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Showing 161 to 180 of 1281 Records
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2014 (9) TMI 1127 - COMPANY LAW BOARD, MUMBAI
Arbitration proceedings - Section 8 of the Arbitration Act applicability - stay further proceedings of this Petition and/or dismissing the same seeked - Held that:- From a plain reading of the provision contained in Section 8 of the Arbitration Act we have no hesitation to hold that Section 8 of the Act is not applicable having regard to the facts and circumstances of this case. The reasons are; firstly, there is no commonality of the parties, secondly, the Respondent No.1 Company is not a party to the Agreement of Arbitration; thirdly, it is matter of record that there is no arbitration clause in the Articles of Association of the Company and it is well settled law that these are the Articles of Association of the Company which binds the members thereof to act according to its Regulations.
The alleged Agreement for arbitration has been entered into during the trial of the case; and lastly reference for arbitration is with regard to distribution of assets between the two Groups, in which the Company is not a party. It is further an established law that any private arrangement between the shareholders/ members of the Company has no material bearing in a petition filed under Section 397/398 of the Act by such member/ shareholder having qualification under Section 399 of the Act. Thus, the necessary elements cited above are not made out for application of the provisions of Section 8 of the Act, and therefore, the prayer made by the Respondents to stay further proceedings of this Petition and/or dismissing the same on this ground, is liable to be rejected. The said objection is therefore rejected. It is however observed that the effect of this "so called Arbitration agreement" arrived at between the parties during the pendency of the Petition would be seen at the time of final disposal of the Petition. The Respondents may take such pleas in this regard in their reply as they deem fit and proper in the fact and circumstances of the case.
As Respondents / Applicants (in C.A.No.231/14) have themselves challenged the Award by way of filing a Petition under Section 34 of the Arbitration Act before the Civil Judge, Sr. Division, Pune. In such a situation, they are estopped from relying upon a part of the Award which stipulates that the Respondent No.1 Company has been given in their share in the distribution of assets by the Ld. Arbitrators in the said arbitration proceedings and, therefore, the present petition under Section 397/398 of the Act with reference to Respondent No.1 Company are no more sustainable in the CLB.
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2014 (9) TMI 1126 - CALCUTTA HIGH COURT
Offences punishable under Sections 22/23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Bail application - nature of offence - Held that:- Considering the fact that the petitioners are in custody for last 203 days and the investigation is complete and the chargesheet has already been submitted and further considering the fact that the consignment in question was validly imported in India and the same has already been seized, we are of the opinion that further detention of the accused/petitioners is not necessary.
Therefore, the accused/petitioner no. 1, namely, Niyazuddin Sk., and the petitioner no. 2, namely, Md. Asif Aslam, be released on bail upon furnishing a bond of ₹ 15,000/- (Rupees fifteen thousand) only each with two sureties of like amount, one of whom must be local each, to the satisfaction of the learned Chief Judicial Magistrate, Barasat.
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2014 (9) TMI 1125 - ITAT MUMBAI
Addition u/s 14A r.w.r. 8D - sufficiency of own funds - Held that:- The undisputed fact is that the assessee is having own funds in the form of share capital and reserves and reserves and surplus amounting to ₹ 101.31 crores as against the investments of ₹ 69.08 crores. This clearly shows that the assessee is having sufficient own funds to make the investment. Further, we find that out of the total investments of ₹ 69.08 crores, ₹ 66.68 crores are invested in subsidiary/associate companies. Further, we find that the loan liability of ₹ 25.25 crores as on 31.3.2008 has come down to ₹ 15.61 crores as on 31.3.2009 i.e. year under consideration. This also proves that there are no fresh borrowings during the year under consideration.
No reason for the allocation of interest expenditure towards earning of exempt income. However, allocation of administrative and other expenses cannot be ruled out. The disallowance as per Rule 8D (2)(iii) as computed by the Ld. CIT(A) comes to ₹ 2,10,756/-. In our considered opinion, this disallowance would meet the ends of justice. The total disallowance sustained is ₹ 2,10.756/-. - Decided partly in favour of assessee.
