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Showing 21 to 40 of 383 Records
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2012 (1) TMI 412
Arbitration Proceedings - application u/s 34 for setting aside an award made after lapse of three months - District Court had Christmas vacation - benefit of that period over and above the cap of thirty days as provided in Section 34(3) - Whether the Appellants are entitled to extension of time u/s 4 of the 1963 Act - Two contracts were entered into between the Appellants and the Respondents -(i) for construction of Tezpur Town Water Supply Scheme and (ii) for construction of Tinsukia Town Water Supply Scheme - disputes arose between the parties - resolve such disputes, sole arbitrator was appointed u/s 11 - Appellants filed application u/s 16 questioning the jurisdiction of the sole arbitrator - no arbitration clause in the agreement - application rejected by the sole arbitrator and passed two awards - Appellants made two applications for setting aside the awards.
HELD THAT:- Section 4, enables a party to institute a suit, prefer an appeal or make an application on the day court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed. Section 2(j) of the 1963 Act defines 'period of limitation' which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and 'prescribed period' means the period of limitation computed in accordance with the provisions of this Act.
Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows Sub-section (3) of Section 34 of the 1996 Act is not the 'period of limitation' and, therefore, not 'prescribed period' for the purposes of making the application for setting aside the arbitral award.
The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to Sub-section (3) of Section 34 of the 1996 Act being not the 'period of limitation' or, in other words, 'prescribed period', in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case.
Seen thus, the applications made by the Appellants, for setting aside the arbitral award were liable to be dismissed and have rightly been dismissed by the District Judge, as time barred.
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2012 (1) TMI 411
Issues Involved:
1. Whether the provisions of the Mines and Minerals (Development and Regulation) Act, 1957, exclude the provisions of the Indian Penal Code when the act of an accused is an offence under both statutes.
2. The legality of police registering a case and filing a final report under both the IPC and the Mines and Minerals Act.
3. The conditions under which a Magistrate can take cognizance of offences under the Mines and Minerals Act.
Summary:
Issue 1: Exclusion of IPC Provisions by the Mines and Minerals Act
The court examined whether the Mines and Minerals (Development and Regulation) Act, 1957 (Mines and Minerals Act) excludes the provisions of the Indian Penal Code (IPC) when the act of an accused constitutes an offence under both statutes. The court held that the offences under the IPC and the Mines and Minerals Act are distinct, with different ingredients. Therefore, the provisions of the Mines and Minerals Act do not exclude the provisions of the IPC. Consequently, it is lawful for the police to register a case under Section 379 IPC for theft of sand from government land and other relevant IPC provisions, investigate, and file a final report.
Issue 2: Legality of Police Registering a Case and Filing a Final Report
The court addressed the legality of police registering a case and filing a final report under both the IPC and the Mines and Minerals Act. It was held that the registration of a case under both statutes is not illegal. However, the police can only file a police report for offences under the IPC. For offences under the Mines and Minerals Act, the police must file a separate complaint if authorized under Section 22 of the Act. The court clarified that the Magistrate could take cognizance of IPC offences based on the police report but can only take cognizance of offences under the Mines and Minerals Act upon a complaint filed by an authorized person.
Issue 3: Conditions for Magistrate Taking Cognizance
The court examined the conditions under which a Magistrate can take cognizance of offences under the Mines and Minerals Act. It was held that cognizance of offences under the Mines and Minerals Act can only be taken on a complaint filed by a person authorized by the Central or State Government, not on a police report. The court highlighted that in the State of Tamil Nadu, as per G.O.Ms. No. 114, dated 18.09.2006, Inspectors of Police are authorized to file complaints under Section 22 of the Mines and Minerals Act. Therefore, upon completing the investigation, an Inspector of Police can file a complaint as an authorized person, and the Magistrate may take cognizance based on this complaint.
Conclusion:
The FIRs in the cases before the court cannot be quashed. The judgments in D. Sudharshan v. State, Muthu and another v. State, and K. Subramani v. State were overruled. The court provided detailed answers to the referred questions, clarifying the interplay between the IPC and the Mines and Minerals Act, the role of police in investigating offences under both statutes, and the conditions for Magistrate's cognizance of offences under the Mines and Minerals Act.
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2012 (1) TMI 410
Issues involved: Assessment of income as agricultural or business income, application of Rule 7 of the Central Income Tax Rules, double assessment by Central and State Governments, interpretation of Circular No.5 of 2003, relief against double taxation.
