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Showing 21 to 40 of 1719 Records
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2020 (1) TMI 1703
Reopening of assessment - statutory requirement of Section 151 - as argued approval for re-opening by the Pr. CIT was deemed as mechanical and lacking proper satisfaction - unexplained cash deposits - HELD THAT:- Approval for re-opening of the assessment was given by Pr. CIT in a mechanical manner and without application of mind and does not meet the statutory requirement of Section 151 of the Act. Thus re-opening of assessment is bad in law.
AO has not applied his mind to the information received prior to recording of reasons, that the assessment should be re-opened. The fact is that the bank accounts do not belong to the assessee. This is accepted by the AO. No verification is done by the AO to the information received.
As decided in SIGNATURE HOTELS (P) LTD. [2011 (7) TMI 361 - DELHI HIGH COURT] information given by Director of Income-tax (Investigation), that amount received by assessee from other company was nothing but accommodation entry and assessee was beneficiary, was not sufficient to reopen assessment when Assessing Officer did not apply his, own mind to that information.
Appeal of the assessee allowed by quashing the re-opening of assessment made u/s 148.
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2020 (1) TMI 1702
Dishonour of Cheque - existence of a legally enforceable debt or liability - rebuttal of presumption u/s 139 of NI Act - Acquittal of accused - HELD THAT:- The standard of proof for rebutting the presumption is that of preponderance of probabilities and not beyond reasonable doubt. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence because Section 139 imposed an evidentiary burden and not a persuasive burden.
There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. For acquitting accused, the Trial Court observed that the prosecution had failed to prove its case.
The opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal cannot be interfered with. There are no fault with the judgment of the Trial Court.
Appeal dismissed.
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2020 (1) TMI 1701
Nature of receipts - carbon receipts - revenue v/s capital receipt - ITAT upholding the order of the CIT(A) for deleting the addition - HELD THAT:-is already considered by us in [2020 (1) TMI 258 - GUJARAT HIGH COURT] by the order of even date and accordingly, the appeal stands dismissed so far as Question No.2(A) is concerned.
Additional depreciation - plant and machinery used for less than 182 days - CIT(A) allowed additional depreciation of 10% for the assessment year 2011-12 adopting purposive approach to the issue - HELD THAT:- On perusal of the provision of Section 32(1) of the Act and proviso thereto read with Section 32(1)(iia) it is clear that the assessee can claim additional depreciation at the rate of 20% of the actual cost of the plant and machinery purchased during the financial year - Such allowance of the depreciation can be claimed only to the extent of 10%, if the plant and machinery purchased by the assessee is used for less than 182 days. Accordingly, the assessee has claimed the additional depreciation to the extent of 10% only for Assessment Year 2010-11, and therefore, the claim of remaining 10% additional depreciation is made for the Assessment Year 2011-12.
Assessee can claim remaining additional depreciation of 10% in the assessment year 2011-12. The legislature has also thought it fit to clarify the situation by inserting third proviso to Section 32(1) by the Finance Act, 2015 with effect from 01.04.2016. According to third proviso to Section 32(1) of the Act, the assessee can claim the remaining additional depreciation in the subsequent assessment year.
Thus, both the authorities below have rightly held that the assessee is entitled to remaining additional depreciation of 10% - Decided against revenue.
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2020 (1) TMI 1700
Reopening of assessment u/s 147 - determination of the indexed cost of capital asset sold as determined by the AO - Whether market value fixed by the Sub-registrar at Rs. 250/- per sft cannot be applied against the cost of construction estimated by the Registered Valuer? - AR submitted before us that the entire addition was due to the fact that the assessee had failed to produce evidence with respect to the cost of acquisition / construction of his immovable property and pleaded by stating that one more opportunity may be provided.
HELD THAT:- We do not appreciate the fact that the assessee had failed to produce the required evidence before the ld. AO at the time of assessment proceedings and further failed to do so before the first appellate authority, considering the prayer of the assessee, in the interest of justice, we hereby remit the appeal back to the file of the Ld. AO with directions to accept and examine any fresh evidence produced by the assessee and thereafter decide the matter in accordance with law and merit afresh.
