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Showing 161 to 180 of 1831 Records
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2017 (5) TMI 1677
Termination of services of the petitioner by the Management of the College - HELD THAT:- Admittedly, the petitioner was working for a private College which is totally unaided. It is only affiliated to Chaudhary Charan Singh University, Meerut. The services of the petitioner have been terminated by the Management of the College. The College would not fall within the meaning of the State under Article 12 of the Constitution as such we are not inclined to entertain this petition.
Petition dismissed.
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2017 (5) TMI 1676
Depreciation @ 80% on Wind Turbine Machine - non segregating investment on building part and on electric item - whether depreciation @ of 80% is allowable on electrical fitting and building etc considering part of Wind Turbine Generator Machine? - HELD THAT:- Issue is squarely covered by decision of KK. ENTERPRISES [2015 (2) TMI 508 - RAJASTHAN HIGH COURT] as held that Civil construction and electric fittings, which have no use other than for the purpose of the functioning of the windmill would become closely interconnected and are part and parcel of the windmill and, therefore, liable for depreciation. Legislature has provided for higher rate of depreciation of 80 per cent on renewable energy devises including windmill and any specially designed devise, which runs on windmill. See CIT AHMEDABAD III Versus PARRY ENGINEERING AND ELECTRONICS P. LTD. [2014 (12) TMI 752 - GUJARAT HIGH ] - Decided in favour of assessee.
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2017 (5) TMI 1675
Claim of expenses on interest paid on delayed payment of TDS as business income - Interest paid on delayed payment of TDS - AO noted that this amount is incurred on delayed payment of TDS and TDS being tax on income and same cannot be allowed as business expenditure under section 37(1) - HELD THAT:- We find that the facts are undisputed that the assessee has claimed interest as expense incurred for delayed payment of TDS. We find that this interest is paid for default in respect to statutory liabilities and this interest cannot be treated as business expenditure under section 37(1) of the Act. We find no infirmity in the order of CIT(A) and hence, the same is confirmed. The appeal of assessee is dismissed.
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2017 (5) TMI 1674
Penalty u/s 271CA - non-collection of tax at source (TCS) u/s 206C - Whether assessee has committed default to collect the tax at source as required the provisions of Section 206C? - HELD THAT:- In THE COMMISSIONER OF INCOME TAX (TDS) -I, CHANDIGARH VERSUS M/S PUNJAB INFRASTRUCTURE DEV. BOAR [2017 (5) TMI 1672 - PUNJAB AND HARYANA HIGH COURT] As noticed that the revenue had filed the appeal against the pronouncements decision [2016 (12) TMI 1534 - PUNJAB AND HARYANA HIGH COURT] under Section 260A order was set aside and the matter was remanded back to the Tribunal for fresh decision. Accordingly, learned counsel for the revenue has stated that the order passed in the present appeals be also set aside and the matter be remanded to the Tribunal for fresh decision.
Present appeals deserve to be allowed as the Tribunal had adjudicated the appeal by relying upon its earlier decision as cited in para 3 above. Accordingly, the impugned orderspassed by the Tribunal in each case are set aside and the matters are remanded to the Tribunal for fresh decision after affording an opportunity of hearing to the parties in accordance with law.
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2017 (5) TMI 1673
Forfeiture of security deposit - time limitation - case of appellant is that neither the SCN nor the enquiry report and the impugned order were issued within time frame prescribed in the CHALR, 2004 - Held that:- The regulations contained in the CHALR have not been scrupulously followed by the original authority inasmuch as the SCN was issued after 240 Days from the date of the offence report and there after the impugned order was passed almost after 370 days from the time of such report. Thus, the provisions of CHALR in this case have not been strictly followed by the Department.
There is no merit in the impugned in so far as forfeiture of the security deposit and imposition of penalty on the appellant - appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1672
Penalty u/s 271CA - non-collection of tax at source (TCS) u/s 206C - Whether assessee has committed default to collect the tax at source as required the provisions of Section 206C? - HELD THAT:- As noticed that the revenue had filed the appeal against the pronouncements decision [2016 (12) TMI 1534 - PUNJAB AND HARYANA HIGH COURT] under Section 260A along with other connected appeals whereby the impugned order was set aside and the matter was remanded back to the Tribunal for fresh decision. Accordingly, learned counsel for the revenue has stated that the order passed in the present appeals be also set aside and the matter be remanded to the Tribunal for fresh decision after affording an opportunity of hearing to the parties in accordance with law. However, this prayer was opposed by the learned counsel for the respondents.
