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Showing 161 to 180 of 1287 Records
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2014 (11) TMI 1131
Failure and neglect to hold the Annual General Meeting within the prescribed period - offence under Section 166(1) of the Companies Act 1956 - liability of petitioner as one of the director of the company - Held that:- As rightly contended by the learned counsel for the petitioner, it is only specifically stated that the petitioner who is accused No.3 in all the above said cases is only a Director of the Company.
Nowhere it is stated what role that has been given to the petitioner in the Company, what are his responsibilities and whether the Board has entrusted any of the responsibilities upon him and that he has committed any default under the above said specific provisions. In the absence of such elucidation of facts in the complaint, it cannot be said that the petitioner is liable for the prosecution merely because he is one of the Directors of the Company. Therefore, I am of the opinion that in none of the complaints there is any allegation made particularly against this petitioner that he has committed any default as stated in the above said four complaints. Therefore the complaints alleged against this petitioner, particularly his default is meritless and no prosecution can be continued against this man. Otherwise it would amount to abuse of process of Court. Therefore, the above said proceedings are liable to be quashed.
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2014 (11) TMI 1130
Excess value of stock - suppression of purchases or sales - Held that:- The addition on account of difference in stock can be made only on the basis of adequate material, but not arbitrarily. Admittedly, there was a difference between the value of stock declared to the bank and the Assessing Officer.
There was no dispute that the asssessee was maintaining books of accounts on day to day basis. The purchases and sales as on 31.3.2007 are supported by vouchers and the Assessing Officer had not pointed out any suppression of purchases or sales. Therefore, we find Ld. CIT(A) has rightly deleted the adhoc addition of ₹ 1,00,06,656/- made by the AO, which does not need any interference on our part, hence, we uphold the order of the Ld. CIT(A). - Decided in favour of assessee.
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2014 (11) TMI 1129
Appeal is admitted and to that extent. It is admitted on the following substantial question of law:
“Whether on the facts and circumstances of the case and in law, the Tribunal was justified in deleting the disallowance made under section 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules?”
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2014 (11) TMI 1128
Penalties - separate identity of proprietor and sole proprietory concern - Held that: - penalties have been set aside because of the fact that this sole proprietary concern has been already penalized. Therefore, the sole proprietor need not pay penalty separately - appeal dismissed - decided against Revenue.
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2014 (11) TMI 1127
Maintainability of Application under Order XXII Rule 10 C.P.C. - Held that:- In the present case, the plaintiff-respondent, admittedly, has transferred his rights during the pendency of appeal. Therefore, it was always open to subsequent transferee to seek leave of the Court to prosecute the matter by moving an application under Order XXII Rule 10 C.P.C.
The petitioner has not only filed application under Order 1 Rule 10, but contested it and it is not the case where he ever took the stand that provision was wrongly mentioned by petitioner or his counsel. No such case was pleaded either before the Court below or even before this Court. Under Order 22 Rule 10 CPC, if the petitioner would have filed application, the same was liable to be considered by Court in order to grant leave in its discretion to petitioner, being subsequent transferee lis pendens, to continue proceedings from the stage he has joined, in place of original party who has transferred property to him. In that view of the matter, the petitioner would have been bound by stand taken by transferor/original party. Therefore, the proposition as above in my view has no application.
Be that as it may, the discussion made above makes it very clear that petitioner is not without any remedy but what he has been pursuing uptill now, was not in accordance with law. It is always open to petitioner to seek leave of the Court for prosecuting the case by submitting an application under Order 22 Rule 10 CPC which would then be considered by Court concerned in the light of observations made above and in accordance with law, but it cannot be doubted that his application under Order 1 Rule 10 CPC was clearly impermissible and has rightly been rejected by the Court below.
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2014 (11) TMI 1126
Application for recusal - company came to know the fact that the case had already been discussed with the Judge by the Revenue - the decision in the case of M/s COASTAL ENERGY PVT LTD AND OTHERS Versus COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX [2014 (8) TMI 246 - CESTAT BANGALORE] contested - Held that: - delay condoned.
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2014 (11) TMI 1125
Creation of provision of obsolescence in inventories - Held that:- Accounting Standards notified under Section 145(2) in particular Accounting Standard-I categorically states that the accounting treatment and presentation in financial statements of transactions should be covered by a substance and not merely by legal form. Further Section 145(A) provides notwithstanding anything to the contrary contained in section 145, the valuation of purchase and sale of goods and inventory for the purposes of determining the income chargeable under the head "Profits and gains of business or profession" shall be–(a) in accordance with the method of accounting regularly employed by the assessee.