Also direct the assessee to co-operate with the ld. Revenue Authorities in their proceedings failing which the ld. Revenue Authorities shall be at liberty to adjudicate the issue based on the materials on record. Appeal of the assessee is allowed for statistical purposes
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2020 (1) TMI 1699
Job-work - manufacture of “Cadbury Perk with Glucose Energy” on behalf of M/s Mondelez - benefit of N/N. 03/2006 (Sl. No. 19) - Inclusion of dealer’s margin, RD markup and post manufacturing expenses claimed by the appellant in assessable value - extended period of limitation - demand of differential duty alongwith interest - imposition of penalties - it was held by CESTAT that 'There is no evidence on record to show that this actually pertains to R&D expenses. Therefore, inclusion of R&D mark up in the assessable value is not sustainable and it deserves to be set aside.'
HELD THAT:- There are no reason to interfere with the impugned order dated 6 August 2019 passed by the Customs, Excise & Service Tax Appellate Tribunal, Regional Bench, Hyderabad.
Appeal dismissed.
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2020 (1) TMI 1698
Validity of Notice u/s 142 (1) - violation of natural justice - notice was digitally signed by the AO at 4.59 p.m on 17.12.2019 calling upon the petitioner to furnish the details by 11.30 a.m. on the following date on 18.12.2019. The petitioner responded to the same, the following date at about 16.24 hours i.e, at 4.24 p.m. on 18.12.2019 .
HELD THAT:- The impugned order came to be passed by the assessing officer and was digitally signed by him at 4.28 p.m on the following date without hearing the petitioner. It is evident that the impugned order was passed as against the Principle of Natural Justice. We also find sufficient grounds to interfere.
The impugned order is therefore setaside and the case is remitted back to the respondent to pass speaking order after considering the representation of the petitioner filed on 18.12.2019 along with the reply to the petitioner before the assessing officer who was incharge of the case earlier.
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2020 (1) TMI 1697
Revision u/s 263 - Examination of Permanent Establishment (PE) under Article 5(1) and Article 5(5) of the India-Singapore DTAA - only case of the Ld. CIT is that the AO should have examine the applicability of fixed place PE under Article 5(1) as the seismic vessels through which the assessee carried out activities in India constitute a fixed place PE through which it has carried out the business activity in India - whether assessee who is carrying out specific activity of providing services or facilities in connection with the exploration, exploitation or extraction of mineral oils, which activity falls within the scope and definition given in Article 5(5), then whether general provision of Article 5(1) would apply or not?
HELD THAT:- There are three types of PE contemplated under Article 5, firstly an establishment which is carrying out a business from a fixed place of business like office, branch, etc. and second type is agency PE. The third type of PE is for construction and installation sites; supervisory or carrying out assembly project on a site, or services or facilities in connection with the exploration, exploitation or extraction of mineral oils etc., which are specific activity based PE generally with a threshold period, which here in this case is 183 days.
Article 5(1) contains the general rule for permanent establishment that it must be a fixed place business at the disposal of the enterprise through which the business enterprise carries on its business. Article 5(2) contains illustrative list of places of business which prima facie constitute PE, provided it satisfies the requirement of Article 5(1). Article 5(3) to 5(5) contains special rule for construction and installation site or services or facilities in connection with the exploration, exploitation or extraction of mineral oils etc. and it is a limitation on the general provision of Article 5(1).
Once activities as defined para 5 or 3 are attracted, the minimum period test has to be applied and being specific activity based article, it will prevail over general rule of Article 5(1). If such activity based PE are to seen from the general rule perspective only then there is no requirement of such clauses in the treaty and threshold period. In that case there would be fixed place PE and agency PE.
Even though the specific activity based PE can have a fixed place through which it carries out the activities, but prescribed threshold or minimum period has to be read into and such time period thus puts a limitation on the general rule of Article 5(1).
