee actually collects/receives the sale consideration and thereafter makes investment within six months and that is the date of transfer, thus, the spirit of the legislation is very much clear. If the date of the agreement is taken and the assessee does not receive any consideration, then, where is the question of investment? The investment can only be made when any amount is actually received by the assessee. In fact, date of receipt by the assessee/investor and date of deposit for obtaining the prescribed bonds are important dates.
Suppose, the required bonds are not available with a particular bank/institution and are issued at a later stage, the date of deposit of the amount in the bank or the institution, as the case may be, are the relevant dates for getting the benefit of exemption u/s 54EC. For the purpose of section 54EC, the date of investment is to be regarded as the dates of investment/ the payment received by the authorized bank, thus, we find no infirmity in the conclusion drawn by the Commissioner of Income Tax (Appeals) - Decided against revenue.
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2015 (10) TMI 2704
Manufactured goods - Marketability - Aluminium Dross and Skimmings or similar Non-ferrous Metal Dross and Skimmings - the decision in the case of Hindalco Industries Limited Versus The Union of India, Customs, Excise And Service Tax Appellate Tribunal, The Commissioner of Central Excise [2014 (12) TMI 657 - BOMBAY HIGH COURT], where it was held that Merely because the goods satisfying the test of being marketed and saleable, it does not mean that the test of being manufactured in India has been satisfied - Held that: - delay condoned - notice issued.
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2015 (10) TMI 2703
Eligibility to deduction u/s 80IB - CIT-A allowed the claim considering assessee unit to be Small Scale Industrial Unit by simply relying on the submissions of the assessee and by not giving any independent findings - no consistency in the findings of CIT(A) - Held that:- It is well settled law that provisions of section 250(6) are mandatory and it is obligatory for Commissioner (Appeals) to pass a speaking order stating points raised in appeal, his decision thereon and reasons for such decisions.
Hon'ble Bombay High Court Maneklal D. Shah Vs. P.K. Gupta and Others [2002 (2) TMI 15 - BOMBAY High Court] has categorically held that appellate authority is enjoined and it is incumbent upon it to appreciate the evidence consider the reasoning of the primary authority and assign its own reasons as to why it disagrees with the reasons and findings of the primary authority. Unless adequate reasons are given, merely because it is an appellate authority, it cannot brush aside the reasoning or findings recorded by the primary authority. In the instant case, the Ld. CIT(A) has not provided reasons in the impugned order, we left with no other alternative but to set aside the impugned order and remand the matter to CIT(A) with a direction to decide the issue afresh in accordance with law after affording due and reasonable opportunity of being heard to the assessee.
in the assessment year 2007-08, on similar set of facts, the CIT(A) has confirmed the disallowance under section 80IB amounting to ₹ 26,41,716/- in respect of Noida unit. In the assessment year 2007-08, while deciding a similar issue the CIT(A) has not made any reference to the order passed by his predecessor in assessee’s case for assessment year 2006-07. Thus remand the matter back to the CIT(A) for fresh a decision
Disallowance u/s 36(l)(iii) on alleged interest free advances to various party - Held that:- This issue needs to be verified and decided at the level of the Assessing officer. The assessee is free to produce the recent decision of the Hon'ble Punjab & Haryana High Court on this issue. Considering the entire facts and circumstances of the present case, we set aside the order of CIT(A) on this issue and remand the matter to the CIT(A) for a fresh decision in accordance with law. For statistical purposes, this ground of the Cross objection is allowed.
Disallowance of prior period expenses - Held that:- As decided in Saurashtra Cement and Chemical Industries Ltd. [1994 (10) TMI 30 - GUJARAT High Court] merely because an expense relates to a transaction of an earlier year it does not become a liability payable in the earlier year unless it can be said that the liability was determined and crystallized in the year in question on the basis of maintaining accounts on the mercantile basis. In the instant case, bills were received in this year and, therefore, it can be said that the liability was determined and crystallized in the year in question on the basis of maintaining account on mercantile basis. - Decided in favour of assessee.
Disallowance u/s 40(a)(ia) - retrospectivity - Held that:- As in the case of CIT-I Vs. Ansal Land Mark Township (P) Ltd [2015 (9) TMI 79 - DELHI HIGH COURT] wherein held that the second proviso to Section 40 (a) (ia) of the Act is declaratory and curative in nature and should be given retrospective effect from 1st April 2005. Considering the entire facts and circumstances of the present case, we set aside the order of CIT(A) and remand the issue to CIT(A) with a direction to decide the issue afresh keeping in view the above decisions.