Therefore, what is to be seen is how the assessee is maintaining the accounts regularly in the course of his business and the accounting treatment and presentation of financial statement of transactions should be covered by the substance and not merely by the legal form. It is the principle which is to be kept in mind by both the appellate authorities. The aforesaid material clearly demonstrate instead of showing cost price as nil in the profit and loss account, cost price of the items are given in profit and loss account and a provision is made for obsolescence in inventory showing that the market value is nil and that is the mode in which the assessee was also following even for the previous years. - Decided in favour of the assessee
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2014 (11) TMI 1124
Claim of provision of “Mark-to-Market” on trading of derivative instruments in the profit and loss account - Held that:- The Registrar (Judicial)/Registrar, High Court, Original Side, Bombay to ensure that the original record in relation to this Appeal is summoned from the Tribunal and offered for inspection of the parties. This paper book is treated sufficient for the purpose of admission of this Appeal. However, the Registry must further ensure preparation of complete paper book in accordance with the Rules.
The Registry in the first instance must send intimation of admission of this Appeal enclosing therewith a copy of this order so as to enable the Tribunal to act accordingly.
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2014 (11) TMI 1123
Addition u/s 69 - Held that:- From the assessment order as well as the order of the Ld.CIT(A), we find no such opportunity whatsoever was granted to the assessee to cross examine Mr. Soni. From the seized documents, we find at one place it is written “Kajal’s Rashmi G” (pages 33 & 34 of paper book). Similarly, at another place, it is written “Rashmi Gandhi G.Kejals” in Hindi. Similarly, in another place, it is written “Kejals Ushicover” partly in English and partly in Hindi at page 62.
From the above, it is seen that the seized document clearly show different names. The submission of the Ld. Counsel for the assessee that the assessee does not deal with Pillow covers (i.e. Ushicover in Hindi) could not be controverted by the Ld. Departmental Representative. The Assessing Officer has also not summoned Mr. Rashmikant Gandhi to find out the veracity of the submission of the assessee firm that it has not lent any money to Mr. Sony. The notings in our opinion, do not clearly indicate that the firm has advanced any money. It may at best be that of one individual Mr. Rashmi Gandhi in whose hands addition could have been made. However, the Assessing Officer has not examined that person. Thus we hold that no addition is called for in the instant case.
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2014 (11) TMI 1122
Entertaining the additional ground of appeal regarding the legality of intimation u/s. 143(1)(a) Held that:- We do not find that the Tribunal has committed any error in entertaining the additional ground of appeal regarding the legality of intimation u/s 143 (1)(a) of the Act. We therefore answer question no. 1 against the assessee and in favour of the revenue.
Cash seized adjustment against the advance liability - Held that:- The cash seized from the assessee firm, on an application given by the assessee before the end of the previous year relevant to the assessment year 1993-94, ought to have been adjusted against the liability of advance tax for the A.Y. 1993-94 by the revenue subject to payment under section 234(B) & (C) of the Act. In the present case, we do not find that assessee had any intention of shirking its advance tax liabilities and considering the provisions of law, the revenue ought to have considered the assessee’s application which was made well in point of time subject to provisions of sections 234 (B) and (C) of the Act. We therefore answer question in favour of the assessee
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2014 (11) TMI 1121
Deduction u/s 80IA - whether CIT(A) has erred in allowing deduction u/s 80IA by treating each of the assessee’s windmills a separate unit for granting additional depreciation benefit - Held that:- As decided in Commissioner of Income Tax v. Hi Tech Arai Ltd [2009 (9) TMI 60 - MADRAS HIGH COURT] as far as application of section 32(1)(iia) is concerned, what is required to be satisfied in order to claim the additional depreciation is that the setting up of a new machinery or plant should have been acquired and installed after March 31, 2002 by an assessee, who was already engaged in the business of manufacture or production of any article or thing. The said provision does not state that the setting up of a new machinery or plant, which was acquired and installed up to March 31, 2002, should have any operational connectivity to the article or thing that was already being manufactured by the assessee. Therefore, the contention that the setting up of a wind mill has nothing to do with the power industry, namely, manufacture of oil seeds, etc., is totally not germane to the specific provision contained in section 32(1)(iia) of the Act.." - Decided against revenue