Hon’ble Uttarakhand High Court in the case of DIT vs. Hyundai Heavy Industries Co. Ltd. [2018 (5) TMI 1552 - UTTARAKHAND HIGH COURT] have dealt the similar issue wherein, held that division bench of this court upheld the findings of the ITAT that Article 5(3) is an exception to Article 5(1) and 5(2) and would prevail notwithstanding Article 5(1) and 5(2). Since, the former is a specific provision.
Thus, the conclusion of the Assessing Officer is consonance with judgment of jurisdictional High Court; therefore, it cannot be held that the assessment order is erroneous in so far as prejudicial to the interest of the Revenue and therefore, the Ld. CIT was not justified in cancelling the assessment order in his revisional jurisdiction u/s. 263 of the Act. Moreover, AO has not only carried out proper enquiry but also examined the issue in detail and reach to a conclusion which is permissible view and Ld. CIT cannot cancel the assessment based on his opinion. Accordingly, the impugned order passed u/s. 263 is quashed. Appeal filed by the assessee is allowed.
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2020 (1) TMI 1696
Withdrawal of appeal - HELD THAT:- Appellant have availed the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, which has been accepted by the Department and discharge certificate has also been issued by the Designated Committee, which has also been produced on record. In view of the discharge certificate, the present appeals are dismissed as deemed to be withdrawn.
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2020 (1) TMI 1695
Conviction and sentence of the appellant for commission of offence punishable u/s 489B and 489C of the Indian Penal Code - possession of 400 pieces of FICNs - discrepancies in evidence and witness credibility - evidence of official witnesses have not been supported by the independent witnesses - HELD THAT:- There is no evidence that the appellants had sold, received or used any counterfeit notes. However, it has been argued on behalf of the prosecution that the appellant was "otherwise trafficking in" counterfeit notes by knowingly transporting a large volume of forged currency notes in a bag through a public road and had reached the ferry ghat when they were apprehended. Hence, he had committed the offence under section 489B of the Indian Penal Code.
The appellant had not been called to answer a charge of "otherwise trafficking in" fake currency notes by transporting such notes through a public thoroughfare for commercial use. To convict the appellant on such score at the appellate stage without reframing the charge would cause prejudice to them and occasion failure of justice. In this factual backdrop, it is constrained to hold that the appellant is entitled to an order of acquittal under section 489B of the IPC in the present case.
Whether the examination of the appellant under section 313 Cr.P.C. is not in consonance with the law? - HELD THAT:- Although the questions posed to the appellant may have been framed in a more elegant manner, impact of such questions and the intelligent answers given by the appellant to them, does not give an impression that the appellant failed to understand the meaning and purport of those questions and had suffered any prejudice in that regard - Reliance has been placed on Mongat Ram Singh & Anr. Vs. State of West Bengal, [2004 (10) TMI 643 - CALCUTTA HIGH COURT]. In the cited decision, this court held that questions posed to the appellant were of such nature that it had caused prejudice to the appellant. In fact, the prosecution also admitted to such fact - In the present scenario the aforesaid ratio is clearly distinguishable.
The conviction and sentence of the appellant under section 489C of the Indian Penal Code is upheld - the conviction and sentence of the appellant for the offence punishable under section 489B IPC is set aside - appeal allowed in part.
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2020 (1) TMI 1694
Cornering of the shares meant for retail investors in the IPO of YES Bank - Offences punishable u/s 420, 467, 468 and 471 read with 34 of the IPC - The said F.I.R.s have been lodged by the SEBI - Seeking withdrawal of this petition with liberty to raise the question of effect and legal consequences of Order dated 07.12.2009 passed by the Securities and Exchange Board of India (SEBI), before the High Court.
HELD THAT:- Prayer is allowed. Accordingly, the special leave petition is dismissed as withdrawn with the liberty aforesaid.
