|
Advanced Search Options
Case Laws
Showing 161 to 180 of 1290 Records
-
2014 (9) TMI 1136
Order of acquittal - Section 378 of NI Act - whether an acquittal order can be challenged under Section 372 Cr.P.C. or special leave is required to prefer an appeal under Section 378 (4) Cr.P.C.? - Held that: - the 'complainant' in the proceedings under Section 138 N.I.Act cannot be considered 'victim' in the letter and spirit of the definition of Section 2 (wa) of the Code and definition of 'injury' under Section 44 IPC cannot be imported into Section 138 N.I.Act. In every such proceedings at first instance, every complainant considers / claims himself / herself a 'victim'. The complainants in these proceedings cannot be taken at par with those who put criminal law into motion to bring the offenders to book at whose hands, they have sustained 'injury' as defined in Section 44 IPC. The changes in Cr.P.C. were for 'victims' who were the worst sufferers in a crime and did not have much role in the Court proceedings.
The remedy available to the complainants under Section 138 N.I.Act against order of acquittal is only to seek special leave before filing an appeal under Section 378 (4) Cr.P.C. before the High Court. In the instant case, the appellant has not sought any such leave - appeals filed by the appellant are dismissed as not maintainable.
-
2014 (9) TMI 1135
100% EOU - Refund claim - whether the services are taxable in India or the same are export of service outside India in terms of Service Rules, 2005 and for this reason are not taxable in India? - Held that: - Even though the services have been performed in India, the service being business auxiliary service, the same are in respect of the business of the principal located abroad - services are covered by clause (iii) of Rule 3(1) of Export Services Rules 2005.
CVD taken on inputs - Held that: - a 100% EOU need not have to pay the CVD at all - CVD taken on inputs is not eligible.
The impugned orders are set aside and the matters are remanded to the original adjudicating authority to consider the refund claims - appeal allowed by way of remand.
-
2014 (9) TMI 1134
Penalty - non-performance/non-compliance of Past Performance Entitlement - Held that: - Though the appellant even before us has not furnished the copy of the said reply dated 15th September, 2005 but the counsel for the appellant has in this regard drawn our attention to the order dated 19th October, 2006 of the First Appellate Committee where the plea of the appellant of the short shipment being due to Embargo Cat. 338 is noticed. We may however note that the said contention was not accepted by the First Appellate Committee. We may further notice that even the Second Appellate Committee held that there is no justification in the said contention of the appellant for short shipment, because there was a facility for surrendering balance unutilized quota for the exporter in case of embargo and which was not availed of by the appellant - to enable the appellant to succeed on the said plea, it was incumbent upon the appellant to establish that the shortfall was only in quota items of US 338 and not in other quota of different countries code but which the appellant had failed to do and thus the said plea could not be believed.
If the non-fulfilment of the export quota allocated to the appellant was on account of any ban or embargo put on exports, the appellant ought to have surrendered the unfulfilled quota. The appellant admittedly did not do so and now cannot be permitted to wriggle out of his liability for penalty on the said ground.
Appeal dismissed with certain cost to be borne by appellant - decided against appellant.
-
2014 (9) TMI 1133
Reduction in FBT - Held that:- Neither the AOs action of 50% ad hoc disallowance nor CIT(A)’s direction to reduce the disallowance to the extent of 20% and allow corresponding reduction from FBT tax are sustainable. Thus the entire disallowance should be deleted consequently the direction to give reduction in FBT will become non est.
Allowing 43B claim - Held that:- No infirmity in the order of ld CIT(A) in allowing the 43B claim to the assesseE since it has not been disputed that amount in question was paid before due date of filing return of income and necessary evidence is brought on the record. Hence this ground of the revenue is dismissed.
Allowability of expenditure - Held that:- No infirmity in the order of ld. CIT(A) in respect of expenditure of ₹ 4,75,121/- as it has not been disputed that same pertained to AY 2008-09 and was booked in subsequent year before filing of the audit report. It is trite law that assessee can claim such expenditure relating to a year which is though accounted for in subsequent year but before filing of the audit report. In any case it will amount to postponement of liability and in such eventuality Hon’ble Supreme Court judgment in the case of Excel Industries [2013 (10) TMI 324 - SUPREME COURT ] is also applicable. Therefore, this ground of the revenue is dismissed.
Ad hoc disallowance in respect of items of expenditure on Gifts to dealer/mason on dealers/mason meet, Sweets etc. on occasion of festivals/visits of guest/Govt. Officials and Gifts to Govt. Officials/Guests on festival/visi tcannot be made. Assessees books are not rejected and the same are duly audited. We find no force in AOs vague and sweeping observations that expenditure is unverifiable. The expenditure being wholly and exclusively for assessee’s business is allowable. In view thereof, there is no justification in retaining the ad hoc 20% by ld. CIT(A). Consequently the CIT(A)’s direction about FBT becomes infructuous. Revenue ground in this behalf is dismissed and assessee’s grounds are allowed.
-
2014 (9) TMI 1132
Cancellation of bail granted to the Petitioners herein by the High Court - whether the exercise of jurisdiction by the High Court Under Section 439(2) of the Code justified in the instant case? - Held that:- It is a well settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a Court is bound to act within the four corners of the Statute. The statutory exercise of the power stands on a different pedestal than the power of judicial review vested in a Court.It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law.