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2014 (9) TMI 1124 - ITAT MUMBAI
Addition on account of lower gross profit - rejection of books of account - adoption of correct rate - Held that:- In a case where the books of accounts are rejected and the turnover is to be estimated on the basis of best judgment assessment, the overall facts and circumstances of the case have to be considered e.g. the nature of business of the assessee and the volume of the business for the entire year etc. etc. A reasonable and fair view should be adopted in estimating the turnover. As observed above, the ld. CIT(A), while restricting the GP rate at the rate of 9%, has taken into consideration the overall facts and circumstances of the case and also the considerable increase in the turnover of the assessee as compared to previous years. We do not find any infirmity in the order of the ld. CIT(A) on this ground.
Disallowance of expenditure - Held that:- Neither the disallowance made by the AO nor the action of the ld. CIT(A), in deleting the disallowance made by the AO in respect of expenditure, without verification of the bills, vouchers etc., was justified. So we set aside the order of the ld. CIT(A) on this issue and restore the matter to the file of the AO with a direction that AO will verify the correctness etc. of the expenditure claim and thereafter to decide the issue afresh in accordance with law.
Unexplained cash credit under section 68 - CIT-A allowed the claim - Held that:- We are of the view that the action of the ld. CIT(A) in deleting the additions on account of unexplained cash credits without verifying the genuineness of the transactions and creditworthiness of the creditors etc. was not justified. So, in our view, the interest of justice will be well served, if, the issue is restored to the file of the AO with a direction to examine the same afresh and decide the same after giving necessary opportunity to the assessee to prove the genuineness and creditworthiness etc. of the creditors.
Validity of best judgment assessment under section 144 - Held that:- AO had given ample opportunity to the assessee to produce the necessary details. When in a case, the assessee relies upon certain documents and records in the shape of books of accounts, bills, vouchers etc. and the AO requires the production of such documents for the purpose of verification of the genuineness and correctness of those documents, a duty is cast upon the assessee to produce the relevant documents. The excuse that it was difficult to produce the entire records before the AO, in our view, is not a valid excuse, when a statutory duty is cast upon the assessee to produce the necessary details as may be called upon by the Income Tax Authorities. Under such circumstances, in our view, the AO has rightly made the best judgment assessment under section 144 of the Act. Hence, we do not find any merit in the appeal of the assessee
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2014 (9) TMI 1123 - ATPMLA
Provisional attachment - PMLA Act - alternate remedy - Held that:- The plea of the Appellant that he has no other right before any other forum to agitate his right except to file the present appeal under section 26 of the Act cannot be accepted. In the circumstances the appropriate course for the Appellant would have been to file an appropriate application invoking his right to be heard under proviso to section 8(2) of the Act and to establish before the Adjudicating Authority that he has a right in the property which has been provisionally attached and for which provisional attachment order has also been confirmed.
Entertaining the Appeal of the Appellant, though he has a right to approach the Adjudicating Authority seeking a right of hearing under proviso to section 8(2) of the Act can have serious consequences leading to deprivation of rights to the opposite parties. If this Tribunal entertains the appeal of the Appellant and comes to the conclusion that the appellant has a right in the property which has been attached and the said property is not liable for attachment, then the respondent shall be deprived of his right of first appeal, as contemplated under section 26 of the Act and will be left only with invoking his right of second appeal as contemplated under section 42 of the Act. When an efficacious remedy is available to the appellant, then whether it will be appropriate to entertain his appeal in the facts and circumstances.
Therefore, in the facts and circumstances and for the foregoing reasons, the appeal of the appellant is not entertained and it is left to the appellant to invoke the remedy available to him under the Act, in case the Appellant has a right over the property which had been provisionally attached and which attachment order had been confirmed by the Adjudicating Authority.
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2014 (9) TMI 1122 - ALLAHABAD HIGH COURT
Benefit of section 4BB of the Act - the issue in the present case is identical to the case of AR. Rice Mills Pvt. Ltd. Versus Commissioner of Commercial Taxes, UP. Lucknow [2009 (11) TMI 861 - ALLAHABAD HIGH COURT], where it was held that The benefit of Sec 4BB is the statutory benefit and the assessees are entitled for the said benefit - Held that: - following the decision in the above case, all the revisions are restored back to the Tribunal to decide the issue denovo - revisions allowed.