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2020 (1) TMI 1693
Dishonour of Cheque - preponderance of probability - conviction of accused of the offence under Section 138 of the NI Act - preponderance of probablities - Burden of proof u/s 139 of NI Act - HELD THAT:- It is true that the accused had not adduced any evidence from his side before the trial Court. However, the accused filed an application under Section 391 Cr.P.C. before the appellate Court, which was allowed. Thereafter, the complainant challenged the order passed by the appellate Court before this Court. This Court confirmed the order passed by the appellate Court, thereby permitting the accused to adduce additional evidence.
It is the case of the accused that he had joined various chits run by the complainant and at that time, the complainant had collected blank cheques and promissory notes which have been misused in this case. In fact, the accused has accepted his signature in the cheque (Ex-P14), but, has taken a stand that he had issued a blank one.
As held by the Supreme Court in Bir Singh Vs. Mukesh Kumar [2019 (2) TMI 547 - SUPREME COURT], in view of Section 20 of the NI Act, it is not illegal for the complainant to fill up the cheque. However, the appellate Court has gone deeply into the records of the complainant and has returned a finding that the claim of Rs. 21,09,000/- is not supported by the document of the complainant themselves.
In Rangappa Vs. Sri Mohan [2010 (5) TMI 391 - SUPREME COURT], the Supreme Court has held that the accused can discharge the burden under Section 139 of the NI Act by preponderance of probability. In this case, the accused has demonstrated to the appellate Court that the account statement filed by the complainant themselves does not support the cheque amount.
It is trite that, from the evidence on record, when two views are possible, the view that probablises the defence case merits acceptance.
In such perspective of matter, this Court does not find any infirmity in the acquittal of the accused by the Sessions Court, warranting interference - this criminal appeal is dismissed.
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2020 (1) TMI 1692
Deduction u/s 80P - assessee has violated the provisions of Karnataka Co-operative Societies Act, 1959 - the assessee was having 610 Associated Members with the assessee out of total 1559 Members and the percentage of Associated Members was 40% and as per the provisions of Karnataka Societies Act, 1959, a Co-operative Society can have a maximum of 15% Associated Members of total regular members prescribed under the Karnataka Societies Act, 1959 - HELD THAT:- We decide the issue against the assessee and hold that the assessee is not eligible for deduction under section 80P of the IT Act in the facts of the present case because it is an undisputed fact in the present case that the assessee has violated the provisions of Karnataka Co-operative Societies Act, 1959 and therefore the judgment rendered in the case of Citizen Co-operative Society Ltd. [2017 (8) TMI 536 - SUPREME COURT] is squarely applicable and hence decide the issue by respectfully following the judgment of the Hon’ble Apex Court.
Appeal of the assessee is dismissed.
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2020 (1) TMI 1691
Right to property - forceful dispossession of property without any legal sanction - contention of the State that the Appellant or her predecessors had “orally” consented to the acquisition is completely baseless - HELD THAT:- This Court in State of Haryana v. Mukesh Kumar [2011 (9) TMI 1182 - SUPREME COURT] held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension.
The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it.
In the present case, the Appellant being an illiterate person, who is a widow coming from a rural area has been deprived of her private property by the State without resorting to the procedure prescribed by law. The Appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century. The cause of action in the present case is a continuing one, since the Appellant was compulsorily expropriated of her property in 1967 without legal sanction or following due process of law. The present case is one where the demand for justice is so compelling since the State has admitted that the land was taken over without initiating acquisition proceedings, or any procedure known to law.
The Respondent–State is directed to pay the compensation on the same terms as awarded by the Reference Court alongwith all statutory benefits including solatium, interest, etc. within a period of 8 weeks, treating it as a case of deemed acquisition. An Affidavit of compliance is directed to be filed by the State before this Court within 10 weeks - The RespondentState is directed to pay legal costs and expenses of Rs.1,00,0000/ to the present appellant.
Appeal allowed.