Judgment Summary:
Assessment of Palm Oil Income:
The petitioner, a public limited Company engaged in oil palm cultivation and crude palm oil production, faced assessments by both Central and State tax authorities for the years 1997-2008. The Income Tax Department sought to tax business income from palm oil production, challenging the long-standing practice of treating it as 100% agricultural income under the Agricultural Income Tax Act. The Court upheld Central Income Tax assessments for business income from palm oil under Rule 7, allowing the petitioner to challenge double assessments in a pending Writ Petition.
Circular No.5 of 2003 Interpretation:
Circular No.5 of 2003 aimed to prevent double taxation for income from rubber and coffee, allowing assessees who paid agricultural income tax on 100% of such income to avoid reopening of assessments. The petitioner sought similar relief for palm oil income, arguing that the Circular's principle should apply due to consistent agricultural income tax payments. The Court agreed, directing waiver of tax collection on business income from crude palm oil up to 2004-2005 assessment year.
Relief and Refund of Excess Tax:
The Court set aside agricultural income tax assessments from 2005-2006 onwards, directing modification in line with Central Income Tax assessments. Any excess tax paid under the Agricultural Income Tax Act was to be refunded to the petitioner. The petitioner was instructed to remit tax to the Central Income Tax Department for the relevant assessment years based on Central Income tax assessments, bringing clarity to the tax treatment of palm oil income.
Conclusion:
The Writ Petition was allowed, providing relief against double taxation and ensuring consistent tax treatment for palm oil income in line with Circular provisions and Central Income Tax assessments.
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2012 (1) TMI 409
Issues Involved:
1. Reconstruction of lost court records.
2. Determination of the status of the pending suit.
3. Allegations of deliberate destruction of court records.
4. Request for an investigation by the Central Bureau of Investigation (CBI).
Summary:
Reconstruction of Lost Court Records:
A suit for the redemption of a mortgage executed on 3 September 1925 was instituted in 1969. The original records of the suit were lost, and the Prothonotary and Senior Master granted reconstruction of the record on 14 January 2009 without notice to the Defendants and without determining whether the suit was still pending. The Plaintiffs sought to reconstruct the records, but the Defendants objected, claiming the suit might have been dismissed in default.
Determination of the Status of the Pending Suit:
The suit was placed before various Learned Single Judges, and issues were framed. However, the Defendants contended that the records had not been reconstructed in accordance with the law. The Division Bench allowed the Defendants to inspect the Minute Books and suit register to ascertain if the suit had been dismissed. The inspection revealed that the relevant pages of the suit register and the Minutes Book were missing, leading to an enquiry by a senior judicial officer to determine the status of the suit.
Allegations of Deliberate Destruction of Court Records:
The enquiry officer reported that the pages containing entries for Suit Nos. 1 to 50 for the year 1969 were missing, and there was no trace of Suit No. 36 of 1969. The officer suggested that a conspiracy might have been hatched to destroy the records, given the enormous value of the properties involved. The learned Attorney General of India supported this view, arguing that the records had been systematically destroyed, and an offence had been committed.
Request for an Investigation by the CBI:
The Plaintiffs argued that the Defendants, who were mortgagees in possession of the property, had a motive to destroy the records. They contended that the suit should be presumed pending in the absence of any judicial order dismissing it. The Court, however, noted the complete effacement of any trace of the suit from the records and found a prima facie case of deliberate destruction of court records. The Court ordered an enquiry by the CBI into the circumstances of the missing records and declined to allow the trial to proceed until the basic question of the suit's status was resolved.
Conclusion:
The Court entrusted the CBI with the task of conducting an enquiry into the destruction of the records and adjourned the hearing to 13 April 2012, emphasizing that it would be unsafe to proceed with the trial until the suit's status was determined.
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2012 (1) TMI 408
The Supreme Court of India dismissed the special leave petition after hearing the petitioner's counsel.