Present appeals deserve to be allowed as the Tribunal had adjudicated the appeal by relying upon its earlier decision as cited in para 3 above. Accordingly, the impugned orders dated 30.09.2015 passed by the Tribunal in each case are set aside and the matters are remanded to the Tribunal for fresh decision after affording an opportunity of hearing to the parties in accordance with law.
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2017 (5) TMI 1671
Treatment of corpus donation - application of income towards objects of the Trust - assessee has given donation to Tolani Education Society which has been claimed by the assessee as application of income towards the objects of the Trust - HELD THAT:- Similar issue in respect of donation being paid by the assessee trust to Tolani Education Trust was decided by this Tribunal in favour of the assessee [2013 (10) TMI 875 - ITAT MUMBAI]
Claim toward repairs and maintenance u/s. 24 in computing the income from house property let out by the assessee - Disallowance of claim of standard deduction on rental income @30% u/s. 24(a) - HELD THAT:- As decided in assessee own case [2013 (10) TMI 875 - ITAT MUMBAI] we confirm the order of the CIT(A) disallowing the claim of the assessee u/s. 24(a) of the Act. Thus, the ground taken by the assess fails.
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2017 (5) TMI 1670
Imposition of penalty - freight fraud - evasion of duty by fabrication of import documents - importer remitted the differential duty along with interest and penalty equal to 25% of the duty as per Section 28 (6) of the Customs Act, 1962 on being pointed out - Held that:- In Circular No.11/2016 dated 15.3.2016, the Board has clarified that if the duty is paid along with interest and penalty equal to 25% of the duty specified in the notice, then the proceedings against the importer as well as against the co-noticee shall stand concluded - the impugned order is not sustainable. - appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1669
Penalty u/s. 271D r.w.s. 269SS - Cash received from mother - whether taking cash from mother/parent out of business expediency can attract penalty u/s. 271D r.w.s. 269SS - HELD THAT:- Assessee being a layman was not aware of the provisions of the Act as such, the default, if any, was attributable to ignorance of statutory provisions of the act. The assessee’s case finds support from the decision of the Delhi Tribunal in the case of Farrukhabad Investment (I) Ltd. V. JCIT (2002 (3) TMI 216 - ITAT DELHI ) where the professional auditors, experts in the field of taxation, did not point out any violation of S. 269SS it was held that it would be too much to expect from the assessee to know these provisions and as such the penalty imposed was deleted considering ignorance to be a “reasonable cause”.
In the instant case also, the auditors did not point out any violation of S. 269 SS of the Act. In view of the above, we are of the considered opinion that this is not a fit case in which penalty u/s. 271D can be levied. The penalty so imposed by the Assessing Officer and sustained by the learned CIT(A) is hereby deleted. Therefore, the appeal of the assessee is allowed
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2017 (5) TMI 1668
Exemption under Section 54 - assessee handed over the physical possession of the property to the developer for joint development - proof of transfer within the meaning of Section 2(47)(v) - revised return filed to claim exemption under Section 54 - assessee is entitled for 70% of the constructed area and remaining 30% will go to the share of the developer - Since the project was not completed within a period of three years after entering into joint development agreement AO brought the entire capital gain for taxation - HELD THAT:- This Tribunal is of the considered opinion that when the assessee handed over the entire land on the basis of arrangement that the developer could retain 30% of land in proportionate to constructed area, there was transfer of property in the assessment year 2013-14.