In the instant case, the order for bail in the bail application preferred by the accused-Petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the accused-Petitioners. Even though the cancellation of bail rides on the satisfaction and discretion of the Court Under Section 439(2) of the Code, it does not vest the power of review in the Court which granted bail. Even in the light of fact of misrepresentation by the accused-Petitioners during the grant of bail, the High Court could not have entertained the Respondent/informant's prayer by sitting in review of its judgment by entertaining miscellaneous petition.
Herein, the High Court has assigned an erroneous interpretation to the well settled position of law, assumed expanded jurisdiction onto itself and passed an order in contravention of Section 362 of the Code cancelling the bail granted to the Petitioners herein. Therefore, in our considered opinion, the High Court is not justified in reviewing its earlier order of grant of bail and thus, the impugned judgment and order requires to be set aside.
The judgment and order passed by the High Court is set aside. The interim order granted on 02.09.2013 by this Court granting bail to the accused-Petitioners shall continue till the disposal of Police Case No. 126 of 2012 corresponding to Sessions Case No. 182 of 2012.
-
2014 (9) TMI 1131
Disallowance of claim of deduction u/s.10B in respect of sales tax refund - AO disallowed claim on the plea that the CST refund is not on account of profits and gains derived from EOU export of articles or things - Held that:- In the instant case as per contention of Ld. AR, it appears that assessee has already debited the amount paid under sales tax as its expenses forming part of cost of goods purchased for export, however, subsequently part of such sales tax was refunded which go to reduce the cost of purchases. The corresponding increase in profit due to such refund is eligible for claim of deduction u/s.10B. The sales tax refund is not a separate source of income nor it is the due to any Government policy for paying any incentive. Neither it is export incentive nor any payment under scheme of Government. Therefore, the source of receipt cannot be attributed to such scheme. It is simply refund of excess sales tax paid which has already formed part of cost of purchases.
We accordingly, direct the AO to verify as to whether the sales tax refund received by the assessee already formed part of its cost of purchases either during the year under consideration or in earlier years. Accordingly, assessee is directed to furnish details of such payment of sales tax and the year in which it has formed part of its cost of purchase in trading/P&L account. If the AO finds that such sales tax have already been debited in the trading/profit and loss account as a cost of purchases, assessee should be given benefit of deduction u/s.10B with respect to such amount of sales tax refund. Appeal of the assessee is allowed for statistical purposes.
-
2014 (9) TMI 1130
Validity of order passed by the Deputy Registrar of the Trade Unions - election of the Union and the modalities - Held that:- The matter is large open before the Industrial Court. The Court below has already directed to hold fresh election and for that, even modalities are worked out in the impugned order. While doing so, the order passed by the Deputy Registrar of the Trade Unions dated 26.02.2014 is already suspended, which is evident from record also. Under these circumstances, this Court does not see any reason to interfere in the course adopted by the Industrial Court as reflected in the impugned order. This petition therefore needs to be dismissed.
So far the grievance of the petitioner about the alleged large scale irregularities and high-handedness of the office bearers of the Union etc. is concerned, those are the aspects which can be taken care of by the collective wisdom of the members of the Union at the time of election and there can not be interference by the Court in that regard. If any offence is committed, it is always open to the concerned member to take recourse to the appropriate remedy, but the same can not be a ground to thwart the election process. It is vehemently submitted on behalf of the petitioner that, the time period granted by the Tribunal is already over, and therefore the election can not be held now. This argument needs to be rejected because the petition can not be, and is not for challenging the election ordered by the Industrial Court. This argument would show lack of bona fide of the petitioner and needs to be rejected. Any procedural aspect can be looked into by the Court below which is seized of the matter. This petition needs to be dismissed.
-
2014 (9) TMI 1129
Cognizance of an offence punishable under Section 138 of NI Act - Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138 (c) of the Act aforementioned? - can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142 (b) for the filing of such a complaint has expired? - Held that:- Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period.
Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause.
-
2014 (9) TMI 1128
Arbitrable disputes - Dispute covered by an arbitration agreement - Is a dispute brought before the Company Law Board invoking the provisions of Sections 397, 398 and 402 of the Companies Act, 1956 at all referable to a private tribunal, viz., an arbitral panel for resolution? - Does a decision of a foreign court on the question of whether a dispute is covered by an arbitration agreement bind the Company Law Board? - Held that:- Taken on board. Leave granted. No stay.
The matter may proceed before the Company Law Board in accordance with law. See HC order [ 2014 (8) TMI 1179 - BOMBAY HIGH COURT].
-
2014 (9) TMI 1127
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.
-
2014 (9) TMI 1126
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.
-
2014 (9) TMI 1125
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.
-
2014 (9) TMI 1124
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
-
2014 (9) TMI 1123
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.
-
2014 (9) TMI 1122
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.
-
2014 (9) TMI 1121
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.
-
2014 (9) TMI 1120
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.
-
2014 (9) TMI 1119
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.
-
2014 (9) TMI 1118
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.
-
2014 (9) TMI 1117
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.
............
|
9911796707
Advanced Search 