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2012 (1) TMI 407
Murder - Offence punishable u/s 302 and 307 IPC - sitting Member of Parliament facing several criminal cases - habitual criminal having more than three dozen cases involving serious offences - Bail Application - Pending proceeding of the trial, the High Court, granted conditional bail to the second Respondent - whether the High Court was justified in enlarging the second Respondent on bail after imposing certain conditions - Second Respondent/accused came from behind in the convoy of cars and immediately after crossing the Appellant's car and his supporters, the convoy of cars belonging to the second Respondent/accused suddenly stopped on the road without giving any signal and the second Respondent/accused came out of his vehicle armed with a gun along with his supporters who were also carrying guns and they started giving kick blows to one of the motorcycle riders who fell down and the pillion riders of the said motorcycles were fired upon by the second Respondent and his supporters from their respective guns and thereafter, they ran away from the place. Adbul Rehman-the pillion rider sustained serious fire arm injuries. When he was taken to the hospital at Varanasi, he succumbed to his injuries.
Second Respondent is a sitting Member of Parliament facing several criminal cases, that most of the cases ended in acquittal for want of proper witnesses or pending trial.
HELD THAT:- As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second Respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.
Taking note of all these aspects, particularly, the fact that the second Respondent was in jail since 24.08.2009, the trial has commenced by examining the two witnesses on the side of the prosecution and the assurance by the State that trial will not be prolonged and conclude within a reasonable time and also of the fact that the High Court while granting bail has imposed several conditions for strict adherence during the period of bail, we are not inclined to interfere with the order of the High Court.
In fact, in the impugned order itself, the High Court has made it clear that in case of breach of any of the conditions, the trial Court will have liberty to take steps to send the applicant therein (respondent No. 2 herein) to jail again. In addition to the same, it is further made clear that if the Appellant receives any fresh threat from the second respondent or from his supporters, he is free to inform the trial Court and in such event the trial Court is free to take appropriate steps as observed by the High Court.
We also direct the Trial Court to complete the trial within a period of four months from the date of the receipt of copy of this order without unnecessary adjournments.
With the above observation, finding no merit for interference with the order of the High Court, the appeal is dismissed.
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2012 (1) TMI 406
Issues involved: Habeas corpus petition challenging the order of detention u/s 307 IPC and u/s 302 IPC, delay in communicating the order of detention, short notice for State Advisory Board meeting, failure to inform family members of the detenu, and delay in passing the order of detention.
Challenge to Order of Detention: The detenu's mother filed a habeas corpus petition seeking to quash the order of detention dated 24.8.2011, citing non-furnishing of crucial documents, delay in communication of the order, and lack of information to family members.
Non-furnishing of Documents: The detaining authority failed to provide copies of FIRs despite requests, impacting the detenu's ability to make a proper representation, as per legal precedents emphasizing the detenu's right to access all relied-upon documents promptly.
Delay in Communication: The order of detention, passed on 24.8.2011, was only communicated on 16.9.2011, without any explanation for the 12-day delay, which was deemed a vitiating factor affecting the detenu's rights.
Short Notice for Advisory Board Meeting: The detenu was given insufficient time to prepare for the State Advisory Board meeting, violating the detenu's right to make an effective representation, as established in previous legal cases.
Failure to Inform Family Members: The detenu's family members were not informed of the detention order, contravening the detenu's right to have familial support and assistance, as highlighted in legal judgments emphasizing the importance of such notifications.
Delay in Passing Order of Detention: There was an unexplained delay of 33 days between the detenu's arrest and the passing of the detention order, which was considered excessive and unexplained, leading to the quashing of the order of detention.
Judgment: The High Court allowed the habeas corpus petition, setting aside the order of detention dated 24.8.2011 and ordering the detenu's immediate release unless required in another case, based on the various grounds of challenge successfully argued by the petitioner's counsel.
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2012 (1) TMI 405
Issues Involved:
1. Rejection of plaint u/s Order 7 Rule 11 of the Code of Civil Procedure.
2. Applicability of Section 4 of the Benami Transactions (Prohibition) Act 1988.
3. Pleadings and material facts in the plaint.
Summary:
Issue 1: Rejection of plaint u/s Order 7 Rule 11 of the Code of Civil Procedure
The defendants filed IA. No. 721/1997 under Order 7 Rule 11 of the Code of Civil Procedure, praying for the rejection of the plaint. The learned Single Judge allowed this application, opining that the prohibition contained in Sub-Section (1) of Section 4 of the Benami Transactions (Prohibition) Act 1988 barred late Smt. Santosh Malik from seeking partition and possession of the property.