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2014 (9) TMI 1121 - DELHI HIGH COURT
Vires of Rule 5A of the Service Tax Rules, 1994 - the notice of the petitioner has been drawn to Rule 5A of the said Service Tax Rules, 1994 by quoting the provisions of Rule 5A(2) thereof - Held that: - When the Rule does not survive, there is no question of any notice issued thereunder having any validity - the present petition would also have to be allowed inasmuch as the notice, which is impugned before us, has been issued under Rule 5A(2) - petition allowed - decided in favor of petitioner.
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2014 (9) TMI 1120 - ITAT MUMBAI
Additional depreciation u/s 32(iia) - addition of plant & machinery made during 01.10.2007 to 31.02.2008 - held for less than 180 days - Held that:- Under section 32(1)(iia) of the Income Tax Act there is no embargo on the assessee to claim the balance additional depreciation in the subsequent year if in the first year the assessee was unable to claim 20% depreciation by virtue of proviso to section 32(1)(iia). Therefore, we direct the AO to allow the claim of depreciation of 10% in the year under consideration. ACIT vs. SIL Investment Ltd.(2012 (6) TMI 83 - ITAT DELHI) and DCIT vs. Cosmo Films Ltd. [2012 (9) TMI 281 - ITAT DELHI].- Decided in favor of assessee.
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2014 (9) TMI 1119 - SC ORDER
Order of provisional attachment - Jurisdiction of judicating Authority confirming the order of provisional attachment - Held that:- As decided by HC [2014 (2) TMI 1305 - GUJARAT HIGH COURT] as the petitioners have already adopted the alternative remedy and they are before the Tribunal, we see no reason to entertain these Special Leave Petitions. The Special Leave Petitions are, therefore, dismissed.
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2014 (9) TMI 1118 - BOMBAY HIGH COURT
Offence under Section 138 of NI Act - complaints have been filed by the complainant Company or by the Attorney - complaint explicitly asserting the knowledge of the Attorney regarding the transaction stated in the complaint - Held that:- Merely because complaint is signed and presented by a person, who is neither an authorized agent nor a person empowered under the Articles of Association or by any resolution of the Board to do so, is no ground to quash the complaint. It is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the Court. Even if initially, there was no authority, still the company can, at any stage, rectify that defect and at a subsequent stage can send a person who is competent to represent the company.
In the present case, the complaint is not filed by the Power of Attorney in his personal name, but has been filed by the Company i.e. Shri Mallikarjun Shipping Pvt. Ltd,. The same, however, has been filed through the authorized representative i.e. the Attorney Mr. Bhushan Honavarkar. It is true that in the complaint, there is no averment at all to the effect that the said attorney has knowledge about the transaction in question. However, he has produced on record the extract true copy of the minutes wherein a resolution was passed on 27/10/2012 authorizing said Shri Bhushan Honavarkar to file complaint and do all other acts on behalf of the Company. It is true that the original resolution has not been produced on record and what has been produced is a extract true copy issued by one of the directors of the complainant Company. In the affidavit filed by Shri Bhushan Honavarkar, he has specifically stated that he is duly authorized representative of the complainant and that the complainant Company is duly represented by him vide resolution passed in the meeting held on 27/02/2012. In the said affidavit, he has specifically narrated all the facts as required for issuance of process and he has stated that all the said facts are true to the best of his knowledge and belief. In such circumstances, merely because there is no averment in the complaint to the effect that said Shri Bhushan Honavarkar has personal knowledge of the transaction, that may not be sufficient to dismiss the complaint at this stage.
The point that the Attorney, namely Bhushan Honavarkar could not have filed the complaint on behalf of the complainant Company and could not have verified the same was not at all raised before the learned Additional Sessions Judge, South Goa, Margao before whom the petitioners had filed Criminal Revision Applications No. 74/2013 and 85/2013, against the issuance of process.
In view of the discussion supra the orders dated 07/01/2013 passed by the learned J.M.F.C. at Mapusa thereby issuing process against the petitioner under Section 138 of the Act, in both the cases, and the orders dated 18/10/2013, passed by the Appellate court in Criminal Revision Applications No. 74/2013 and 85/2013, cannot be quashed at this stage and the complaints are not liable to be quashed.