Disallowance of advisory charges paid - Held that:- Mere claim of the assessee that these expenses were on account of legal expenses for the purpose of business transfer would not justify the claim. As regards the payments made to M/s PKP Consultants and M/s AZB & Partners is concerned, the CIT(A) has categorically observed that the Assessing officer had verified from the above parties. The Ld. CIT(A) has categorically stated that the expenses claimed by the assessee have nothing to do with the transfer of the business of the assessee to his successor company. There is not material on record to controvert the findings of the lower authorities. At this stage also, no material was brought on record to show that these expenses were incurred in connection with transfer of the business of the assessee to the successor company. - Decided against assessee.
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2015 (10) TMI 2701
Revision u/s 263 - whether the interest earned from fixed deposit was to be assessed under the head “Income from other sources “ or as “Business Income” - Held that:- CIT in his order dated 19th March 2013 passed u/s 263 of the Act has held that the issue is not free from doubt that the income earned by the assessee company from fixed deposits kept with the banks could be assessed as ‘Income from other sources’ and the AO to re-decide the issue as to whether the interest income earned from fixed deposit with bank is to be assessed under the head ‘Income from other sources’ or as ‘Business income’ clearly reveals that the CIT instead of giving final finding on this issue observed that the income earned by the assessee company from the fixed deposit with bank could be assessed as ‘Income from other sources’ as matter is not free from doubt itself shows that there is no finding or adjudication by the CIT and his observations are based on mere suspicion and are uncertain .
Yet a direction was issued to the AO to carry out fresh inquiries to do the exercise once again and decipher whether income earned from fixed deposit with bank by the assessee company could be assessed under the head ‘Income from other sources’ , thus CIT was unsure whether the treatment meted out by the assessee company in treating the said income from interest on FDR with bank as ‘Income from Business’ is right or wrong which does not show that the finding as arrived at by the AO is erroneous and hence the order of CIT does not meet the requirement of Section 263 of the Act. Our view is fortified by the judgment of Hon’ble Delhi High Court of Globus Infocom Ltd. v. CIT (2014 (9) TMI 18 - DELHI HIGH COURT) and also CIT v. Gabriel India Limited (1993 (4) TMI 55 - BOMBAY High Court)
Thus set aside to the file of the AO to re-decide the issue as to whether the interest income earned from fixed deposit with bank is to be assessed under the head ‘Income from other sources’ or as ‘Business income’ is unsustainable in law and is set aside and the assessment order of the AO dated 08th October 2010 passed u/s 143(3) of the Act is restored . We order accordingly.
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2015 (10) TMI 2700
Deduction u/s 80HHC on DEPB benefits - Condonation of delay - Held that:- The totality of facts, clearly indicates that the assessee took a conscious decision firstly, not to file the appeal against the order of the ld. First Appellate Authority and thereafter took a decision to file the appeal. It is not the case of delay which was beyond the control of the assessee. So far as, the affidavit is concerned, it is a self serving document and the assessee has not explained satisfactorily the reason of delay in filing the appeal. The assessee was wilfully negligent or irresponsible in taking a decision, thus, the huge delay cannot be condoned.
We are conscious of the fact that technicalities should not come in the way of substantial cause of justice but in cases, where the delay was beyond the control of the assessee or some genuine difficulties hindered his smooth way. As discussed earlier, it is clear cut case of conscious decision, thus, we find no merit in the self made story of the assessee, therefore, on this issue, we are not agreeing with the admission of this appeal, thus, the delay is not condoned, therefore, the appeal is dismissed.
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2015 (10) TMI 2699
Miscellaneous application - Held that:- Miscellaneous application filed by the applicant before the Tribunal is pending adjudication before the Tribunal since 2009. According to the learned counsel for the applicant, the outcome of the miscellaneous application would have a direct bearing on the present appeal. Moreover, in any case pendency of the present appeal is no reason for the Tribunal not to proceed further with the application. The court is, therefore, of the view that there is substance in the grievance voiced in the application and that the Tribunal is not justified in not proceeding with the application.
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2015 (10) TMI 2698
Corrigendum is being issued to correct the inadvertent typographical error in mentioning the assessment year. In para 1 at page 2, the assessment year has been wrongly mentioned as ‘assessment year 2008-09’, the same may be read as ‘assessment year 2009-10’.