The cost of 30% of undivided share of land would be the cost of 70% of constructed area at the rate of ₹ 9500/- per sq.ft. Since the assessee has not received any money from the developer, the entire fund has to be treated as investment in the construction by the developer. This Tribunal is of the considered opinion that it has to be construed that the assessee invested cost of 30% of undivided share of land for the construction. The cost of 30% of undivided share of land would be deemed to be invested and deposited with developer on transfer of 30% of undivided share of land to the developer, for the assessment year 2013-14. Since the cost of 30% share of undivided land was deemed to be invested with the developer for construction, this Tribunal is of the considered opinion that the assessee is eligible for exemption under Section 54 of the Act. - Decided against revenue
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2017 (5) TMI 1667
Rectification of mistake u/s 154 - AO withdrawing TDS credit in an order u/s 154 on the ground that corresponding income has not been offered for tax in the relevant assessment year - debatable issue -assessment completed u/s 143(3) - CIT-A confirmed AO order - HELD THAT:- As in the case of ACIT v. Peddu Srinivasa Rao [2011 (3) TMI 1495 - ITAT VISAKHAPATNAM] shows that the issue raised u/s 154 of the I.T.Act is a debatable one. For the aforesaid reasons, we are of the view that withdrawal of tax credit which was given in the assessment completed u/s 143(3) of the I.T. Act by resorting rectification proceedings u/s 154 of the I.T.Act is legally untenable and cannot be sustained.
TDS which is given due credit in this assessment year, the same should not be given credit during any other assessment year when income was offered for taxation - Decided in favour of assessee.
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2017 (5) TMI 1666
Gains earned from share transactions engaging PMS [Portfolio Management Service] - characterization of income - correct head of income - capital gain or busniss income - contention of the assessee is that the assessee has invested lump sum amount through PMS - HELD THAT:- Commissioner of Income Tax (Appeals) has accepted the contentions of assessee by following the order of Tribunal in the case of KRA Holding & Trading P. Ltd.[2011 (5) TMI 498 - ITAT PUNE] and ARA Trading & Investments P. Ltd. [2009 (8) TMI 815 - ITAT PUNE]. The assessee had availed discretionary Portfolio Management Services to manage its investment activities. Under such circumstances the discretion to invest in specific stock, the quantum of investment, time of investment /disinvestment is entirely of Portfolio Manager.
Similar issue had come up before the Co-ordinate Bench of the Tribunal in the case of Shri Apoorva Patni [2012 (9) TMI 828 - ITAT, PUNE] wherein after considering the decisions rendered in the cases of KRA Holding & Trading P. Ltd. Vs. Dy. Commissioner of Income Tax (supra) and ARA Trading & Investments P. Ltd. Vs. Dy. Commissioner of Income Tax (supra) held that the profit arising on investment carried out by the assessee through PMS does not result in gain assessable under the head business income. - Decided in favour of assessee.
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2017 (5) TMI 1665
Disallowance u/s 14A read with rule 8D(2)(iii) - set off suo moto disallowance by assessee - CIT(A) upheld the disallowance of administrative expenses made by the AO on investment in shares holding that the entire administrative expenses was incurred by the assessee for the purpose of investment in shares - HELD THAT:- The ground in present case is identical to the ground in the case of Cape Trading Pvt. Ltd. vs. ACIT, Mumbai (2015 (8) TMI 211 - ITAT MUMBAI) and the other appeals discussed in the foregoing paras. The co-ordinate Benches of ITAT Mumbai have already decided the identical issue in favour of the assessee. Following the decisions of coordinate Benches, we decide the sole ground of appeal in favour of the assessee and delete the disallowance made by the Assessing Officer.
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2017 (5) TMI 1664
Miscellaneous application u/s. 254(2) - Exemption u/s.11 denied - running of ‘Suguna Auditorium Hall’ is a business activity of assessee and not incidental to the main objective of the assessee - Application u/s. 254(2) as the A.R wanted to review the Order of Tribunal as denying exemption claim - HELD THAT:- Tribunal first meticulously mentioned the arguments of the learned AR for the assessee, the points raised by him then the relevant case-laws relied upon by the AR of the assessee. Thereafter, the Tribunal considered the same and passed a speaking order for not entertaining the claim of the assessee. While rejecting the claim of the assessee the Tribunal placed reliance on the judgement of Supreme Court and also Tribunal order. Thus, in view of our detailed discussion and applying the ratio of the decision of the Apex Court, we concluded that the CIT(A) is justified in rejecting the exemption u/s. 11 of the I.T. Act, 1961.