Disallowance u/s 14A r.w.r 8D(2)(ii) - Held that:- We find that neither the Assessing Officer nor the CIT(A) have specifically dealt with the assessee’s interest accounts statement reproduced hereinabove. The Assessing Officer’s findings alleging diversion of interest bearing funds prove to be contrary to the case record. Thus, we observe that the impugned disallowance is not sustainable and accept the assessee’s arguments. - Decided against revenue
UPS device treated as a part of computer entitled for 60% depreciation. Sundaram Asset Management Co. Ltd. Versus DCIT [2014 (2) TMI 224 - ITAT CHENNAI ]
Disallowance of expenditure pertaining to consignment sales - Held that:- The assessee has duly deducted TDS on these payments for claiming the same as expenditure. The authorities below observe that in assessment years 2006-07, 2007-08 and 2008-09, the assessee had contested non-deductibility of TDS and preferred appeals against the disallowance which have not become final. We do not agree with this reasoning. The fact remains that the assessee in the relevant previous year has complied with the TDS provisions before making payments for the consignment sales. In these circumstances, we accept the assessee’s contentions and hold that once TDS has been duly deducted, its mere action of pursuing appeal in earlier assessment years does not bar it from claiming the payments as expenditure. - Decided against revenue
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2014 (11) TMI 1120
Assumption of jurisdiction u/s 153C - satisfaction note - Held that:- CIT(A) correctly upheld the assumption of jurisdiction following the order of the coordinate bench in the case of Piyush Infrastructure Pvt. Ltd. for A.Y. 2008-09 [2012 (10) TMI 1033 - ITAT DELHI] wherein it was held that satisfaction was duly recorded u/s 153C of the Act on the basis of the documents seized and noted in the order of assessment.- Decided against assessee.
Addition of share capital received by the assessee company - Held that:- We find that in the instant case, share capital was received from Sh. Arun Bansal and Vijay Gupta of ₹ 50,000/- each aggregating to ₹ 1 lakh. Pursuant to the search on 21/02/2008, Sh. Arun Bansal categorically asserted that he was merely a name lender and no amount was actually invested by him, no confirmation or any other evidence has been placed on record to discharge the burden. The contention that said person was subscriber to the memorandum of Association has been correctly rejected by the AO, by observing that said subscription only shows the desire to make investment, but does not confirm investment. - Decided against assessee.
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2014 (11) TMI 1119
Computation of capital gain - Held that:- As upheld the action of the Assessing Officer that the assessee has treated the purchase of the plot as an investment. He has sold his investment in three parts. With regard to earlier two sale transactions, he has already offered the income under the head “capital gain” but later on revised his stand. This revision has been made after the survey operation. It was not a venture for business purpose. Therefore, the assessee cannot be permitted to claim that he has completed the project of development in this year and income is to be recognised in this year. The loss, if any, though represent to earlier years, not to this year. More so, if the rates for determining the sale consideration for the purpose of section 50C is to be seen, then it would suggest that there is no loss. The loss has been computed by taking the sale consideration at ₹ 902/- per sft and the cost of acquisition at ₹ 1085/- per sft. We do not know the guideline value of the property on 26.03.2007 when the assessee sold two pieces of land. If it was more than ₹ 1085 per sft, then there could not be any loss and for the sake of arguments, contention of the assessee are to be accepted in this year, then ₹ 1400/- per sft is to be applied on earlier two sale deeds also for the purpose of computation of capital gain. Then again there would not be any loss. Therefore, we do not find any merit in the contentions of the learned Counsel for the assessee, consequently appeal of the assessee is dismissed.