Issue 2: Applicability of Section 4 of the Benami Transactions (Prohibition) Act 1988
The legal heirs of Santosh Malik argued that the suit was maintainable under Clause (a) of Sub-Section (3) of Section 4 of the Benami Transactions (Prohibition) Act 1988. However, the court found that the plaint did not plead that the person in whose name the property is held is a co-parcener in a Hindu Undivided Family, nor that the property is held for the benefit of the co-parceners. The court concurred with the Single Judge that the suit was barred by Sub-Section 1 of Section 4 of the Benami Transactions (Prohibition) Act 1988.
Issue 3: Pleadings and material facts in the plaint
The court scrutinized the pleadings and found them to be vague and lacking in material facts. The plaintiff, Santosh Malik, claimed a 1/3rd share in the property based on her contribution of Rs. 900/- towards its purchase. However, the court noted that the plaint did not specify the day, month, or year when the family decisions were taken. The court emphasized that pleadings must disclose material facts and that vague pleas are no pleas in the eyes of law. The court cited several precedents to highlight the importance of detailed pleadings and concluded that the plaint did not disclose a real cause of action.
Conclusion:
The court dismissed the appeal due to the vagueness in the pleadings and the lack of material facts, concurring with the reasoning of the learned Single Judge. The court refrained from imposing costs.
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2012 (1) TMI 404
Issues Involved:
1. Whether the respondent/plaintiff was the actual owner of the property or merely a benamidar.
2. Applicability of the Benami Transactions (Prohibition) Act, 1988 on the defences raised by the appellant/defendant.
Summary:
Issue 1: Ownership vs. Benamidar
The respondent/plaintiff filed suits for possession and injunction claiming ownership of the suit property. The appellant/defendant No. 1 contended that the respondent was not the real owner but merely a benamidar, with the actual owner being their father, late Sh. Jivan Singh. The trial court, despite the plea of bar under the Benami Transactions (Prohibition) Act, 1988, chose to give findings on merits, concluding that the property was not benami. The trial court noted that no document was proved by the appellant showing that the funds for the property were provided by the father.
Issue 2: Applicability of the Benami Transactions (Prohibition) Act, 1988
The suits were filed before the Benami Transactions (Prohibition) Act, 1988 came into force, but the written statements taking up the plea of benami were filed after the Act's promulgation. Section 4(2) of the Act prohibits any defence alleging that a property is held benami. The Supreme Court in R. Rajagopal Reddy v. P. Chandrasekharan clarified that defences of benami taken after the Act's enforcement are barred. The High Court held that the defences raised by the appellant were hit by Section 4(2) of the Act, rendering any further examination on merits unnecessary.
Conclusion:
The High Court sustained the judgments and decrees for possession and injunction in favor of the respondent/plaintiff, dismissing the appeals and holding that the defences of benami were barred by Section 4(2) of the Benami Transactions (Prohibition) Act, 1988. No other issues were urged or pressed. The appeals were dismissed with parties bearing their own costs.
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2012 (1) TMI 403
Issues Involved:
1. Whether the Appellant was given a fair and impartial trial.
2. Whether the Appellant was denied the right of a Counsel.
Summary:
1. Fair and Impartial Trial:
The Appellant, an illiterate foreign national, was tried, convicted, and sentenced to death by the Additional Sessions Judge, Delhi, without the assignment of Counsel for his defense. This conviction was confirmed by the High Court. The Appellant was charged u/s 302/307 IPC and u/s 3 of the Explosive Substances Act for a bomb explosion on 30-12-1997, which resulted in deaths and injuries. The trial court's proceedings revealed that the Appellant was not represented by a Counsel for a significant part of the trial, during which 56 out of 65 prosecution witnesses were examined without cross-examination by the defense. The Supreme Court emphasized that the right to a fair trial includes the right to cross-examine witnesses and that the trial court failed to ensure this right, thus violating Articles 21 and 22 of the Constitution of India.
2. Right of a Counsel:
The Appellant was initially assisted by a State-appointed Counsel during the committal proceedings. However, the Counsel did not appear for significant portions of the trial, and the trial court did not appoint another Counsel until the later stages of the trial. The Supreme Court highlighted that the right to be defended by a Counsel is fundamental to a fair trial. The trial court's failure to appoint a Counsel when the Appellant's Counsel was absent amounted to a denial of due process of law. The Court cited several precedents underscoring the necessity of legal representation for ensuring a fair trial.