From the order of the Tribunal dated 29.06.2016, it is evident that the Tribunal considered the arguments of the assessee’s counsel as well as the ratio of the decisions of the Supreme Court elaborately discussing the same in the order. Hence, it cannot be said that the Tribunal has not considered the case-law cited by the learned AR for the assessee as alleged in the Miscellaneous Application. On the contrary, the Tribunal in the order, after taking note of the case-law relied upon by the parties, gave the findings.
Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts and Tribunals in the Indian Territory. The declaration of law is complete as soon as the judgement is pronounced. - Decided against assessee.
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2017 (5) TMI 1663
Assessment against non-existent amalgamating company - Assessment against company ceased to exist and non-existent - scheme of amalgamation conceived - jurisdictional defect - procedural irregularity curable u/s 292B - HELD THAT:- No hesitation in holding that the framing of assessment against a non- existing entity/person goes to the root of the matter and is a jurisdictional defect as there cannot be any assessment against a 'dead person'. Accordingly, the impugned assessment is bad in law and is liable to be quashed being void ab initio.
The facts of the present case are quite similar to the facts of the case in Spice Entertainment (2011 (8) TMI 544 - DELHI HIGH COURT), wherein as held that framing of assessment against non-existent entity/person goes to the root of the validity of the assessment which is not a procedural irregularity curable u/s 292B or under any other provision of the Act but it is a jurisdictional defect because there cannot be framing of any assessment order against a dead person or entity which is non-existent on the date of framing/passing assessment order. Thus hold that the assessment in the name of nonexistent amalgamating company having jurisdictional defect is not sustainable and therefore, we quash the same. - Decided in favour of assessee.
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2017 (5) TMI 1662
Condonation of delay in filing/re-filing appeal - Section 5 of the Limitation Act, 1963 read with section 151 of the Code of Civil Procedure - Held that:- Though, it has been alleged that the counsel despite several requests did not supply them the copies of the documents, still the appellant, which is a private limited company having highly educated businessmen running it, should have approached the court and find out the factual position and obtained the certified copies. The appellant company has always been either negligent in its approach or knowingly did not disclose the fact of their knowledge of decretal of the suit to avoid the decree or delay the payment of decretal amount. Even the complaint dated 05.11.2016 sent to the Chairman, Bar Council of India, does not reflects that their counsel stopped appearing w.e.f 10.11.2014 or they were falsely informed about the dismissal of the suit whereas in fact it was decreed. They have also not mentioned in the complaint that they were falsely informed by the counsel and did not supply them copies. In the complaint, it is reflected that they have started contacting the lawyer when the representative of the court visited them on 20.09.2016. Such negligent litigants are bound to suffer.
It appears that either the appellant company is concealing true facts of its knowledge of dismissal of the suit or they have been careless and negligent in pursuing their case in the court of law. Be that as it may, the appellant has failed to make out any justification for condonation of delay.
There is no infirmity in the impugned judgment and decree of the learned trial court - the appeal is dismissed with no order as to cost.
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2017 (5) TMI 1661
Oppression and mismanagement - HELD THAT:- It is not in dispute that in order to file a petition under sections 397/398 of Companies Act, 1956, one of prerequisites is that party is supposed to hold either not less than one hundred members of company or not less than one-tenth of total number of its members as prescribed under section 399.
As stated it is settled position of law that one has to satisfy requirement(s) of statute at the time of filing petition/application. The contention that shares totalling 4,23,250 as held by Smt. D. Umavathi (16th petitioner) should not be counted for the purpose of constituting minimum percentage , due to her death, is not at all tenable. Moreover, her legal heirs are admittedly petitioners in the Company petition. As stated supra, the Company is a closely held Company, and no issue of shares to public had ever taken place. Respondent Nos. 3 to 5 are neither shareholders nor directors as held supra. The petitioners are admittedly holding sufficient number of shares as per documents filed, and it was also examined by CLB at the initial stage itself. We are satisfied that powers of Attorney in question have been duly executed in accordance with law and the petition is properly instituted and it is maintainable.