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2015 (10) TMI 2697
Taxability of capital gains – STCG OR LTCG – booking rights to the apartment accrued to the assessee on the date of application for allotment/confirmation of allotment or on the date of execution of the agreement to sell i.e. the buyer’s agreement – Held that:- No legal and valid ground for interference. The Special Leave Petition is dismissed. HC order confirmed [2014 (3) TMI 474 - DELHI HIGH COURT]
HC has held that the date of acquisition of the capital asset must be considered the date of signing of said agreement i.e. 4.11.2004 – thus, the capital asset in the form of these rights was held for a period of 35 months and 28 days, i.e. a short-term capital asset thus rendering the profits from the transfer of this capital asset taxable as short-term capital gains.
It is incorrect to say that the assessee had no right or interest in the property until the completion of payment of all instalments under the agreement as the assessee was a beneficial owner from the date of signing the agreement, having been put in possession of the property as of that date - Section 2(42A) of the Act only uses the term “held” and not “owned”, thus indicating that a capital asset need not only refer to full title over any property – Decided against Assessee.
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2015 (10) TMI 2696
Offence under Section 138 of NI Act - Held that:- Nothing shown by complainant of debt paid, stamp duty and of the legal fees and not produced any agreement as to the arrangement thereby the presumption in favour of the complainant under Section 139 that could be drawn as per the law not drawn as complainant being an advocate has not proved the debt amount payable to him by accused and engaged him as lawyer to conduct the case and thereby the finding of the trial Court does not suffer for any interference that too as per the settled law, the appellate Court must be slow in reversal of trial Court’s judgment. Infact from its proposition, there is no conclusive finding laid down on presumption under Section 139 cannot be drawn if the cheque issued by the client to the advocate towards fees and expenses, but for saying on the factual matrix of no agreement filed and not proved by the advocate of what are the expenses besides what is the fees due.
There is also not decided as to only advocate fees rules is the yardstick and beyond that no fees to be claimed. It is not even decided whether any such agreement under Contract Act is unenforceable and if so on what criteria. Thereby the decision noway helpful at this stage in seeking to quash the proceedings, but for at best of use before the trial Court as part of any defence version in discharging the burden by accused under reverse onus clause. Having regard to the above, this Court cannot go into the disputed factual aspect to quash the C.C. proceedings but for left open to the both sides to agitate before the trial Court, in view of the matter to be decided by trial Court and on the limitation against this Court in a quash petition in going into the detailed factual disputed aspects. Thus, none of the observations herein shall prejudice any of the rights of the parties particularly of the accused in defence before the trial Court, for disposal of the case on merits after full dressed trial.
Accordingly, the Criminal Petition is disposed of. The interim stay passed seizes its force for the trial Court to proceed with the trial for disposal on merits.
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2015 (10) TMI 2695
Addition on account of short credit in rental income - CIT(A) deleting the addition in violation of Rule 46A of the I. T. Rules - Held that:- We find that the total debit transactions shown in the ledger account of Naresh Kumar & Co. Pvt. Ltd. was ₹ 27,67,094/-, which was wrongly bifurcated by the auditor into rent at ₹ 23,50,621/- and coordination activities at ₹ 4,16,473/-. Similar debit transactions of the ledger account have been reflected by the auditor as rental receipts. From these documents the assessee has clearly reconciled the discrepancy. Since, these documents were not placed before the AO and were placed before the CIT(A) for the first time, we are of the considered view that let this issue be examined by the AO and after verifying these documents he will adjudicate the issue. Accordingly, this issue of revenue’s appeal is set aside to the file of AO. Similar are the facts in AY 2007-08 and details were filed by assessee before CIT(A) for the first time, hence, for that reason the issue in this year also is set aside to the file of AO. Therefore, the issue of both the revenue’s appeals is allowed for statistical purposes.
Addition made on account of interest paid on loan - CIT(A) deleting the addition in violation of Rule 46A of the I. T. Rules - Held that:- We find that the claim of the assessee before CIT(A) was that this interest was paid on account of acquisition of flat at 9/1, Middleton Street on 31.03.2003 from Tata Iron & Steel Co. Ltd. As per the claim of the assessee, this property was acquired by taking a loan of ₹ 1 cr. from Standard Chartered Bank and claimed the interest relating to premises as allowable u/s. 36(1)(iii) of the Act since interest paid on asset which is being used as business asset is allowable as deduction. We find that the assessee is unable to bring the documents before the AO during the course of assessment proceedings but he subsequently produced these documents before CIT(A) for the first time and CIT(A) has also not referred these documents to the AO for verification. In terms of the above, we are of the view that the interest is paid for acquisition of business asset and the same is allowable but subject to verification of the AO. Accordingly, this issue is also set aside to the file of AO for verification. Therefore, this issue of both the revenue’s appeal is allowed for statistical purposes.