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2014 (9) TMI 1117 - BOMBAY HIGH COURT
Winding up petition - Held that:- The dispute raised in the affidavit-in-reply to the effect that the respondent was not responsible for all the recoveries from the foreign buyers is clearly an after-thought. It was never raised in the course of the correspondence. The learned Judge has merely referred to the respondent's contention that the post dated cheques ought not to have been presented for recovery of part-payment of ₹ 3 crores. No reasons have been furnished as to why the learned Judge found that this defence cannot be dismissed out of hand. Considering the facts that we have referred to there is no defence even to these cheques.
In the result, though the pleading about the manner in which the funding took place can be said to be inaccurate, it ought not to result in the appellant's just and admitted claim being defeated. In the circumstances, there is no defence to the appellant's claim.
The impugned judgment and order is set aside. The appeal is allowed. The petition is admitted and shall be advertised in Free Press Journal, Maharashtra Times and Maharashtra Government Gazette. The petitioner to deposit an amount of ₹ 10,000/- with the Prothonotary and Senior Master of this Court by 15th November, 2014.
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2014 (9) TMI 1116 - ANDHRA PRADESH HIGH COURT
Jurisdiction - case of petitioner is that the order dated 18.11.2013 passed in RR No.43/2011-12, by the 2nd respondent-Deputy Commissioner and consequential effectual order dated 25.11.2013 passed by the 1st respondent vide Proc.No./2345/2001-02 (CST) are without jurisdiction - power of coordinate officer - whether coordinate officer is empowered to revise orders of the assessing authority and he can sit over the order of the Appellate Deputy Commissioner and pass a fresh order?
Held that: - when orders are passed by the assessing authority, i.e. the 1st respondent herein, matter was carried in appeal before the Appellate Deputy Commissioner. Before the appellate authority, mainly, it was the case of the petitioner that it could not file statutory forms as the same could not be procured before orders were passed by the assessing authority. It was also pleaded that, statutory forms were procured and accordingly (13) ‘G’ forms, (13) ‘C’ forms, (10) ‘F’ forms and (7) ‘H’ forms and other documentary evidence were filed and condonation of delay was sought.
With regard to statutory forms, the appellate authority remitted the matter back to the assessing authority, with a direction to verify the correctness of turnovers covered by statutory forms that would be filed by the petitioner and grant relief to the extent it is eligible, in accordance with the provisions of law. It is true that, consequent to the order passed by the appellate authority, giving benefit of statutory forms, effectual orders are passed, which are also rectified on the representation filed by the petitioner, accepting deferment facility for payment of tax. But, at the same time, when it is noticed by the revisional authority, that certain irregularities are committed by the assessing authority while passing effectual orders, pursuant to the order dated 26.03.2008 passed by the appellate authority, 2nd respondent has invoked powers under Section 9(2) of Central Sales Tax Act, 1956, read with Section 20(2) of the A.P. General Sales Tax Act, 1957. From a perusal of the orders passed by the revisional authority, it is clear that concessional rate on the tax allowed on the turnover of ₹ 24,05,520/- was irregular, inasmuch as ‘C’ forms, which are issued, are anterior to the effective date of registration. Similarly, for turnover of ₹ 1,13,83,834/-, it is alleged that except filing of ‘F’ forms, petitioner has not filed any other documents, evidencing actual transport/movement of goods and on turnover of ₹ 49,16,426/- which is covered by ‘H’ forms, it is alleged that petitioner has not filed any other documents evidencing actual export of goods and also failed to file orders placed by foreign buyers on the exports.
Even with regard to the allegation of limitation, it is to be noticed that, as the revisional authority has revised the order dated 20.10.2009, which was rectified on 04.01.2010 only, as such, it cannot also be said that suo motu revisional power that was exercised by the 2nd respondent is beyond the period of limitation. Except the allegation of maintainability and jurisdiction of the 2nd respondent, petitioner has not controverted any of the findings recorded by the 2nd respondent in the impugned order. Even learned counsel for the petitioner, except the submission on the point of jurisdiction, has not urged any other point. In that view of the matter, we are of the view that the 2nd respondent has rightly exercised suo motu powers, in revising the order dated 20.10.2009, which was rectified on 04.01.2010.