Conclusion:
The Supreme Court set aside the conviction and sentence imposed by the Additional Sessions Judge and affirmed by the High Court, remanding the case to the Trial Court for fresh disposal. The Trial Court was directed to ensure that the Appellant is provided with legal assistance throughout the trial if he is unable to engage a Counsel of his choice. Additionally, Justice C.K. Prasad, in a separate judgment, concurred that the Appellant's conviction and sentence should be set aside due to the lack of a fair trial but opined against remanding the case for a fresh trial, directing instead that the Appellant be deported to his country.
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2012 (1) TMI 402
Issues involved: Appeal against the judgment of the Bombay High Court dismissing a writ petition to quash a detention order u/s 3(1) of the COFEPOSA Act, 1974.
Judgment Summary:
1. The appeal was against the Bombay High Court's order dismissing a writ petition to quash a detention order passed by the Detaining Authority u/s 3(1) of the COFEPOSA Act, 1974 on 20th July, 2011.
2. The detention order was challenged on the grounds that the appellant's license had already been suspended, which effectively controlled the intention of the Detaining Authority to prevent further offenses.
3. The State's submission that the detention order aimed to prevent future offenses was contradicted by the suspension of the appellant's license.
4. Reference was made to a previous judgment where a similar point led to the quashing of a detention order, supporting the decision to quash the impugned order in this case.
5. The Court, without delving into other issues, concluded that the detention order could not stand and was therefore quashed, with the detenue to be set at liberty forthwith.
6. In a separate matter (SLP (Crl.)No. 175 of 2012), the Court declined to interfere with the detention order passed, and the appeal was dismissed accordingly.
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2012 (1) TMI 401
Issues Involved:1. Validity of the conviction u/s 302/149, 307/149, and 452 IPC. 2. Examination of witnesses and the reliability of their testimonies. 3. Applicability of Section 149 IPC. 4. Evaluation of evidence and injuries sustained by the victims. Summary:1. Validity of the conviction u/s 302/149, 307/149, and 452 IPC:The appeal was preferred against the judgment of the High Court of Allahabad, which upheld the Trial Court's conviction of the appellants u/s 302/149, 307/149, and 452 IPC, sentencing them to life imprisonment, seven years, and three years of rigorous imprisonment respectively. 2. Examination of witnesses and the reliability of their testimonies:The appellants argued that injured witnesses Tarawati and Chandra Bose, and independent eyewitnesses Roshan Singh, Hukum Singh, and Jagdish were not examined, suggesting the prosecution withheld material evidence. The prosecution countered that the FIR was promptly lodged, and the roles of the appellants were clearly stated. The court noted that the evidence of closely related witnesses, if found reliable and trustworthy, cannot be discarded merely due to their relationship with the victim. 3. Applicability of Section 149 IPC:The appellants contended that Section 149 IPC was not applicable as the prosecution failed to prove an unlawful assembly with a common object. The court, however, held that the common object could develop at the time of the incident and that the appellants' actions fell within the scope of Section 149 IPC. The court cited precedents to support the view that knowledge of the likelihood of an offence being committed in prosecution of the common object is sufficient to attract Section 149 IPC. 4. Evaluation of evidence and injuries sustained by the victims:The court examined the injuries sustained by the victims, corroborated by medical reports and witness testimonies. The evidence showed that the appellants and other accused were armed and participated in the crime, resulting in the death of Onkar Singh and injuries to Tarawati and Chandra Bose. The court found no reason to doubt the prosecution's case and held that the appellants' actions were in concert with others to achieve a common object. Conclusion:The Supreme Court dismissed the appeal, finding no merit in the arguments presented by the appellants. The court upheld the conviction and sentences awarded by the lower courts, concluding that the facts and circumstances of the case warranted no interference.
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2012 (1) TMI 400
Issues involved: Appeal against CIT(A)'s order deleting addition u/s. 36(1)(va) read with sec. 2(24)(x) of the Income Tax Act, 1961 for late deposit of employees' contribution to PF.