Disallowance on account of depreciation on house property - property was not put to use during the year - Held that:- Before us it was explained that the mode of computation of depreciation allowable under the Act had been shifted to 'Block of assets' concept, whereby the identity of an individual asset is completely lost. Now all assets having same classification and rate of depreciation would be clubbed together and the depreciation is to be computed on the entire block without distinguishing the same with reference to actual use, It may so happen that the asset may be in use but the value may be 'NIL' for reason that it's WDV is adjusted against the sale proceeds. Thus there is no provision in the Act which discriminates the allowability of depreciation on fixed assets on the basis of its use or any restriction had been provided in the statute as in the case of section 37(4); which has been deleted. Accordingly, we are of the view that the depreciation cannot be disallowed.
Deemed dividend addition u/s 2(22)(e) - Held that:- We find that, admittedly, Naresh Kumar & Co. Pvt. Ltd. has not given any loan to the assessee company even otherwise the balance arose due to transaction of purchase and sale of shares between assessee and Naresh Kumar & Co. Pvt. Ltd. No money has been advanced by Naresh Kumar & Co. Pvt. Ltd. to assessee. From the shareholding pattern it is also clear that the assessee is not a shareholder in Naresh Kumar & Co. Pvt. Ltd., which is the primary requirement for treating any loan as deemed dividend u/s. 2(22)(e) of the Act.
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2015 (10) TMI 2694
Reopening of assessment - Addition u/s. 69 - Unexplained Investment - Held that:- AO had issued notice without proper recording of satisfaction and hence reopening of assessment is bad in law. Under the circumstances the proceedings initiated by the AO under section 148 is bad in law. - Decided in favour of assessee.
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2015 (10) TMI 2693
Issues:
Challenging the validity of proceedings under section 153C of the Income Tax Act.
Analysis:
The appeals were filed by the Revenue against the order of the Ld.CIT(A) for the A.Y. 2003-04 to the A.Y. 2008-09. The search and seizure operation under section 132 of the Act in the case of certain individuals led to proceedings being initiated against the assessee company under section 153C of the Act. The assessee challenged the legality and validity of these proceedings, specifically focusing on the absence of a mandatory satisfaction note recorded by the Assessing Officer (A.O.) of the searched party. The contention was supported by replies obtained under the RTI Act, confirming the non-existence of a satisfaction note by the A.O. of the searched party. The absence of this satisfaction note, as required by law, was crucial for the A.O. of the assessee to assume jurisdiction under section 153C of the Act.
Precedents and Judgments:
The assessee relied on various judgments to support their argument, including cases like Friends Clearing Agency P.Ltd., Raj Enterprises vs. ITO, and others. Additionally, the Hon'ble Jurisdictional High Court's judgment in the case of P.R.CIT-Central II vs. Aakash Arogya Mandir P.Ltd. was cited, emphasizing the importance of recording satisfaction by the A.O. of the searched person even in cases where the A.O. is the same for both the searched person and the assessee. The Court highlighted that satisfaction must be recorded separately for each entity.
Decision:
In line with the jurisprudence and legal requirements, the Tribunal quashed all assessment orders and dismissed the appeals filed by the Revenue. The Cross Objections of the assessee were allowed, leading to the dismissal of all Revenue appeals. The judgment was pronounced on 29th October, 2015, in favor of the assessee based on the non-compliance with the legal requirement of recording satisfaction by the A.O. of the searched party.
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2015 (10) TMI 2692
TPA - selection of comparable - Held that:- Assessee is into marketing support services thus companies functionally comparable with that of assessee need to be deselected from final list of comparability.
Claim of deduction u/s 10B in respect of export incentives - Held that:- The provisions of sub-section(4) of section 10B of the Act mandate that deduction under that section shall be computed by apportioning the profits of the business of the undertaking in the ratio of export turnover by the total turnover. Thus, even though sub-section(l) of section 10B refers to profits and gains as are derived by a 100% EOU, the manner of determining such eligible profits has been statutorily defined in sub-section(4) of that section. Both sub-sections (1) and (4) are to be read together while computing the eligible deduction u/s 10B of the Act. We cannot ignore sub-section (4) of section 10B which provides specific formula for computing the profits derived by the undertaking from export. As per the formula so laid down, the entire profits of the business are to be determined which are further multiplied by the ratio of export turnover to the total turnover of the business. In case of Liberty India [2009 (8) TMI 63 - SUPREME COURT] the Hon. Supreme Court has dealt with the provisions of section 80IA of the Act wherein no formula was laid down for computing the profits derived by the undertaking which has specifically been provided under sub-section (4) of section 10B while computing the profits derived by the undertaking from the export.