Miscellaneous receipts - Held that:- On verification of the facts and circumstances found that this sum on miscellaneous receipts included in the provisional P&L a/c at the time of survey has been included in the total amount offered by the assessee at ₹ 3,15,00,603/-. The learned CIT (A) has reproduced the list of the persons to whom these miscellaneous sundry credit represent. After going through the findings of the CIT (A) in Para No.4.5, we are of the view that the assessee has duly explained the miscellaneous receipts accounted during the course of survey and pointed out that these receipts have been included in the total amount offered by the assessee. The learned DR could not bring any material to our notice pointing out any factual error in appreciation of the facts by the learned CIT (A). Since the assessee himself has accounted those miscellaneous receipts in the total amount offered during the course of survey, no separate addition can be made. The learned CIT (A) has rightly deleted the addition
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2014 (11) TMI 1118
Profit on sale of shares - liable to be taxed as capital gain OR business income - nature of income - Held that:- The investments held by the assessee consisted of investment in quoted shares of ₹ 6.60 crores and investment in unquoted shares and shares warrants of ₹ 11.14 crores which were valued at cost. Similarly in assessment year 2007-08, assessee was holding quoted shares at cost of ₹ 7.10 crores and unquoted shares of ₹ 2.26 crores. The disclosure of the investment in the accounts is a material fact to ascertain the intention of the assessee to hold the shares as "investment" or "stock in trade". In the case of Gopal Purohit (2010 (1) TMI 7 - BOMBAY HIGH COURT ), the Tribunal held that presentation in the books of accounts is most crucial source of gathering intention of the assessee with regard to the nature of transaction. It is also not the case of AO that the shares which were held as investment in earlier assessment years i.e. 2005-06, 2006-07 & 2007-08 and accepted by the department as investment were converted into stock in trade so as to attract the provisions of Section 43(5) of the Act. Since the shares held as investment in earlier years and also accepted by the department as such, the assessee having not converted its shares in "stock in trade", there was no reason to assess the profit arising out of sale as business income in place of capital gains.
Addition u/s 14A - Held that:- Assessee has not invested interest bearing funds in the shares and securities in terms of detailed discussion made hereinabove. Since no interest expenditure was incurred during the year in respect of additional investment put in the shares which were fully financed out of the sale proceeds of shares held as long term capital investment and same also offered as long term capital gains, there is no reason for disallowance of interest expenditure by invoking provisions of Section 14A read with Rule 8D.
With regard to the other expenditure debited in the profit and loss account, we found that common expenditure have been debited which are in the nature of insurance expenses, bank charges, audit fees, repairs and maintenance, stamp duty, etc., which amounts to ₹ 65,925/-. Since this expenditure was also attributable for the earning of exempt income, we direct the AO to confirm the disallowance of these expenditure of ₹ 65,925/- u/s.14A.
Nature of loss - notional loss or business loss - Held that:- After considering the actual payment made for shares, the CIT(A) held that derivative transactions through a recognized stock exchange have been taken out of the purview of the speculation transaction u/s.43(5), after amendment w.e.f. 1-4-2006. In the instant case, relevant assessment year under consideration is 2008-09, to which amended provision is applicable. As in the case of Bharat Ruia (HUF) [2011 (4) TMI 37 - BOMBAY HIGH COURT] also considered the amended provisions and held that derivative transactions prior to amendment would come within the ambit of speculation transactions u/s.43(5) of the Act. A categorical finding has also been recorded by the CIT(A) to the effect that these transactions have been carried out through recognized stock exchange, accordingly, profit/loss on such transactions will be treated as normal business profit/loss and it cannot be treated as notional loss. We do not find any reason to interfere in the findings recorded by the CIT(A) for treating such loss as a normal business loss instead of AO's action of treating the same as notional loss.
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2014 (11) TMI 1117
Duty Drawback - All Industry Rate of 1% available to petitioner - withholding of AIR drawback to Soyabean Meal (SBM) exporters - the case of petitioner is that Drawback on SBM export was towards customs portion and benefit u/R 18 or 19(2) of CER, 2002 was towards Central Excise portion therefore, there cannot be any reason to withhold Customs drawback if the manufacturers had claimed rebate of Central Excise duty or procured Central Excise duty free inputs - Circular No. 35/2010, dated 17-9-2010 clarified that both the benefits i.e., AIR drawback @ 1% and the benefit of Rule 18 or 19(2) of the Central Excise Rules, 2002 are simultaneously available - whether the Circular No. 35/2010, dated 17-9-2010 is prospective or retrospective in nature (a) when the language used in earlier Notification No. 81/2006; 68/2007 and 103/2008 and the language used in subsequent Notification No. 84/2010 is same and (b) when the circular being a benovolent circular has prospective effect or retrospective effect?
Held that: - As per Condition No. 7(f) of N/N. 81/2006 the rates of drawback specified in the said Schedule shall not be applicable to export of the commodity or product if such commodity or product is manufactured or exported in terms of sub-rule (2) of Rule 19 of the Central Excise Rules, 2002 - the notification denies the drawback of the entire schedule (whether Excise or Customs components), if the facility of Rule 19(2) of the Central Excise Rules, 2002 is availed. The said conditions are the prime requirement to get the commodity eligible for the drawback. In the case in hand, the Condition No. 7(f) debar the goods from the purview of the drawback if the said goods manufactured or exported availing facility of Rule 19(2) of Central Excise Rules, the drawback was not admissible to the said goods (SBM/DOC) manufactured availing facility of Rule 19(2) of Hexane and/or other materials procured duty free by them and used the same in the manufacture of DOC/SBM.