Summary:
The appeal by revenue challenges the CIT(A)'s decision to delete the addition made u/s. 36(1)(va) read with sec. 2(24)(x) of the Act regarding late deposit of employees' PF contribution. The Assessing Officer disallowed the amount for delayed payment, but the CIT(A) ruled in favor of the assessee, citing precedents and directing the deletion of the disallowance. The issue was found to be covered in favor of the assessee by a decision of the jurisdictional High Court. The Tribunal remitted the matter back to the Assessing Officer to verify if the payment was made within the due date of filing the return. If so, the addition should be deleted in full. The appeal of the revenue was allowed for statistical purposes.
In conclusion, the Tribunal upheld the CIT(A)'s decision to delete the addition made u/s. 36(1)(va) read with sec. 2(24)(x) of the Act for late deposit of employees' PF contribution, based on the payment being made before the due date of filing the return.
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2012 (1) TMI 399
Issues Involved:
1. Whether the deposit made by the assessee in its NRO bank account is unexplained.
2. Whether the CIT(A) is justified in restricting the addition made u/s 69 of the I.T. Act, 1961 by applying the peak credit theory.
Issue 1: Unexplained Deposit in NRO Bank Account
The assessee contended that the deposits in the NRO bank account were sourced from withdrawals made from his father's account and his NRE account, which were funded by remittances from Khazakhstan. The AO rejected this explanation, noting gaps between withdrawals and deposits, and added Rs. 45,32,100/- u/s 69 as unexplained income. The CIT(A) applied the peak credit theory and confirmed an addition of Rs. 31,16,600/-.
Issue 2: Application of Peak Credit Theory
The CIT(A) found merit in the AO's observation that the assessee failed to provide satisfactory evidence for the source of cash deposits. The CIT(A) noted that the remittances were for "financial support" and questioned the availability of funds for deposits months after withdrawals. Despite this, the CIT(A) applied the peak credit theory but did not give credit for withdrawals from the father's account, resulting in a confirmed addition of Rs. 31,16,600/-.
Assessee's Argument
The assessee argued that the deposits were fully verifiable from the cash flow statement, showing withdrawals from the father's account and remittances from Khazakhstan. The assessee cited several cases to support the claim that the time gap between withdrawals and deposits should not disqualify the explanation if the source is established and not utilized elsewhere.
Tribunal's Decision
The Tribunal noted that the assessee had not maintained books of account and the onus was on him to explain the withdrawals and deposits. Based on human probability and the pattern of withdrawals and deposits, the Tribunal inferred that the funds were likely used for business purposes. The Tribunal found it reasonable to estimate that deposits to the extent of Rs. 2 lakh might be out of business funds.
Conclusion
The Tribunal restricted the addition confirmed by the CIT(A) from Rs. 31,16,600/- to Rs. 2 lakh, partly allowing the assessee's appeal and dismissing the revenue's appeal. The order was pronounced in open court on 31.01.2012.
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2012 (1) TMI 398
Issues Involved:
1. Legally enforceable debt or liability.
2. Rebuttal of presumption u/s 139 of the Negotiable Instruments Act.
3. Contradictory versions regarding the issuance of the cheque.
4. Evidentiary requirements and burden of proof.
Summary:
1. Legally enforceable debt or liability:
The appellant filed a complaint u/s 138 of the Negotiable Instruments Act alleging that the first respondent issued a cheque to discharge a loan borrowed by her husband. The cheque was dishonored due to insufficient funds. The trial court acquitted the first respondent, holding that the appellant failed to prove the existence of a legally enforceable debt or liability.
2. Rebuttal of presumption u/s 139 of the Negotiable Instruments Act:
The trial court found that the first respondent successfully rebutted the presumption u/s 139 of the Act. The appellant did not produce the promissory note or any books of account to prove the debt. The first respondent issued a notice (Ex.D-2) to the appellant, alleging that the cheque was obtained as security and not for the discharge of any debt.
3. Contradictory versions regarding the issuance of the cheque:
The appellant provided contradictory statements regarding the purpose of the cheque. Initially, it was claimed that the cheque was issued as a guarantor, but later, it was stated that it was issued as security for the loan. The trial court noted these inconsistencies and found them significant in rebutting the presumption.
4. Evidentiary requirements and burden of proof:
The appellant failed to produce crucial evidence such as the promissory note and did not examine the attestors of the note. The trial court observed variations in the handwriting on the cheque, suggesting it might have been filled in by the appellant. The court held that the first respondent's evidence and circumstances were sufficient to rebut the presumption of a legally enforceable debt.