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2015 (10) TMI 2691
Reward Scheme - evasion and theft of taxes by M/s Cairn Energy Private Limited - the decision in the case of Kishor Gordhnsing Raghuwanshi Versus Secy., Ministry of Peteoleum & Natural Gas [2014 (4) TMI 1196 - BOMBAY HIGH COURT] contested, where it was held that the claim of petitioner for reward being highly disputed, it cannot be allowed - Held that: - the decision in the above case upheld - SLP dismissed.
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2015 (10) TMI 2690
Qualification for tenders - Mode of depositing payment of EMD - disqualification only on account of tendering of EMD through FDR - Held that:- The petitioners never intended to participate in the tender process without payment of EMD. Only the mode of depositing such amount was the cause of some confusion. As noted above, such confusion was possible on account of the inadvertent error on the part of respondent No.2 Municipality. Bona fides of the petitioners can be judged from the fact that they did deposit the entire amount; the mode alone being not to the satisfaction of the Municipality. We do not at all dispute the authority of the Municipality to insist on collecting the EMD in a particular mode and no other. If the issue was as clear as that, the petitioners could not have sought qualification without fulfilling such requirement in the manner insisted by the Municipality. However, when we find that ample confusion was possible that too, due to the conditions prescribed by the Municipality and when we also find that the condition of depositing EMD was satisfied, though the mode of such deposit, due to peculiar facts, varied from that specified in the tender conditions, we do not find that the action of the Municipality disqualifying the petitioners was justified.
We have proceeded on the basis that the petitioners were disqualified only on account of tendering of EMD through FDR.
In the result, respondent No.2 Municipality shall consider the petitioners qualified for being considered in the tenders in question, of course, subject to fulfillment of all other requirements. Their financial bids would be opened and would be considered in competition with other qualified contractors.
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2015 (10) TMI 2689
Scheme of Arrangement in the nature of Demerger - Held that:- Having heard the learned Advocate for the applicant and having perused the record, it appears to the Court that consent of parent holding company being the only shareholder of the applicant Company has been obtained. In view of the above, the meeting of the shareholders of the applicant company is ordered to be dispensed with. It is further ordered that this being the resulting company, meeting of the creditors is ordered not to be held.
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2015 (10) TMI 2688
Scheme of Arrangement in the nature of demerger - Held that:- Upon hearing the learned Advocate and upon perusing the affidavit dated 26.09.2015 filed in support of the judges’ summons for direction, with other relevant annexures attached in support of the contents of the affidavit filed by the deponent and copy of the proposed scheme of arrangement, it is ordered that meeting each of the Equity Shareholders, Secured Creditors and Unsecured Creditors of the applicant Company shall be convened adhered to with provisions of notice, proxy, followed.
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2015 (10) TMI 2687
Constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 as also, that of the National Judicial Appointments Commission Act, 2014 - whether primacy of judiciary and absence of Executive interference in appointment of judges is part of such basic structure? - Held that:- Once the constitutional validity of Article 124A(1) is held to be unsustainable, the impugned constitutional amendment, as well as, the NJAC Act, would be rendered a nullity. The impugned Amendment and the Act are struck down as unconstitutional. Pre-existing scheme of appointment of judges stands revived. The matter be listed for consideration of the surviving issue of grievances as to working of pre-existing system.
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2015 (10) TMI 2686
Rectification of Mistake - Held that: - It is pertinent to state that Tribunal can rectify any mistake apparent on record in the said order. Appellant claiming to reconsider the citations and also to draw findings on their contention amounts to seeking revisit the facts and findings of the Tribunal’s order dated 20-11-2014 which amounts to review of the order and there is no power vested with Tribunal to review its order.
Hon’ble Supreme Court in the case of CCE v. RDC Concrete (India) Pvt. Ltd. [2011 (8) TMI 25 - SUPREME COURT OF INDIA] clearly held that re-appreciation of evidence done by CESTAT cannot be considered as rectification of mistake and held that the ROM order is bad in law and quashed the order.
The Hon’ble Supreme Court decision in the case of CCE, Calcutta v. A.S.C.U. Ltd. [2002 (12) TMI 87 - SUPREME COURT OF INDIA], wherein the Apex Court held that any decision on debatable point of law cannot be treated as ‘mistake apparent from record’.
There are no apparent and manifest mistake in the Tribunal’s final order so as to exercise the powers to recall or modify the Final Order No. 40828/2014, dated 20-11-2014.
ROM application rejected.
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