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2020 (1) TMI 1690
Directing the parties to maintain status quo on spot with respect to the suit property till the disposal of the main suit - Order 39 Rule 1 & 2 CPC - HELD THAT:- The order impugned, which is a discretionary order passed by the appellate Court, does not call for any interference in the exercise of power of superintendence vested in this Court under Article 227 of the Constitution.
It is well settled that injunction is an interim discretionary relief granted pending adjudication of the suit. Discretion has to be exercised keeping in mind the principles governing grant of injunction. Appellate Court would not normally interfere with the exercise of discretion if the conclusion reached by the trial Court is based on the material on record. However, in the present case, the appellate Court on a careful consideration of the material on record came to a definite conclusion that the defendants were in possession of the suit property and, therefore, cannot be deprived of its use and, accordingly, set aside the order of the trial Court - the High Court could not have invoked its jurisdiction under Section 115 of the CPC.
From the perusal of impugned order, it is revealed that the appellate Court has reversed the order of the trial Court, directing the parties not to alienate the suit property in any manner which order very well preserve the suit property till the disposal of the main suit.
This Court finds no merit in this petition and the same is, accordingly, dismissed.
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2020 (1) TMI 1689
Dishonour of Cheque - conviction of appellant - compromise of matters between the parties - HELD THAT:- Having perused the averments made in Criminal Miscellaneous Petition filed by the applicant-appellant, as also the statement made by respondent No.1-complainant in the affidavit dated 08.11.2019, more particularly keeping in view the settlement arrived at between the parties, the application(s) is allowed and the conviction and sentence of two years’ rigorous imprisonment with fine of Rs.5,000/- awarded to the appellant under Section 138 of the Negotiable Instruments Act, 1881 by the trial court as affirmed by the appellate court and the High Court, is set aside.
Appeal disposed off.
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2020 (1) TMI 1688
Penalty u/s 40(2) of the JVAT Act on petitioner company - alleged concealment of purchases made by the company - HELD THAT:- The stand of the petitioner company has been ratified by the concerned authorities and it has been found that the petitioner company is engaged in the business of power transmission only, and whatever goods were purchased by the petitioner, were the capital goods for installation and transmission of the electricity in the State of Jharkhand. These goods were never sold by the petitioner company, and the Assessing Authority has found the tax liability of the petitioner, to be 'Nil'. As such, the very basis on which the penalty was imposed upon the petitioner company, does not exist anymore.
The original order dated 29.1.2016, imposing penalty, shows that under Section 40(2) of the JVAT Act, the penalty equal to three times the amount of tax payable was imposed. In view of the fact that the tax liability has now been found to be 'Nil', we find that no penalty could be imposed upon the petitioner company for the simple reason that 'Nil' multiplied by three, shall also be 'Nil' only.
Reliance placed in the decision of the Hon’ble Apex Court in Mukerian Papers Ltd.'s case [1991 (2) TMI 348 - SUPREME COURT], laying down the law that once there was no tax liability, there could be no question of penalty or interest on the unpaid amount of tax.
The impugned order imposing penalty upon the petitioner company, the order passed by the Appellate Authority as well as the Judgment passed by the Tribunal, in Revision Petition are hereby set aside - Application allowed.
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2020 (1) TMI 1687
Interest on refunded amount which was deposited during the investigation - HELD THAT:- It is found that Commissioner (Appeals) has observed that the Adjudicating Authority while granting refund of the deposited amount did not discussed the issue of grant of interest. If that be so the matter needs to be remanded to the Adjudicating Authority for deciding the appellant’s claim of interest.
As such the impugned order is set aside and the matter remanded to Original Adjudicating Authority for fresh decision on the disputed issue. Appellants may be granted an opportunity to put forth their case before the Adjudicating Authority and to refer to and rely upon various decisions which they may choose.
Appeal allowed by way of remand.