Conclusion:
The High Court upheld the trial court's judgment of acquittal, confirming that the first respondent successfully rebutted the presumption u/s 139 of the Negotiable Instruments Act. The appellant's failure to provide necessary evidence and the inconsistencies in his statements were critical in the court's decision. The criminal appeal was dismissed.
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2012 (1) TMI 397
Issues involved: Appeal against order u/s 263 of the Income-tax Act for the assessment year 2006-2007.
Summary:
The appeal was filed by the assessee against the order of the Commissioner of Income Tax, Chennai for the assessment year 2006-2007. The main contention raised was regarding the show cause notice issued u/s 263 of the Act, challenging the jurisdiction of the CIT to assume such authority for the said assessment year. The appellant argued that the notice was premature and the proceedings u/s 263 were null and void. The CIT had set aside the original assessment order due to an audit objection related to the set off of unabsorbed depreciation from one company to another, under section 72A of the Act. The appellant contended that the CIT's order was solely based on the audit objection and not valid in the eyes of the law.
The appellant's representative argued that the Assessing Officer had already allowed the set off of loss during the assessment proceedings, and therefore, the CIT's intervention u/s 263 was unwarranted. On the other hand, the Senior DR argued that the Assessing Officer had not properly examined the applicability of section 72A and had accepted the claims made by the assessee without due diligence, making the original assessment order erroneous and prejudicial to revenue.
After considering the submissions, the Tribunal found that the Assessing Officer had not discussed the issue of set off of loss u/s 72A in the assessment order. The appellant failed to provide evidence of any enquiry made by the Assessing Officer on this matter. Consequently, the Tribunal upheld the CIT's order u/s 263, stating that there was no mistake warranting interference. The appeal was dismissed, and the decision was pronounced on 11th January 2012.
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2012 (1) TMI 396
Issues involved: Appeal by department against CIT(A) order deleting addition for disallowance of provision of warranty debited to P & L Account.
Departmental Appeal:
- Grounds raised by department include deletion of addition amounting to Rs. 1,42,01,453 made on account of disallowance of provision of warranty.
- AO disallowed the claim based on lack of scientific basis for provision.
- Assessee argued provision was made in compliance with Accounting Standard 29.
- CIT(A) deleted the addition based on earlier order for A.Y. 2005-06.
- ITAT upheld CIT(A) decision citing similar facts to previous year's case.
Cross Objection by Assessee:
- No specific relief sought, only support for CIT(A) order.
- Cross objection deemed infructuous as department's appeal was dismissed and CIT(A) order upheld.
The ITAT Bangalore Bench, comprising Shri N.K. Saini and Smt. P. Madhavi Devi, heard the appeal by the department and cross objection by the assessee against the CIT(A) order dated 11.01.2011. The department's appeal focused on the deletion of addition related to disallowance of provision of warranty, amounting to Rs. 1,42,01,453. The AO disallowed the claim stating lack of scientific basis, while the assessee argued compliance with Accounting Standard 29. The CIT(A) deleted the addition based on an earlier order for A.Y. 2005-06, which was upheld by the ITAT citing similar facts. The cross objection by the assessee, supporting the CIT(A) order, was deemed infructuous as the department's appeal was dismissed and CIT(A) order upheld.
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2012 (1) TMI 395
Issues: The issues involved in the judgment are (a) deletion of addition made by A.O. u/s 68 of the Income Tax Act, 1961 on account of sale of shares and (b) deletion of addition made by AO on account of gifts received.
Deletion of Addition u/s 68 - Sale of Shares:
The assessment year in question is A.Y. 2005-06. The Tribunal affirmed the deletion of addition made by A.O. of Rs. 2,18,24,010/u/s 68 of the Income Tax Act, 1961 on account of sale of shares of Talent Infoway Ltd. The Counsel for the Revenue conceded before the ITAT that the issue is covered against the Revenue by a previous decision of the Court. As the decision was based on this concession, the Court held that this question cannot be entertained, and the Revenue may pursue other legal remedies.
Deletion of Addition - Gifts Received:
Regarding the addition made by AO on account of gifts received, the Tribunal found the gifts to be genuine based on specific reasons recorded in its order. The Tribunal's decision was based on a factual finding, and therefore, the Court held that this question cannot be entertained. Consequently, the Court dismissed the Appeal.
This judgment highlights the importance of legal precedents and factual findings in tax matters, emphasizing the need for parties to present strong legal arguments and evidence to support their case before the Tribunal.