It is to be noticed that though there is statutory remedy of appeal before the Appellate Tribunal, petitioner, has approached this Court without availing the same - the order dated 18.11.2013 passed in RR No.43/2011-12, by the 2nd respondent-Deputy Commissioner (CT), Punjagutta Division, Hyderabad, and consequential effectual order dated 25.11.2013 passed by the 1st respondent vide Proc.No./2345/2001-02 (CST), are valid and legal and it cannot be said that such orders are passed without jurisdiction.
Petition dismissed - decided against petitioner.
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2014 (9) TMI 1115 - KARNATAKA HIGH COURT
Addition depreciation - manufacture or production of an “article” - assessee in addition to carrying on the business of gold mining is also in the business of generation of electricity through windmill as second line of business - Whether Section 32(1)(iia) includes the business of generation and distribution of power to avail the benefit of additional depreciation?
Held that:- The material on record shows that the assessee is generating electricity through windmill as a second line of business. It is a product of the assessee company. It is covered under the words “article” or “thing”, which is tradable / identifiable. In other words, the electricity falls within the definition of Sale of Goods Act, 1930, and process of generation of electricity is akin to manufacture or production of an “article” or “thing”. The power generated need not necessarily be used in the production of assessee’s own products namely mining and extraction of gold. The use of electricity in the manufacturing activity of the core business of the assessee is not a precondition for the grant of additional depreciation under the statue. Therefore, we do not see any merit in this appeal. Accordingly, this appeal is rejected.
However, we have not gone into the question of applicability of Section 32(1)(iia) of the Income Tax Act, 1961, and the question as to whether clarificatory or not is kept open to be decided at proper time.
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2014 (9) TMI 1114 - DELHI HIGH COURT
Reopening of assessment - Held that:- We need not set out all the arguments in detail. It would suffice to say that the said notices do not meet the requirements of law. Consequently, the notices under Section 148 dated 31.05.2012 and 28.03.2013 are set aside and all proceedings pursuant thereto are quashed.
Quashing of the notices dated 31.05.2012 and 28.03.2013, however, does not preclude the Assessing Officer from issuing a fresh notice under Section 148 in relation to the assessment year 2008-09, if the Assessing Officer has reason to believe that income chargeable to tax has escaped assessment, having regard to the first proviso to Section 147 and other applicable provisions of the said Act. We are also making it clear that we have not expressed any opinion on the merits of the matter which includes the question as to whether there was mere change of opinion and / or no fresh material has surfaced after the completion of the assessment under Section 143(3).
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2014 (9) TMI 1113 - ANDHRA PRADESH HIGH COURT
CENVAT credit - inputs - whether the Hon’ble Tribunal is correct in allowing the clearance of inputs as such which are procured from other manufacturers by the respondent to 100% EOU without payment of duty or without reversal of CENVAT credit availed on said inputs contrary to the condition of the N/N. 22/2003-C.E., dated 31-3-2003 requiring the 100% EOU to procure the excisable goods directly from factory of manufacture - Held that: - the assessee is entitled to relief under the statutory rules viz., Rule 19(2) of the CER - The Tribunal went beyond the order passed by the Commissioner (Appeals) and held in favour of the assessee insofar as the issue of limitation was concerned - appeal dismissed - decided against appellant.
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2014 (9) TMI 1112 - ITAT JODHPUR
Reopening of assessment - reassessment proceedings initiated on the basis of the audit objection - non application of independent mind by AO - Held that:- The original assessment was framed u/s. 143(3) of the Act all the material was available on the record and the Assessing Officer applied his mind by making a deep scrutiny while framing the assessment u/s. 143(3) of the Act. The reassessment proceedings were initiated on the basis of the audit objection which cannot form the basis for the Assessing Officer to reopen the closed assessment.
Thus the notice issued by the Assessing Officer on the basis of the audit party was not valid and accordingly, reassessment framed u/s. 147 read with sec. 143(3), on the basis of the aforesaid notice issued u/s. 148 of the Act is quashed. - Decided in favour of assessee.
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2014 (9) TMI 1111 - ITAT MUMBAI
Disallowance u/s 14A r.w.r. 8D - Held that:- The computation of income reveals that the assessee had disclosed the income from business or profession at ₹ 1,16,12,455/- against which the expenditure of only ₹ 11,73,198/- had been claimed. It cannot be, under any circumstances, said that the assessee did not incur any expenditure for earning of taxable income in crores. Since the assessee had a net positive interest income, under such circumstances, it cannot be said that the assessee had incurred interest expenditure for earning of exempt income.