Acts of oppression and mismanagement are not specifically defined in the Companies Act, and it should be inferred from facts of each case. In the instant case, the following acts constitute acts of oppression and mismanagement on the part of respondent Nos. 3 to 5 apart from others:
a. Acts of respondent No. 3 by promising several things for beneficial interest of Company and thereby forcing the second respondent deceitfully to enter into agreement dated 9.10.2003 and then did not comply with those terms, which ultimately ended in its termination, even though second respondent has no authority to enter into such an agreement;
b. Taking management of Company by Respondent No. 3 in an illegal manner by making nominal investments in it;
c. Filing of several civil and criminal cases on false allegations and applying illegal methods to run the Company, contrary to directions CLB , BIFR and Civil Courts ;
d. Taking so many decisions including increase of share capital of ₹ 11.30 crores basing on unenforceable agreement dated 09.10.2003, and fabricating fake balance sheets and allotment of shares out of such alleged increased share capital without receiving any consideration ;
e. Acts of oppression and mismanagement still being continued even though respondent suffered two decrees as mentioned above and not willing to. leave the Company to the duly elected Board of Directors by shareholders of the Company;
f. Several reports including report of Advocate commissioner appointed by this Tribunal, pointed out several illegal acts on the part of respondent No. 3 to 5.
g. It is serious acts of oppression and mismanagement on the respondent Nos. 3 to 5 to continue the management and filing several petitions, raising frivolous contents/allegations especially after the respondent Nos 3 to 5 suffered two decrees as stated supra thereby depriving duly elected Board of Directors to manage the affairs of Company as per wishes of shareholders of Company on the pretext present Company petition is pending disposal.
The Respondents No.3 to 5 by raising several frivolous litigations before various Courts/Authorities, have caused so much hardship to the Petitioners as well as to the Company. They are bent upon to abuse the process of law and thereby got so much financial advantage out of the running of the affairs of the Company. As explained above, the Respondents No.3 to 5 have not stopped in interfering with the affairs of the Company, even when, they have suffered two decree and also CLB Order dated 16.07.2008. They were also removed from the Board of Directors as per the EGM conducted on 02.01.2008 and the agreement dated 03.10.2003 was also terminated. Hence it is a fit case to award costs against Respondents No.3 to 5.
The order dated 22.11.2011 passed by BIFR by directing '3(1) Reddy Group to continue to manage affairs of the Company and to submit fully tied up DRS to IDBI(OA) within six weeks on behalf of the Company and (ii) IDBI(OA) to examine the DRS and convene the joint meeting of all concerned, and submit fully tied up DRS, if emerges to the Board within next six weeks” was subsequently stayed by AAIFR vide order dated 09.02.2012/21.02.2012 and also granted stay of all further proceedings of BIFR till the main appeal was finally disposed of. It is to be mentioned herein that by virtue of promulgation of new Companies Act, 2013, all proceedings pending before BIFR/AAIFR stands abated. After suffering two decrees as stated above and also in view of interim order dated 16.7.2008, the respondent Nos. 3 to 5 do not have any locus standi to continues as MD/Directors and to interfere in the affairs of Company. And the alleged allotees out of shares of alleged increased share capital would not get any rights and when Respondent Nos. 3 to 5 themselves have no right to pass any resolution to increase the same. So the impugned increased share capital and subsequent allotment of those shares would not bestow any rights on those allottees. Hence, there is no necessity to implead those alleged allottees of shares and the Tribunal is fully empowered to interfere with this issue. It is relevant to point out general principle of law which says 'Nobody can convey a better title that what one has'. In the instant case, the Respondent Nos. 3 to 5 themselves have.lost all rights in the Company and thus they convey nothing to anybody else including so-called allotees out of alleged increased share capital. Moreover, as stated supra, in the plaint filed by respondents have clearly stated that capital of Company remains same without any enhancement as contended now.
The acts respondent Nos. 3 to 5 are conducting affairs of the Company in illegal manner causing irreparable damage and loss in a manner prejudicial to shareholders of the Company and also against public law disobeying all orders of various judicial forms as stated supra. The facts and circumstances as mentioned above would indicate that ordering winding up of Company would be just and equitable but it would unfairly prejudice and burdensome to shareholders of the Company and it is also against public interest. Hence, it is necessary to put an end the illegal interference of Respondent Nos. 3 to 5 in the affairs of Company so as to see that its affairs are being conducted by legally constituted Board of Directors as stated. Therefore, it is a fit case for this Tribunal to exercise its jurisdiction and powers conferred on it, u/s 397, 398 and 402 and other applicable provisions of Companies Act, 1956, read with relevant comparable provisions under new Companies Act, 2013.