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2012 (1) TMI 394
Issues Involved:
1. Quashing of the entire proceeding including the order taking cognizance.
2. Stay of further proceedings of Complaint case no. 378C/2008 till the final disposal of the reference case pending in the Hon'ble High Court, Calcutta.
Summary:
Issue 1: Quashing of the entire proceeding including the order taking cognizance
The petitioners invoked the extra-ordinary jurisdiction of the High Court u/s 482 of the Cr. P.C, seeking to quash the entire proceeding including the order taking cognizance dated 18.11.2008 in Complaint case no. 378C/2008 by the Special Judge, Economic Offences, Patna. The Union of India, through the Assistant Commissioner, Central Excise Division, Bhagalpur, filed the complaint against the petitioners for offences u/s 9(i)(b), 9(i)(c), and 9(AA) of the Central Excise and Salt Act, 1944, alleging clandestine removal of branded chewing tobacco and evasion of central excise duty amounting to Rs. 69,81,987.84/-. The Chief Commissioner of Central Excise, Ranchi Zone, Patna, granted sanction for prosecution.
Issue 2: Stay of further proceedings of Complaint case no. 378C/2008
The petitioners, during the hearing, pressed for a stay of further proceedings of Complaint case no. 378C/2008 until the final disposal of the reference case pending in the Hon'ble High Court, Calcutta. They argued that the Hon'ble Tribunal had already stayed the recovery of central excise duty and penalty till the final disposal of the reference application by the Hon'ble High Court, Calcutta. The reference application raised significant legal questions, including whether the extension of the period of limitation beyond six months was justified in the absence of specific allegations of fraud or collusion, and whether the conclusion of clandestine removal of goods was based on suspicion and surmises.
The petitioners cited the decision in Commissioner of Income Tax, Mumbai vs Bhupen Champak Lal Dalal and another, where the Hon'ble Supreme Court held that criminal proceedings could be stayed if the conclusions of appellate authorities had a bearing on the criminal case. The petitioners argued that similar principles should apply to their case under the Central Excise Act, 1944.
The opposite party contended that the petition was not maintainable and that the petitioners should have filed a writ petition. However, the court held that it had ample power u/s 482 of the Cr.P.C to do complete justice between the parties.
Conclusion:
The court concluded that to avoid contradictory decisions, further proceedings of Complaint case no. 378C/2008 should be stayed until the final decision of the reference application pending before the Hon'ble High Court, Calcutta. The petition was disposed of with the direction that the learned Special Judge, Economic Offences, Patna, shall not pronounce judgment in Complaint case no. 378C/2008 until the final decision of the reference pending before the Hon'ble High Court, Calcutta in CEXA 3 of 2001.
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2012 (1) TMI 393
Issues involved: Appeal against order of ld. Commissioner of Income-tax (Appeals) for assessment year 2005-06 regarding levy of interest under section 234C and applicability of retrospective amendment to tax liability.
Levy of interest under section 234C:
The assessee challenged the levy of interest under section 234C amounting to Rs. 91,17,582, contending that tax liability is on book profits u/s 115JB and interest cannot be levied on additions due to retrospective amendment. The Tribunal admitted the additional ground of appeal, stating it is purely legal and no fresh scrutiny of facts is needed. The senior counsel argued that the assessee's claim for deduction against book profit was correct based on previous decisions, and interest under section 234C cannot be imposed where tax liability arises due to retrospective amendment. The Tribunal agreed with the assessee, citing the amendment in section 115JB and previous legal interpretations, and directed the Assessing Officer to recompute the interest under section 234C.
Applicability of retrospective amendment to tax liability:
The senior counsel highlighted that the capital gains tax liability arose in the last quarter and was paid accordingly, invoking the proviso to section 234C(1)(b). This aspect was not considered by the Assessing Officer. The Tribunal, after considering the submissions, remanded the matter to the Assessing Officer for reevaluation of interest under section 234C in light of the observations made.
This judgment by the Appellate Tribunal ITAT Kolkata addressed the issues of levy of interest under section 234C and the impact of retrospective amendments on tax liability for the assessment year 2005-06. The Tribunal allowed the appeal for statistical purposes, directing a reassessment of interest under section 234C based on the legal interpretations and amendments discussed during the proceedings.
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9911796707