So far the remaining amount on account of administrative expenses is concerned, it is too meager as compared to the taxable income of the assessee. However, keeping in view the fact that the assessee had earned dividend income, it might have incurred some expenses for the said purpose, we restrict the disallowance under section 14A, to 10% of the total administrative expenses of ₹ 7,31,006/-. - Decided partly in favour of assessee.
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2014 (9) TMI 1110 - ITAT MUMBAI
Disallowance u/s 14A r.w.r. 8D - Held that:- A perusal of the profit and loss account of the assessee reveals that the assessee had a net positive interest income, under such circumstances, it cannot be said that the assessee had incurred interest expenditure for earning of exempt income.
For the remaining amount of expenditure on account of common administrative expenses is concerned, the disallowance of ₹ 8,61,509/- u/s 14A seems to be excessive, considering the taxable income of the assessee of ₹ 3,20,54,051/-. Moreover, the mechanical application of rule 8D in this case is not warranted, considering the submissions of the assessee that major part of the investment was in unquoted shares of the group companies, the capital gains income from which was not exempt and even no dividend income was received from such investments. Thus as the assessee has earned dividend income, it might have incurred some expenses for the said purpose, in our view, the interest of justice will be well served if the disallowance u/s 14A is restricted to 10% of the remaining/common administrative expenses of ₹ 16,60,983/-. - Decided partly in favour of assessee
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2014 (9) TMI 1109 - ALLAHABAD HIGH COURT
Unexplained loan - Held that:- If the addition was to be made that might have been made in the hands of Shri Anand Mohan Shukla, but certainly, not in the hands of the assessee. When it is so, then we accept the loan advance by Anand Mohan Shukla for a sum of ₹ 1,13,000/- as genuine loan. Remaining loan amount is very meager so the same is also accepted as genuine.
In view of the above, we accept the loan of ₹ 1,70,000/- as a genuine and accordingly, delete the addition. For the purpose, all the impugned orders are hereby set aside.The answer to the substantial question of law is in favour of the assessee and against the Department.
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2014 (9) TMI 1108 - ITAT AMRITSAR
Penalty u/s 271(1)(c) - treatment of interest income on deposits made during the construction period - Held that:- The assessee followed the decision of “Indian Oil Panipat Power Consortium Limited vs. ITO” (2009 (2) TMI 32 - DELHI HIGH COURT) wherein, it was held that where funds are infused specifically for purposes of construction or setting up of the plant, interest earned on temporary deposit of funds not immediately required for such purposes would be regarded as inextricably linked to setting up of plant and would, therefore, go to reduce the project cost. It was on the basis of the said decision that the assessee revised its return and claimed that interest income, which had been set off against the project cost in its books of account, was not chargeable to tax as “income from other sources”. The factum of the deposits having been made shortterm nowhere stands challenged. Thus, on this score also, the assessee has a prima facie good case.
Turning to the issue of taxability of interest accrued from deposits of ₹ 7.50 crores made with the District Court, Bathinda arguments of the Ld. that since the deposit was made under the direction of the Hon’ble Supreme Court, it needs to be treated as capital receipt, to be set off against the cost of the project and accordingly after considering the arguments of the parties, we find there is prima facie case in favour of the assessee
As regards the legal claim with reference to disclosure with regard thereto had been made, it was argued that since the matter was litigated there were two possible views and in such cases concealment of penalty is not leviable. Further, the AO nowhere specified the concealment of particulars of income alleged to have been concealed by the assessee. On this score too, the assessee has a prima facie case and the balance of convenience is in favour of the assessee.
The purpose of taking into consideration the period of limitation for filing the appeal before the Tribunal is, as to whether the assessee is pressing/going to press for stay. Obviously, when such a remedy has been prescribed by the statute, it cannot be taken away at the will of the department. It is only because it is reasonably expected that the stay applications would be filed alongwith application by the end of the limitation period, that such period is to be taken into consideration. So far as the present cases are concerned, the appeals italicize been filed within limitation. - Decided in favour of assessee.
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