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2017 (5) TMI 1660
Taxability of interest earned on Fixed Deposits during pre-operative period when business has not commenced - correct head of income - HELD THAT:- It is clear that assessee, even though has borrowed funds has not utilised them for the purpose of project and has kept them in short term FDs with another bank, not in the bank from which it has obtained loan. This indicates that the funds are not utilised for the purpose of business in the project construction. Therefore, on facts alone, the set-off cannot be given. The issue of interest earned on FDs of surplus funds are considered by the Hon'ble Supreme Court in a series of judgments.
If the receipts are inextricably connected to the project or construction, then, the amounts are to be set-off to the capital expenditure incurred during the pre-operative stage. The interest on FDs have no connection with the project/construction activity, then the same is to be brought to tax under the head ‘Other Sources’. The order of the CIT(A) has clearly demarcated the distinguishing features of various judgments of Hon'ble Supreme Court and has correctly came to the conclusion that interest on FDs is taxable during the pre-operative period under the head ‘Other Sources’.
Respectfully following the jurisdictional High Court judgment as supported by the principles laid down by the Hon'ble Supreme Court in the case of Tuticorin Alkali Chemicals and Fertilizers Ltd., [1997 (7) TMI 4 - SUPREME COURT], BONGAIGAON REFINERY AND PETROCHEMICALS LTD.[2001 (7) TMI 4 - SUPREME COURT] and AUTOKAST LTD. [2000 (11) TMI 7 - SUPREME COURT] appeal of assessee dismissed.
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2017 (5) TMI 1659
Levy of advertisement tax - vires of Section 172 read with Section 192 of the Act, 1959.
Held that:- In the present case, apart from the fact that no rules as contemplated under Section 540 have been framed, it is also pertinent to note that the objections for making even Bye-laws 2016, were received and heard by a Committee of the officers of the Corporation and not by the elected members of the Corporation or the Executive Committee or any other Committee of councillors. The Supreme Court in Municipal Council, Khurai [1964 (12) TMI 37 - SUPREME COURT] considered this aspect of the matter and clearly held that powers to hear objections cannot be delegated to a Sub-Committee.
It is clear that to impose a tax specified under sub-section (2) of Section 172, the procedure contemplated under Sections 199 to 203 requires to be followed scrupulously and a deviation therefrom is not permissible and if there is any, the rules framed would be rendered illegal or ultra vires the procedure contemplated under these provisions. We are not entering into such controversy since, in the present case, there are no rules at all before us that have been framed and approved, published or notified in the Official Gazette by the State Government.
The impugned Bye-laws, 2016 are even otherwise invalid and ultra vires the Act, 1959 having been framed without following the procedure contemplated under Sections 542 to 545 - Petition allowed.
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2017 (5) TMI 1658
Disallowance u/s.40A(3) - part payments as made by cheque and part payment in cash - assessee had purchased land from the parties and made payment exceeding ₹ 20,000/- in cash in violation of provisions of section 40A(3) - Held that:- It is open to the assessee to furnish to the satisfaction of the assessing officer the circumstances under which the payment in the manner prescribed in Section 40-A(3) was not practicable or would have caused genuine difficulty to the payee. It is also open to the assessee to identify the person who has received the cash payment.
Rule 6-DD provides that an assessee can be exempted from the requirement of payment by a crossed cheque or crossed bank draft in the circumstances specified under the rule. As clear from the provisions of Section 40-A(3) and Rule 6-DD that they arc intended to regulate the business transactions and to prevent the use of unaccounted money or reduce the chances to use black money for business transactions. If the payment is made by a crossed cheque drawn on a bank or a crossed bank draft then it will be easier to ascertain, when deduction is claimed, whether the payment was genuine and whether it was out of the income from disclosed sources. In interpreting a taxing statute the court cannot be oblivious of the proliferation of black money which is under circulation in our country. Any restraint intended to curb the chances and opportunities to use or create black money should not be regarded as curtailing the freedom of trade or business. - Decided against revenue.
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