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2020 (1) TMI 1686
Locus of Appellants to challenge the judgment - Consideration of substantial questions of law in Second Appeal u/s 100 of the Code of Civil Procedure - Right to the property under an oral gift from his grandfather - Validity of Plaintiff's claim to half share in the property - Impact of Confirmation Deeds - HELD THAT:- Appellants while claiming right to the property had also referred to the Deed of Confirmation dated 28.06.2012 and 29.06.2011 whereunder the Sale Deed dated 29.07.1975 executed by the father of the Plaintiff had been confirmed by the Plaintiff and if that be the position, the effect of the same was also required to be examined and determined. This is for the reason that even if the Trial Court had held the Defendants No. 6 to 9 in the suit were not bonafide purchasers, the said Confirmation Deeds dated 28.06.2012 and 29.06.2011 had come into existence subsequent to disposal of the suit on 17.04.1982 and prior to disposal of the Regular Appeal on 07.11.2012. In that regard, even if the contention on behalf of the Plaintiff that there was another Sale Deed dated 01.02.1978 for the extent of 11 Acres 27 Guntas regarding which there is no confirmation is taken note, the existing Confirmation Deeds would in any event exclude the extent of 12 Acres sold under the Sale Deed dated 29.07.1975.
Thus, if the said documents which had come into existence at the fag end of the Regular Appeal was to alter the right of the parties and the purchase made by the Appellants is in the extent to which the Confirmation Deed relates, the effect thereto was also to be examined. The said consideration would be necessary in that circumstance since even if the Appellants are considered to be the purchasers during the pendency of the suit which was still a subject matter of the suit, whether Section 52 of the Transfer of Property Act will come into play if it stood excluded in view of confirmation. Even otherwise the working out of the equities in the final decree proceedings in the manner of allotment of shares thereto despite purchase during pendency of suit is also an issue which will arise after a proper consideration is made by the High Court, while answering the substantial questions of law and if need be by framing additional substantial questions in that background.
Since we are of the opinion that the substantial questions raised have not been appropriately dealt with and answered the matter would require reconsideration by the High Court.
To enable the same, the judgment dated 19.10.2016 passed in Second Appeal passed by the High Court of Gujarat at Ahmedabad is set aside. The matter is remitted to the High Court of Gujarat at Ahmedabad to restore Second Appeal on file and reconsider the same in the light of the above observation and in accordance with law.
The appeal stands disposed of accordingly.
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2020 (1) TMI 1685
Loss on account of deterioration of value on Govt. Security kept with the Bank - Depreciation on value of Government Securities as same is Stock-in-trade and valued at cost or market price whichever is lower - HELD THAT:- Assessee is a Co.op. Bank and as per mandate assessee has to keep certain investment with itself in order to maintain Statutory Liquidity Ratio (SLR) and Cash Reserve Ratio (CRR) if any loss or deterioration is caused to the value of stock, it is charged to profit and loss account. In our considered opinion, same is allowable as deduction u/s. 37 as Govt. Securities are part of liquid assets, stock in trade.
We draw support from a case in the matter of Pr. CIT, Patiala vs. State Bank of Patiala [2017 (2) TMI 125 - PUNJAB AND HARYANA HIGH COURT] where in similar facts and circumstances, relief was granted to the assessee. Law is well settled that the Securities held by the Bank are in the nature of stock-in-trade.
In view of the above, we direct A.O. to deleted addition as claimed by the assessee. Appeal filed by the Assessee is allowed.
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2020 (1) TMI 1684
Assessment order as barred by limitation u/s 153 - HELD THAT:- In this instant case, the assessment order was to be made by 31.03.2005. Whereas the impugned assessment order was made 2 years later - on 02.07.2007. Even the notice for hearing was issued after the period for making the order of assessment had already been time-barred - being notice dated 12.04.2007. We note that the CIT(A) has passed a reasoned order considering all the facts of the case and law applicable to the facts therefore it does not require any interference.
We decline to interfere in the order passed by the CIT(A), his order on this issue, is hereby upheld and the grounds of appeal raised by the Revenue is dismissed.
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9911796707