The simultaneous availment of drawback as well as Rule 19(2) was introduced by the respondent No. 2 by omission of Clause 8(f) of erstwhile Notification No. 103/2008 and the introduction of new Clause 9(b) in N/N. 84/2010 which was made effective from 20-9-2010 and explained the same in Circular No. 35/2010. Since the N/N. 84/2010 was effective from 20-9-2010 and the same cannot be given retrospective effect.
Notification dated 17-9-2010 is not merely clarify the position and make the issue explicit, which was implicit in the earlier notification nor the same would be applicable retrospectively. The question of giving retrospective effect to Notification dated 17-9-2010, does not arise when it is very clearly mentioned therein that the same shall come into force on the 20th day of September, 2010.
Petition dismissed - decided against petitioner.
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2014 (11) TMI 1116
Principles of natural justice - reimbursement of the expenses is not includible in the assessable value - Held that: - appellants have shown a deliberate behavior of evading service tax. In the stay application they make a mention of financial hardship but have provided no evidence thereof and they have also not explained as to how even if there is any financial hardship, that will fall in the category of undue financial hardship - appeal dismissed for failure of pre-deposit.
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2014 (11) TMI 1115
Maintainability of appeal - condition of pre-deposit not complied with - Held that: - In terms of the provisions of Section 129E of the CA, 1962, as amended by FA, 2014, the appellant has to make a pre-deposit of 7.5% of the penalty imposed, as a pre-condition for hearing of the appeal, which has not been done in the present case - as the appellant has not complied with the statutory requirement for hearing of the appeal, the appeal is dismissed as not maintainable.
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2014 (11) TMI 1114
Arbitration award - Held that:- Division Bench has interfered wrongly with the arbitral award on several counts. It had no business to enter into a pure question of fact to set aside the Arbitrator for having applied a formula of 20 months instead of 25 months. Though this would inure in favour of the appellant, it is clear that the appellant did not file any cross objection on this score. Also, it is extremely curious that the Division Bench found that an adjustment would have to be made with claims awarded under claims 2, 3 and 4 which are entirely separate and independent claims and have nothing to do with claims 12 and 13. The formula then applied by the Division Bench was that it would itself do “rough and ready justice”. We are at a complete loss to understand how this can be done by any court under the jurisdiction exercised under Section 34 of the Arbitration Act. As has been held above, the expression “justice” when it comes to setting aside an award under the public policy ground can only mean that an award shocks the conscience of the court. It cannot possibly include what the court thinks is unjust on the facts of a case for which it then seeks to substitute its view for the Arbitrator’s view and does what it considers to be “justice”. With great respect to the Division Bench, the whole approach to setting aside arbitral awards is incorrect. The Division Bench has lost sight of the fact that it is not a first appellate court and cannot interfere with errors of fact.
An argument was made before the learned Single Judge that there has been a duplication of claims awarded The Single Judge is clearly right. We have gone through all the 15 claims supplied to us and we find that none of these claims are in fact overlapping. They are all contained under separate heads. This argument, therefore, must also fail.
The appeal is, therefore, allowed and the judgment of the Division Bench is set aside. The judgment of the Single Judge is upheld and consequently, the Arbitral award dated 23rd May, 2005 is as a whole upheld
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2014 (11) TMI 1113
Sale of confiscated goods - Section 126 of the CA, 1962 - whether or not the sale was made contrary to the provisions or without any reasonable explanation was not gone into? - Held that: - the goods were sold in the time after the order of Commissioner (Appeals) but before expiry of the statutory period within which appeal could be preferred therefrom to the Tribunal by the petitioner as recorded in the impugned order - The direction in the impugned order stands confirmed to be complied with by the appellant within 12 weeks - appeal dismissed - decided against appellant.
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2014 (11) TMI 1112
Jurisdiction - restoration of CHA licence - Held that: - interest of justice would be served if the impugned order is set aside, which is operative within the Mumbai Commissionerate, the order and direction setting it aside would be subject to the proceedings that are pending before the Commissionerate of Customs at Thiruvananthapuram - The petitioner’s Customs House Agent Licence to stand revived and restored within Mumbai I, II and III Customs Commissionerates - petition allowed - decided in favor of petitioner.
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